A mortal heals the bitter with that which is sweet, but the Holy One, blessed be He, heals the bitter with that which is bitter.
TANHUMA, BESHALAH 24
The results of preliminary scientific research in medical centers throughout the world indicate a strong possibility that further investigation will yield a cure for one or more of a variety of medical conditions, including diabetes and Parkinson's disease. Further research will require experimentation upon abortuses and the treatment, if perfected, will entail transplantation of fetal tissue.
Public funding of such research has become a matter of controversy in the United States. A significant moral issue is posed by the fact that both research and treatment depend upon the use of fetal cadavers obtained through induced non-therapeutic abortions. Opponents of public funding argue that governmental support implies endorsement of all aspects of the research protocol and hence constitutes collusion in the abortion itself.1See James Bopp and James T. Burtchaell, “Human Fetal Tissue Transplantation Research Panel: Statement of Dissent,” Report of the Human Fetal Tissue Transplantation Research Panel, December, 1988, I, 63ff. It is also contended that the prospect of utilization of the abortus for a life-saving purpose may influence the decision of a woman who is vacillating with regard to a decision to terminate her pregnancy.2See Kathleen Nolan, “Genug ist Genug: A Fetus is Not a Kidney,” Hastings Center Report, December, 1988, p. 16, and James Bopp and T. Burtchaell, “Statement of Dissent,” pp. 52–63. The recommendations included in the report of the Human Fetal Tissue Transplantation Research Panel candidly concede that knowledge of the possibility for using fetal tissue in research and transplantation might constitute motivation, reason or incentive for a pregnant woman to have an abortion; see Report of the Human Fetal Tissue Transplantation Research Panel, I, 4. Both considerations are likely to result in a net increase in the number of abortions performed.
Analysis of the propriety of fetal tissue research from the perspective of Jewish law involves a number of rather complex questions. In addition to the aforementioned concerns, issues such as whether or not there is an obligation to accord the fetus burial, whether benefit may be derived from a fetal cadaver and how such concerns are to be balanced against possible preservation of life must be examined.
Most significantly, in formulating advice for purposes of influencing public policy in a non-Jewish society, these questions must be examined from the vantage point of the Noahide Code in which greater or lesser weight is assigned to each of these considerations than is the case in Jewish law as applied to Jews.
In this endeavor the author will delineate the halakhic considerations reflected in his minority report as a member of a consultative body of the National Institutes of Health, an agency of the U.S. government, that was empaneled for the purpose of making policy recommendations with regard to the morality of fetal tissue research.
I. The Status of the Fetus
One of the few explicit talmudic references to the status of a fetus occurs in Sanhedrin 91b. The Gemara records:
Said Antoninus to Rabbi [Judah the Prince], "When is the soul placed in man; at the time of conception or at the time of creation (i.e., when the fetus assumes human form as evidenced by the development of flesh, sinews and bones)?" [Rabbi] said to him, "From the time of creation." [Antoninus] responded, "Is it possible for a piece of meat to stand three days without salt without becoming putrid? Rather, from the time of conception." Said Rabbi: "This matter Antoninus taught me and Scripture supports him for it is written, 'And your decree has preserved my spirit'3I.e., my soul. Support from this verse bolstering Antoninus’ position is based upon the use of the term “pekidah” or “decree” in the phrase “and Your decree—u-fekudatkha.” The term employed by the Gemara for conception is also “pekidah” or “decree.” Rashi explains the use of this nomenclature by stating that the literal reference is to the moment the angel turns his attention to the “tipah” (i.e., the fertilized ovum) and brings it before God for a decree concerning its fate as described in the Gemara, Niddah 16b. (Job 10:12)."
A first and plausible reading of this exchange yields the impression that the subject of dispute between Antoninus and R. Judah is the precise time at which ensoulment takes place. Both R. Judah and Antoninus agree from the very outset that ensoulment takes place no later than the stage of gestation at which the developing embryo acquires a distinct human form; the dispute is only with regard to whether that phenomenon occurs even earlier, at the time of conception. R. Judah ultimately concedes that Antoninus is correct and that ensoulment takes place at the moment of conception. Nevertheless, a significant controversy exists among early post-talmudic rabbinic scholars with regard to whether or not feticide, even in the final stages of gestation, constitutes a form of homicide.4For a discussion of those sources see Contemporary Halakhic Problems, I, 326–339. Moreover, the narrative involving the exchange between Antoninus and R. Judah is completely ignored in the post-talmudic discussions of that question. Clearly, those authorities regarded this narrative as irrelevant to a determination of the status of the fetus insofar as the prohibition against feticide is concerned. Indeed, closer examination of the text reveals that it does not even follow from the debate between Antoninus and R. Judah that the fetal soul is endowed with immortality. Elsewhere, Sanhedrin 110b, the Gemara records that various Amora'im, in disagreement with one another, assert that immortality is acquired at the time of conception, upon circumcision or at the time that the child begins to talk. Thereupon, the Gemara adduces a tannaitic dictum that serves to establish that immortality is acquired only upon recitation of "Amen" by the child.5With regard to resurrection of nefalim, see Ketubot 111a and Avnei Nezer, Yoreh De ‘ah, no. 472, sec. 7. None of the commentaries finds any discrepancy between that discussion and the view reflected in the exchange between Antoninus and R. Judah.
It is of interest to note that these differing issues are eloquently illustrated in Plato's discussion of the immortality of the soul. Plato's Phaedo is devoted to the formulation of a series of elegant proofs demonstrating the immortality of the human soul. However, no attempt is made to demonstrate that the soul exists; rather, the existence of the soul is taken for granted. Given his understanding of the meaning of the term, this is not at all an unwarranted presumption on the part of Plato. Certainly, the existence of a soul as a discrete ontological entity requires demonstrative proof and indeed such a categorization of the soul follows from the proof of its immortality. The proposition assumed by Plato without proof is entirely different. What is assumed is simply the existence of both an animating force and a rational faculty.6Indeed, in the Phaedrus 246a, Plato defines the soul as “that which moves itself’ and in Book X of the Laws 892b-896d he not only speaks of the soul as the name that language gives to “the motion which can move itself’ but also states that all motions of the body are caused by prior movements of the soul. Hence, for Plato, the presence of motion in the body is tantamount to a demonstration of the existence of the soul. There is certainly no gainsaying the fact that man is a vital organism and that he is endowed with reason. Those verities are self-evident and require no dialectical demonstration. The duality of spirit and flesh, the independent ontological status of the soul and its immortality are entirely different issues. Since at least the time of Aristotle, philosophers and theologians, both non-Jewish and Jewish, have carefully coined diverse terms designed to distinguish between the animal soul and the rational soul. Antoninus and R. Judah must be understood as disagreeing with regard to when the animal soul, or the animating faculty, comes into existence.7See, for example, the concluding comments of R. Jonathan Eibeschutz, Binah le-‘Ittim, Hilkhot Yom Tov 1:23, who states that the ‘“spiritual soul’ comes to man at the moment of birth.” In light of the concluding statements of the discussion in Sanhedrin 110b it must be assumed that this soul is not endowed with immortality until a later time. The rational faculty may or may not be an ontological entity unto itself; as an independent ontological entity it may or may not be immortal. Those are the points Plato seeks to demonstrate in the Phaedo. Judaism also posits those truths with regard to the soul, but does so quite independently of the exchange between Antoninus and Rabbi Judah.
Consequently, it becomes apparent that ensoulment is a matter of philosophical, rather than halakhic, interest. Similarly, "personhood" is not a category of halakhic discourse. To be sure, there are statements in the writings of early rabbinic authorities to the effect that a fetus is not to be categorized as a nefesh.8See Rashi, Sanhedrin 72b, s.v. yaẓa rosho. However, the concept of a "nefesh" is not to be equated with the connotative meaning of the term "person." A treifah, i.e., a person suffering the loss or perforation of one of a list of specifically defined vital organs9Cf., however, Rambam, Hilkhot Roẓeaḥ 2:9. is not a nefesh; but a treifah is certainly a person. Leviticus 24:17 provides that one who smites a nefesh shall be put to death. Talmudic exegesis of that verse as recorded in the Gemara, Sanhedrin 78a, yields a dispute with regard to capital culpability of one who hastens the death of a person who has already sustained a mortal wound at the hands of a previous aggressor. The disagreement is with regard to whether the phrase "kol nefesh" should be rendered as "a complete nefesh" or as "any nefesh" in the sense of even a minimal nefesh. Nevertheless, all are in agreement that there is no capital culpability for the killing of a treifah. Quite obviously, a treifah is not a nefesh and hence if a treifah is the victim of homicide the perpetrator is not guilty of a capital crime; yet for virtually all other aspects of Jewish law a treifah must certainly be regarded as a person. In an analogous manner, as already noted, a person who murders an individual who has already sustained a mortal wound is not executed because the victim is not a "complete nefesh"; yet there is no question that, so long as vital signs remain present, the victim remains a "complete person" for all other matters of law. As is the case with regard to many words and phrases employed in any legal system, the word "nefesh" is a technical term endowed with a narrow and precisely defined halakhic meaning that is not readily translatable into non-technical terms employed in common parlance.
Judaism teaches that human life is sacred from the moment of generation of genoplasm in the gonads until decomposition of the body after death. At every stage along this continuum human tissue must be treated with dignity and respect. Not surprisingly, the manifestations of honor due the body and its components vary in a manner appropriate to the various stages of its development and degeneration. Similarly, sanctions imposed for infractions of the duties of honor and respect to be accorded the human organism in its various states are not uniform in nature. The question of the propriety of fetal tissue research centers upon the duties and obligations owed to the fetal cadaver. Those duties are the subject of significant discussion and controversy in the annals of rabbinic literature.
II. Burial of the Fetus
There is ample textual evidence demonstrating that burial of a nefel, a term that includes an abortus, a stillborn baby and a non-viable neonate, was the common practice among Jews in antiquity. For example, the Gemara, Ketubot 20b, speaks of places regarded as ritually impure by virtue of the fact that "women bury their nefalim" at such sites. Sifrei, Deuteronomy 19:14, declares that it is not permissible for a person to sell his gravesite in an ancestral burial ground.10Cf., Baba Batra 100b and Shulḥan Arukh, Ḥoshen Mishpat 217:7. Sifrei indicates that the prohibition becomes effective only upon actual use of the plot as a burial site but that interment of a nefel does not constitute dedication of the site as a burial ground for purposes of rendering this prohibition operative.11See R. Naphtali Zevi Judah Berlin, Emek ha-Neẓiv, ad locum. Nevertheless, on the basis of these sources alone, it is not possible to determine whether burial of a nefel is merely a customary practice or a normative halakhic requirement.12Cf., however, R. Joseph Saul Nathanson, letter of approbation to publication of Sifrei, Lemberg, 5626. The Palestinian Talmud, Shabbat 18:3, reports that the placenta was commonly buried in the ground. However, burial of the placenta is not depicted as a halakhic requirement but as a “pledge,” i.e., a symbolic acknowledgement that every person will eventually be buried, as manifested in the burial of the placenta immediately following birth.
One early authority, Hagahot Maimuniyot, in his commentary on Rambam's Hilkhot Milah 1:10, declares explicitly that insofar as nefalim are concerned "there is no mizvah to inter them." In support of that position he cites the narrative recorded in the Tosefta, Oholot 16:6, and cited by the Gemara, Pesaḥim 9a and Avodah Zarah 42a, regarding a maidservant who cast her nefel into a pit and a kohen who subsequently came to see whether it had reached a stage of gestational development that would make the regulations governing childbirth applicable to the mother and to determine the sex of the child for those purposes. Similarly Or Zaru 'a, Hilkhot Avelut, no. 422, rules that burial of an abortus does not constitute a mizvah.13See also R. David ibn Zimra, Teshuvot ha-Radbaz, I, no. 512.
An opposing view is adopted by Magen Avraham, Oraḥ Hayyim 526:20. Rebutting the argument formulated by Hagahot Maimuniyot, Magen Avraham asserts that placing a nefel in a "pit" as described by the Tosefta was, in fact, a form of burial. His principal argument in support of his own position is based upon a comment of Sifra, Leviticus 21:2, adducing an exegetical basis for prohibiting a kohen from defiling himself in conjunction with the burial of a child who is a nefel. The implication, argues Magen Avraham, is that a nefel requires burial. Moreover, argues Magen Avraham, it may be inferred from the comments of the Gemara, Niddah 57a, that it is forbidden to leave a nefel unburied overnight.14The grounds for this inference are far from unequivocal; see Teshuvot Noda bi-Yehudah, Mahadura Kamma, Oraḥ Ḥayyim, no.16. Cf., however, Maḥaẓit ha-Shekel in his comments on Magen Avraham, ad locum, and Binah le-‘Ittim, Hilkhot Yom Tov 1:23.
The comments of Magen Avraham serve as the focal point for subsequent discussions of this question in rabbinic literature. Some decisors cite his comments with approbation; others engage in concerted efforts to refute his arguments. R. Jonathan Eibeschutz, Binah le-'Ittim, Hilkhot Yom Tov 1:23, maintains that the ruling established by Sifra prohibiting a kohen to defile himself in conjunction with the burial of a nefel does not at all imply an obligation to inter a nefel. On the contrary, asserts R. Jonathan Eibeschutz, it is precisely because there is no obligation to inter either an abortus or a non-viable neonate that a kohen may not come into contact with a nefel. Thus, according to R. Jonathan Eibeschutz, this comment of Sifra serves to establish that a nefel does not require burial.15Binah le-’Ittim’s analysis of Sifrei is rejected by Teshuvot Zera Emet, II, no. 138 and Teshuvot Minḥat Elazar, I, no. 52. Both argue that, had the Torah wished to exclude nefalim from the miẓvah of interment, the exclusion would have been directly formulated in the context of that commandment rather than in this indirect and hence equivocal manner. R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 113, points out that, as recorded in Shulḥan Arukh, Yoreh De'ah 373:5, some authorities maintain that the kohen's obligation to defile himself through contact with the corpse of a close relative is not limited to defilement in the course of fulfilling his obligation with regard to the burial of the deceased. Hence, absent specific scriptural exclusion, he might well be obligated to defile himself by coming into contact with the nefel even if there is no obligation with regard to its interment. In rebuttal, R. Chaim Eleazar Shapiro, Teshuvot Minḥat Elazar, no. 52, argues that although, according to these authorities, the kohen's license to defile himself through contact with the corpse is not limited to the necessities of burial, it is nevertheless a function of his obligation to bury a deceased relative. Or, to express the point in somewhat different language, in situations in which an obligation to bury the deceased pertains, defilement is a mandatory requirement and, accordingly, the prohibition against defilement is suspended entirely; when no such obligation exists, the prohibition remains in force. Both Binyan Ẓion and R. Jonathan Eibeschutz also cite the Mishnah, Oholot 16:5, as reflecting the fact that permanent interment was not provided on behalf of nefalim.16R. Jacob Ettlinger’s view that there is no obligation to inter a nefel by virtue of the biblical commandment regarding burial of the dead is reiterated in Teshuvot Binyan Ẓion, no. 119.
Mishkenot Ya'akov, Oraḥ Hayyim 526:5, refutes Magen Avraham's argument in another manner. A newborn that dies within the first thirty days following parturition is regarded as a "doubtful" nefel, i.e., although death may ostensibly have been caused by illness or accident, the baby may actually have succumbed, or have been destined to succumb, because of a congenital or gestational defect. If the latter was indeed the case, the neonate was never a viable infant and hence would be categorized as a nefel. Nevertheless, burial is required in such instances of doubt because of the possibility that death resulted from post-parturitional causes. Accordingly, since burial is required, albeit for reason of doubt, it might be presumed that a father who is a kohen is also commanded to defile himself in conjunction with the burial of a neonate. Accordingly, an exegetical source is required to establish that a kohen may not defile himself in situations in which burial is mandated only by virtue of doubt. Hence, even though a known nefel does not require burial, explicit exclusion of a nefel from the requirement that a kohen must defile himself in the burial of close relatives must be understood as necessary only for application in situations in which it is not known with certainty that the deceased neonate is a nefel. R. Yehudah Asad, Teshuvot Yehudah Ya'aleh, no. 361, and R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Oraḥ Hayyim, no. 16, similarly rule that even those authorities who maintain that a nefel does not require burial17This is indeed Noda bi-Yehudah’s own view as expressed in Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De‘ah, no. 90; see, however, infra, sec. III. would concede that a child who has been carried to term but who dies within thirty days of birth requires burial by reason of its doubtful status.18The position of Ḥatam Sofer with regard to the burial of a child who dies within thirty days of birth is somewhat obscure. In Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 144, he appears to espouse the view that burial of such an infant is required as a matter of doubt. Elsewhere, Ḥatam Sofer al ha-Torah, She’elot u-Teshuvot, no. 3 (reprinted in Likkutei Teshuvot Ḥatam Sofer [London, 5725], no. 35), Ḥatam Sofer rules that burial of a child carried to term but who dies within thirty days of birth is required as a matter of biblical law, not because of doubt but as a matter of halakhic certainty. In that responsum, Ḥatam Sofer expresses the view that the fact that the majority of fully developed neonates are viable is sufficient to establish that the child in question is not regarded by Halakhah as a nefel even though it died in early infancy. Death of the fully developed neonate is to be attributed to causes other than lack of gestational development. Citing Tosafot, Ḥullin 12a, Ḥatam Sofer declares that all talmudic references to the fact that a child who dies within thirty days of birth is a “possible” or “doubtful” nefel reflect rabbinic stringencies and do not contradict the principle that, for purposes of biblical law, the child is regarded as viable. Since, for purposes of biblical law, the child is not regarded as a nefel, Ḥatam Sofer forbids exhumation of the body for any purpose, including removal of its foreskin. This is also the position espoused by the interlocutor cited in Teshuvot Binyan Ẓion, no. 113. Binyan Ẓion himself, however, appears to reject this view and to maintain that, as a matter of normative law as distinct from custom, even a child who dies within thirty days of birth does not require burial.19Teshuvot Noda bi-Yehudah, Yoreh De‘ah, Mahadura Kamma, no. 90, similarly makes the point that there is no requirement to bury a nefel because the consideration of “honor” is not applicable. Cf., however, Teshuvot Noda bi-Yehudah, Yoreh De‘ah, Mahadura Kamma, no. 164, which states with reference to a child that died within a week of birth that disinterment of the partially decomposed body is prohibited because of the prohibition concerning nivul ha-met since “the defilement also affects the living who see that man is destined to similar defilement.” In light of both that explanatory comment and Noda bi-Yehudah’s failure to require burial of a nefel in order to prevent nivul it may be argued that Noda bi-Yehudah prohibits only disinterment and viewing of a decomposing nefel but would not prohibit dissection of a nefel. Cf., however, R. Yitzchak Arieli, Torah she-be-‘al Peh, VI (5724), 50, who does not draw this distinction. Noda bi-Yehudah’s ruling regarding disinterment of a nefel is contradicted by Teshuvot Knesset Yeḥezkel, no. 44. See also Be’er Heitev, Yoreh De‘ah 263:3 and Pitḥei Teshuvah, Yoreh De‘ah 263:11.
Binyan Ẓion further cites a statement found in Tractate Semaḥot and subsequently quoted by Rosh, Mo 'ed Katan 3:88, and codified by Rambam, Hilkhot Avel 1:6–8, declaring that a nefel requires no attention whatsoever (ein mit'askin imo le-khol davar) as further evidence that a nefel does not require burial. However, Teshuvot Minḥat Elazar, 1, no. 42, cogently notes that, as a halakhic principle, the phrase "ein mit 'askin imo le-khol davar" does not encompass burial. Rambam, Hilkhot Avel 1:11, and Shulḥan Arukh, Yoreh De'ah 345:1, employ the identical phrase with regard to a suicide. Yet, Shakh, Yoreh De 'ah 345:1, citing early authorities, carefully notes that the reference is to rending garments and observance of the rites of mourning, but not to dressing the body in shrouds and interment in the ground which are required even in the case of a suicide. Similarly, concludes Minḥat Elazar, the phrase, as applied to a nefel, should be understood as excluding only the obligations to rend garments and to observe the rules of mourning. A careful reading of Shulḥan Arukh, Yoreh De'ah 343:8 and Shakh, Yoreh De'ah 343:6, indicates that those authorities are of this opinion as well.
Quite apart from textual citations demonstrating the absence of such a requirement, R. Jonathan Eibeschutz finds no cogent reason for requiring interment of a nefel. The Gemara, Sanhedrin 46b, posits two possible considerations for obligatory burial of a corpse: (1) burial in the ground serves to expiate the sins of the deceased (kapparah); (2) burial serves to obviate the shame and humiliation of the family which would be attendant upon decomposition of the unburied corpse (bizyona). Neither of these considerations, asserts R. Jonathan Eibeschutz, applies in the case of a nefel. Expiation of sin in the case of a minor child who has died, argues this authority, is in reality expiation of the sins of the parents. Such expiation is absent in the case of a nefel, argues R. Jonathan Eibeschutz, "since the heart of the father or mother is not at all pained, as is known," i.e., the emotional anguish suffered by parents upon the loss of a fetus or of a prematurely born child is not comparable to that suffered upon the loss of a child with whom a parental relationship has been established through a process of bonding. Nor, asserts R. Jonathan Eibeschutz, is a comparable sense of shame or humiliation attendant upon non-burial of a fetus.
R. Moses Sofer, Teshuvot Hatam Safer, Oraḥ Hayyim, no. 144, in endorsing the view that a nefel requires some form of burial, readily concedes that the purpose of interring a nefel cannot be expiation of sin but nevertheless asserts that burial is required for purposes of avoiding shame and humiliation. Hatam Sofer maintains, however, that the requirements attendant upon burial of a nefel are not identical in every respect with those of other interments. Burial for purposes of kapparah, asserts Hatam Sofer, must be underground; however, bizyona, he argues, may be avoided by casting the corpse into a pit. Accordingly, rules Hatam Sofer, unlike other obligations of burial, a nefel may simply be cast into the ground but need not be covered with earth. Hatam Sofer asserts that it is the latter form of interment that is described by the Mishnah, Oholot 16:5, and by the previously cited Tosefta in referring to utilization of a "pit" in association with the interment of nefalim.20Ḥatam Sofer explains that, in forbidding a kohen to come into contact with a child born as a nefel, Sifra establishes the principle that defilement by a father who is a kohen is limited to situations in which interment is mandated for purposes of kapparah. A further ramification of this thesis is reflected in Ḥatam Sofer’s ruling that a kohen may not defile himself through contact with a relative who has expressed a desire not to be buried and who has thereby renounced the kapparah attendant upon interment even though such a person must nevertheless be buried because of considerations of bizyona. Cf., Contemporary Halakhic Problems, I, 125-126.
R. Yekuti'el Yehudah Teitelbaum, Teshuvot Avnei Ẓedek, Yoreh De 'ah, no. 145, regards the dispute among his predecessors with regard to whether or not the obligation of burial extends to nefalim as entirely academic in nature. In its discussion of burial, the Gemara, Sanhedrin 46b, prior to establishing that interment of the dead constitutes a mizvah, depicts burial as required de minimis by virtue of custom. From ancient times until the present, it has certainly been the custom among Jews to bury nefalim. Since this is the established practice, concludes Avnei Ẓedek, failure to accord any particular nefel this dignity would redound to the humiliation of both the nefel and its family since it would be assumed that the corpse has been neglected because of some stigma associated with its birth. Avoidance of such humiliation is regarded by the Gemara as mandated at least by virtue of minhag or custom.
Interment of a nefel may, however, be required for reasons entirely extraneous to the mizvah of burying the dead. In another responsum, R. Jacob Ettlinger, Teshuvot Binyan Ẓion, no. 119, asserts that burial of a nefel is required, not by reason of the mizvah concerning interment of the deceased, but lest a kohen inadvertently become defiled by virtue of finding himself under the same roof as a nefel. The Mishnah, Shekalim 1:1 and Mo'ed Katan 2a, requires that a grave or burial site be clearly marked. Citing a number of scriptural sources, the Gemara, Mo'ed Katan 5a, indicates that this requirement is normative in nature and is predicated upon a need to prevent defilement of kohanim. Accordingly, concludes Binyan Ẓion, since a nefel causes such defilement, as is evident from the discussion of the Gemara, Hullin 89b, the corpse of a nefel must be buried in order to prevent inadvertent defilement of kohanim. Binyan Ẓion notes, however, that if this concern is indeed the sole consideration in requiring burial of a nefel, burial need not necessarily be carried out on the very day of the fetus' death. Similarly, interment in the ground would not necessarily be required. Simply depositing the nefel above ground in a site known to be off limits to kohanim, i.e., a cemetery or mausoleum, would be sufficient for this purpose.
Another consideration that may result in an obligation to inter a nefel arises from the fact that it is forbidden to derive any benefit from the human cadaver. As will be shown in the following section, if it is established that it is forbidden to derive benefit from a fetal cadaver, that prohibition would, in and of itself, serve as the basis of a requirement for the burial of a fetal cadaver. An obligation of burial is attendant upon all objects from which it is forbidden to derive benefit (with the exception of those objects which require burning, e.g., ḥamez on Pesaḥ). The requirement for burial is predicated upon a concern that, if not disposed of by burial, some benefit may unwittingly be derived from some such objects.
The minimum gestational age at which a fetus requires interment is not spelled out by any of these authorities. Within the first forty days of conception the nascent embryo is described by the Gemara, Yevamot 69b, as "mere water" and hence certainly does not require burial. R. Shalom Mordecai Schwadron, Teshuvot Maharsham, IV, no. 146, rules that a three-month fetus does not require burial but fails to state at what age burial is required.21Cf., however, R. Yekutiel Yehudah Grunwald, Kol Bo al Avelut, II, 66. R. Joseph Saul Nathanson, in a note included in his letter of approbation upon the publication of the Lemberg 5626 edition of the Sifrei, rules that a fetus that has reached a gestational age "of five or six months" requires burial provided that it is "complete in its limbs."22The comments of this authority are also cited in Ḥayyim u-Berakhah le-Mishmeret Shalom, ot kuf, sec. 13.
III. Issur Hana'ah
Although R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Kamma, Yoreh De'ah, no. 90, is among the authorities who maintain that the mizvah of interring the deceased does not apply to a nefel, he nevertheless agrees that burial is required for an entirely different reason. In a short and rather cryptic statement, Noda bi-Yehudah enunciates the position that the ambit of the prohibition against deriving benefit from a corpse extends to a fetal cadaver as well. Accordingly, Noda bi-Yehudah rules that burial is required in order to prevent possible infraction of that prohibition.23This is also the position of R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 141, s.v. ve-teda. The selfsame provision applies to all objects from which no benefit may be derived.24For a discussion of the sources and nature of that requirement see R. Chaim Chizkiyahu Medini, Sedei Ḥemed, Kelalim, Ma‘arekhet ha-Alef, sec. 306.
The prohibition against deriving benefit from a nefel is established by R. Jonathan Eibeschutz, Binah le-'Ittim, Hilkhot Yom Tov 1:23, in the course of his response to an extraordinary and sorrowful question that was addressed to him. A woman suffered a miscarriage that yielded a grotesquely deformed fetus. The family suffered dire poverty and is described as being "without bread." It occurred to the husband that if he were to travel among "the towns and villages" of the countryside he might display the fetus to the public in the hope that viewers would reward him with "one or two" copper coins. The interlocutor sought advice with regard to whether it would be permissible for him to support his family by means of what may aptly be categorized as something akin to the side-shows of itinerant circuses of a later age—but, in this case, by means of an exhibition involving the display of a fetal corpse. R. Jonathan Eibeschutz replied that quite apart from the fact that a fetal corpse requires burial, at least by virtue of custom, the proposed enterprise could not be sanctioned because it is forbidden to derive benefit from any human corpse, including the corpse of a fetus.
Approximately a century later, a related but quite different query was addressed to Binyan Ẓion. That incident involved the miscarriage of a normal, fully-developed fetus. A Jewish doctor wished to preserve the fetus in whiskey in a glass jar for the purpose of scientific study "as is the wont of physicians." Binyan Ẓion, no. 119, cites the earlier responsum of Noda bi-Yehudah in which the latter rules unequivocally that no benefit may be derived from a fetal cadaver.25Remarkably, Binyan Ẓion does not speak of examination of the fetal cadaver for purposes of deriving scientific information as constituting a form of prohibited benefit. Instead, he confines his discussion to the prohibition against retaining in one’s possession an object from which it is forbidden to derive benefit lest some benefit be derived unwittingly. In responsa examining the permissibility of postmortem examinations in general, both Ḥatam Sofer, Yoreh De‘ah, no. 336, and Maharam Shik, Yoreh De‘ah, no. 344, declare that acquiring medical information by means of such procedures constitutes a forbidden benefit. In support of that position Maharam Shik cites the ruling found in the Mishnah, Nedarim 48a, to the effect that a person who, by means of a vow, generates a prohibition against benefiting from a fellow townsman is forbidden to use scrolls or books that constitute property owned by the community. Quite apparently, the knowledge gleaned from such books is regarded as a “benefit” forbidden to such an individual. This argument is rebutted by R. Yitzchak Arieli, Torah she-be-‘al Peh, VI (5724), who argues, inter alia, that examination of a cadaver for scientific purposes constitutes an “unusual” form of benefit and hence is not forbidden under such circumstances. That position is based upon Teshuvot Radbaz, III, no. 548. A permissive view is also espoused by R. Chaim Sofer, Teshuvot Maḥaneh Ḥayyim, II, no. 60. The tenor of Binyan Ẓion’s discussion tends to support this permissive view; see R. Yehudah Leib Graubart, Ḥavalim be-Ne‘imim, III, no. 64. However, R. Akiva Eger, Gilyon ha-Shas, Avodah Zarah 12b, declares that even “unusual” forms of benefit may not be derived from a corpse since the prohibition is not couched as a prohibition against “eating.” That principle is codified by Rambam, Hilkhot Ma’akhalot Asurot 14:10, with regard to basar be-ḥalav and kila’ei ha-kerem. Conflicting views regarding the permissibility of deriving “unusual” forms of benefit from a corpse are recorded by R. Mordecai Winkler, Teshuvot Levushei Mordekhai, III, Oraḥ Ḥayyim, no. 29. See also infra, p. 228. Binyan Ẓion, however, questions that assertion. The prohibition against deriving benefit from a cadaver is formulated by the Gemara, Sanhedrin 47b, on the basis of a gezeirah shaveh, a hermeneutic principle applied to the occurrence of an identical term in different contexts. An identical term is used in describing the ritual of the eglah arufah, breaking the neck of a heifer in expiation of an unsolved homicide, as prescribed in Deuteronomy 21:4, and in the description of the burial of a human corpse, as recorded in Numbers 20:1, in conjunction with the burial of Miriam. The use of an identical term in both instances is understood by the Gemara as signaling the transposition of the already established prohibition against deriving benefit from the heifer to a prohibition against deriving benefit from a human corpse. Binyan Ẓion argues that, since the prohibition is derived from a description of interment, it is forbidden to derive benefit only from a corpse that must be buried in fulfillment of the mizvah of burying the dead. Indeed, Mishneh le-Melekh, Hilkhot Avel 14:21, cites Ramban in support of the position that it is permitted to derive benefit from a non-Jewish cadaver for precisely this reason, viz., the locus of the prohibition against deriving benefit indicates that it is a concomitant of the mizvah of burial. Since there is no biblical requirement commanding the interment of a non-Jewish corpse, reasons Mishneh le-Melekh, there is no prohibition against deriving benefit from such a corpse. Similarly, if the mizvah of burying the dead does not include burial of a nefel—as Binyan Ẓion indeed maintains—it then "perhaps" follows, argues Binyan Ẓion, that there is no prohibition against deriving benefit from the corpse of a nefel. Binyan Ẓion nevertheless refused to grant permission for the contemplated external embalming and preservation of the nefel because, as noted earlier, he maintained that burial of a nefel is mandated, not as a mizvah per se, but in order to prevent priestly defilement.
R. Moses Sofer, Teshuvot Hatam Sofer, Oraḥ Hayyim, no. 144, tentatively advances an argument identical to that formulated by Binyan Ẓion in refutation of R. Jonathan Eibeschutz' contention that there is a prohibition against deriving benefit from a fetal cadaver, but proceeds to refute that argument. Hatam Sofer contends that the derivation of the prohibition against benefiting from a corpse is not predicated upon the phrase describing the burial of Miriam but from the corresponding phrase describing her death. Accordingly, Hatam Sofer asserts that the prohibition against deriving benefit from a corpse is not at all contingent upon an obligation of burial.26Nevertheless, Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 336, citing Mishneh le-Melekh, Hilkhot Avel 14:21, espouses the view that no issur hana’ah is associated with a gentile cadaver. However, he makes no attempt to explain the rationale underlying this position. Cf., however, infra, and p. 186. Hence, maintains Hatam Sofer, it is forbidden to derive benefit from a nefel even though there is no commandment mandating its burial. Nevertheless, Hatam Sofer maintains that burial of a nefel is required, not in fulfillment of the commandment "for you shall surely bury him on that day" (Deuteronomy 21:23), but because all issurei hana'ah, i.e., objects from which benefit may not be derived, require burial lest some forbidden benefit inadvertently be derived therefrom. It is for this reason, opines Hatam Sofer, that the Samaritans accorded fetuses temporary burial in their homes as described by the Gemara, Niddah 56b.27See also R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 40, s.v. ve-teda, who declares in a somewhat cryptic statement that no benefit may be derived from a fetal cadaver. In a parenthetical comment he also declares that a nefel requires burial but fails to provide further elucidation of the nature of that obligation.
IV. Issur Hana'ah and Non-Jewish Cadavers
Certainly, if the prohibition against deriving benefit from a cadaver does not apply to the cadaver of a non-Jew, there can be no such prohibition with regard to the fetus of a non-Jewish mother.
Although there are brief references to this question in earlier sources, the first detailed attempt to analyze this issue and elucidate the views of various early authorities appears in Mishneh le-Melekh, Hilkhot Avel 14:21, as one of the issues considered in addressing the propriety of commercial traffic in mummies. The mummies are described as coming from locales which "no Jewish foot has traversed." The most significant source by far is adduced by Mishneh le-Melekh in a final comment and described as having come to his attention only subsequent to the completion of his lengthy exposition. That source is a succinct statement of the Palestinian Talmud, Shabbat 10:5. The Palestinian Talmud indicates that it is universally held that removal of issurei hana'ah, including a corpse, from a private to a public domain on the Sabbath constitutes a culpable offense because removal of the corpse is always an act necessary for its own sake (zerikhah le-gufah), i.e., in order to be rid of the object from which it is forbidden to derive benefit. The Palestinian Talmud then proceeds to indicate that removal of the corpse of a gentile is not ipso facto a culpable offense. The distinction, reasons Mishneh le-Melekh, lies in the fact that there exists no prohibition against deriving benefit from a non-Jewish cadaver. Since there is no prohibition against deriving benefit from the corpse of a gentile, the removal of a gentile corpse is not necessarily undertaken for a purpose intrinsic to such removal and hence is not a culpable offense in any and all circumstances.
The basis for the distinction between Jewish and non-Jewish cadavers is assumed by Mishneh le-Melekh to be the previously cited derivation of the issur hana'ah attendant upon a corpse. As noted earlier, that derivation is predicated upon the scriptural description of the death and burial of Miriam.28This thesis was earlier formulated by Ramban, Ketubot 60a, and Radbaz, Hilkhot Avel 14:21. Accordingly, concludes Mishneh le-Melekh, "it is possible" that the issur hana'ah is limited to corpses similar to that of Miriam, i.e., corpses of Jews only.29Cf., however, supra, note 26.
Although the source is not cited by Mishneh le-Melekh, further evidence that there is no prohibition attendant upon deriving benefit from a non-Jewish cadaver can be found in a narrative related by the Gemara, Bekhorot 45a. The students of R. Ishmael sought to confirm the number of "organs" found in the human body. In order to do so they boiled the body of a harlot who had been condemned to capital punishment by the civil authorities and counted two hundred and fifty-two "organs." Teshuvot Hatam Sofer, Yoreh De'ah, no. 336, notes the obvious problem presented in this narrative by the fact that, ostensibly, scientific information was acquired by utilization of a source from which benefit may not legitimately be derived.30See supra, note 25. Hatam Sofer resolves the problem by commenting that the subject of this experiment was undoubtedly a non-Jewess from whose corpse it is not forbidden to derive benefit.31Actually, Ḥatam Sofer seems to have had a talmudic text which read “maidservant” rather than “harlot.” He nevertheless states that the reference must be to an “Amalekite maidservant,” i.e., a gentile, or possibly to a woman having the status of a Canaanite slave. Assuming that there is no issur hana’ah associated with the corpse of a non-Jew, there remains some question with regard to whether this exclusion from that prohibition extends to Canaanite slaves as well; see Tosafot, Baba Kamma 10a, and Mishneh le-Melekh, loc. cit.
Mishneh le-Melekh readily concedes that his permissive view with regard to deriving benefit from gentile cadavers is not universally accepted. Although Rambam and Tur Shulḥan Arukh both record the prohibition attendant upon deriving benefit from a corpse, neither of these codifiers indicates in any way that the reference is limited to the corpse of a Jew.32See Radbaz, Hilkhot Avel 14:21. Even more explicit is the ruling of Shulḥan Arukh, Yoreh De'ah 349:1, declaring that no benefit may be derived from the shrouds of "either a gentile or a Jew."33As is well known, the author of the Shulḥan Arukh, R. Joseph Caro, was also the author of Kesef Mishneh, a classic commentary on Rambam’s Mishneh Torah. Curiously, this authority, in his Kesef Mishneh, Hilkhot Arakhin ve-Ḥaramin 5:17, seems to assume that no issur hana’ah is attendant upon the corpse of a non-Jew. Cf., however, Mishneh le-Melekh’s attempt at reinterpretation of the comments of Kesef Mishneh. It is clear that the prohibition is not limited to shrouds but that the identical restriction applies to the corpse itself.34Mishneh le-Melekh also cites the interpretation of King David’s demand, “Deliver my wife, Michal, whom I betrothed to me for a hundred foreskins of the Philistines” (II Samuel 3:14), recorded in the Gemara, Sanhedrin 19b. According to the Gemara’s analysis, Saul regarded the marriage to be a nullity ab initio because he deemed the foreskins delivered to the bride as consideration to be worthless. David, on the other hand, regarded them as objects of at least minimal value since they could be fed to dogs or cats. Since issurei hana’ah cannot be used as consideration for the purpose of contracting a marriage, the implication is that there was no transgression associated with any benefit that might have been derived from the foreskins of the Philistines. Mishneh le-Melekh notes, however, that it is possible that the foreskins were severed from the Philistines before they were put to death and hence no prohibition against deriving benefit would have been attendant upon them. Cf., R. Chaim Sofer, Teshuvot Maḥaneh Ḥayyim, Yoreh De‘ah, II, no. 60, who maintains that no issur hana’ah is attendant upon the corpses of prisoners captured in battle. Cf. also, R. Azriel Hildesheimer, Teshuvot R. Ezri’el, Even ha-Ezer, no. 30, who avers that no issur hana’ah is attendant upon the foreskin of a cadaver, but fails to set forth any substantive demonstration of that thesis. Similarly, Shitah Mekubezet, Ketubot 60a, cites a statement attributed to Re'ah indicating that "there is no difference between a gentile and a Jew" in this regard. On the other hand, Ramban, Ketubot 60a, advances an opposing view in remarking, "I know of no prohibition with regard to a non-Jew since we derive [the prohibition] from Miriam." Mishneh le-Melekh, however, notes that in other places Ramban's comments, if not expressly contradictory, are at least equivocal as are the comments of Teshuvot ha-Rashba, 1, nos. 364 and 365.35Elsewhere, in his commentary on Ketubot 60a, Rashba espouses the position of Tosafot. Cf., Bedek ha-Bayit, Yoreh De‘ah 349. Other authorities cited by Mishneh le-Melekh who espouse the view that it is not forbidden to derive benefit from the corpse of a non-Jew include Sefer Yere'im, no. 310, and Tosafot, Baba Kamma 10a.36For discussions of this question by latter-day authorities see Teshuvot ha-Radbaz, III, no. 979; Teshuvot Maharam Shik, Yoreh De‘ah, no. 349; R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41; R. Meir Shapiro, Teshuvot Or ha-Me’ir, no. 74; as well as sources cited by Pithei Teshuvah, Yoreh De‘ah 349:1 and Sedei Ḥemed, Kelalim, Ma‘arekhet ha-Mem, no. 103.
Pitḥei Teshuvah also cites Teshuvot Even Shoham, no. 30, who maintains that although the issur hana’ah pertaining to a Jewish corpse is biblical in nature, the prohibition regarding a non-Jewish corpse is of rabbinic origin; cf., Sedei Ḥemed, loc. cit., s.v. ve-katav. See also R. Jacob Emden, She’ilat Ya‘aveẓ, I, no. 41.
V. Rescue of Human Life
The cataloguing of violations and possible violations of Jewish law incurred in fetal tissue research would constitute little more than an academic excursus were it to be shown that the undertaking falls within the category of pikuaḥ nefesh, i.e., preservation of life.37See R. Isaac Liebes, Teshuvot Bet Avi, III, no. 132, who, without citing considerations of pikuaḥ nefesh, relies upon the position of Magen Avraham in permitting the autopsy of a nefel in the hope of discovering a means of enabling the mother to carry subsequent fetuses to term. Indeed, with the exception of the three cardinal sins, viz., idolatry, homicide and certain sexual offenses, all prohibitions are suspended for purposes of preserving life.
Nevertheless, it would appear that scientific research, even of a nature that might yield a life-saving therapy, is not encompassed within the category of life-saving activity for which suspension of halakhic restrictions is sanctioned. The source upon which such an assessment is predicated is the classic responsum of R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yoreh De'ah, no. 210, concerning the propriety of post-mortem pathological examinations. Noda bi-Yehudah states definitively that the suspension of a halakhic prohibition is sanctioned only for the benefit of an already endangered patient or, to use the phrase later coined by R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 336, a ḥoleh le-faneinu (lit: "a patient before us"). The concept of a ḥoleh le-faneinu is, roughly speaking, the halakhic analogue of the term "present" in the legal concept of a "clear and present danger." Prohibitions may, and indeed must, be ignored for purposes of rescuing an endangered life, but halakhic strictures are not suspended in anticipation of a hypothetical eventuality. Noda bi-Yehudah demonstrates the cogency of this position by means of a reductio ad absurdum. If halakhic restrictions may be suspended in anticipation of some vaguely possible future benefit to a person as yet not endangered, no prohibition would be meaningful. Compounding medications and manufacture of medical instruments on Shabbat could conceivably lead to the saving of lives in an unanticipated emergency. Moreover, cooking on the Sabbath, for example, would be justified on the grounds that perhaps some person might take sick and require cooked food. Children, in particular, are prone to various illnesses that are potentially life-threatening and hot water or cooked food might well be required in treating them. There is virtually no act which might not, in some presently unanticipated way, contribute to the preservation of life.38See also Ḥazon Ish, Koveẓ Iggerot, I, no. 207. In order to justify violation of a halakhic stricture there must be a discernible connection between the contemplated act and elimination of an existing danger. Accordingly, Noda bi-Yehudah rules that an autopsy may not be performed in the vague hope that some potentially life-saving knowledge may be gained serendipitously in the process of a post-mortem examination.
However, Noda bi-Yehudah carefully notes that were the surgeon to have under his care another patient awaiting surgery for the same condition that afflicted the deceased, and were the surgeon to require an autopsy in order to discern the proper site at which to incise the abdomen or in order to minimize the surgical trauma, the autopsy would be perfectly permissible. The condition which must be satisfied is the cogent anticipation of obtaining otherwise unknown and unobtainable information which, in turn, may lead to life-saving therapeutic treatment. Hence, it might appear that most forms of basic research fail to fall within those parameters since such research is not designed to cure any particular patient presently afflicted by disease. Such a conclusion, however, is not entirely accurate. Although the existence of a presently afflicted patient is an obvious instance in which suspension of halakhic strictures is warranted, it is by no means the only example. It is entirely possible that prophylactic measures involving violations of Jewish law may be necessary in times of epidemic in order to prevent the spread of contagious disease. In such situations, the individuals requiring protection are as yet entirely healthy. Yet, Hazon Ish had no difficulty in sanctioning such prophylactic measures even in instances in which the epidemic is, as yet, an immediate threat only in a neighboring town.39See Ḥazon Ish, Oholot, no. 22, sec. 32. The reasoning appears to be quite clear: Although there is no "patient before us" there is indeed a "danger before us" even though the danger is geographically removed.
A further amplification of this principle is reflected in the ruling of the late Chief Rabbi of Israel, Rabbi Iser Yehudah Unterman, regarding organ banks in time of war40See Torah she-be-‘al Peh, XI (5729), 14, reprinted in No‘am, XIII (5730), 4. and in his ruling regarding preparation and transport of ammunition in time of danger.41See Ha-Torah ve-ha-Medinah, V, 29. Cf., also, idem, Shevet me-Yehudah (Jerusalem, 5715), p. 49. See also No‘am, V (5722), 283, for R. Benjamin Rabinowitz-Teumim’s analysis of R. Israel Salanter’s well-known ruling directing the entire population of Vilna to refrain from fasting on Yom Kippur during the 5621 cholera epidemic in that city. Cf., however, R. Moshe Sternbuch, Mo‘adim u-Zemanim, II, no. 140, and supra, p. 142, note 32. Indeed the selfsame principle is involved in setting up military field hospitals on the Sabbath. Army units preparing for battle customarily take with them material and equipment to be used in setting up field hospitals. The Chief Rabbinate was asked whether such preparations may be carried out, despite the halakhic infractions involved, in light of the fact that at the time at which those actions are undertaken no casualties have yet occurred and, indeed, no shot has as yet been fired. The Chief Rabbinate had no qualms in sanctioning such procedures. The reasoning is self-evident: Military conflicts inevitably yield casualties. Although there is no "patient before us" and despite the fact that, prior to commencement of hostilities, there is not even a "danger before us," the very determination to engage in battle constitutes a clearly identifiable "cause of danger" which is present here and now.
Another extension of this principle is found in responsa discussing provisions required for meeting public health needs on Shabbat. In many outlying settlements in Israel there is but a single qualified health-care provider in residence, usually a nurse. Not infrequently, an emergency occurs on Shabbat and, in order to monitor the patient's condition and administer interim medical care, the nurse must accompany the patient in the vehicle transporting the patient to the nearest hospital. During her absence there is no trained professional qualified to provide emergency care should any other inhabitant become afflicted by illness or suffer an accident. May the nurse ignore Shabbat prohibitions in order to return to her post? At first glance, the situation would seem analogous to Noda bi-Yehudah's hypothetical situation involving, for example, a mother's concern that her child might become ill. Nevertheless, a number of rabbinic authorities distinguish between these differing situations on the basis of statistical probabilities. The likelihood that a child in any specific family will become afflicted with a life-threatening illness on any given Shabbat is extremely remote. Hence the mother's preparation for that eventuality cannot be categorized as an act of pikuaḥ nefesh. However, when past experience points to a significant likelihood that one person in a large population of individuals will be stricken in such a manner, a number of rabbinic decisors have ruled that the statistical probability of the occurrence of such an event is sufficient to warrant the nurse's return to her post. In effect, present awareness of the statistical probability of impending danger renders the danger itself present in nature.42See R. Yisra’el Aryeh Zalmanowitz, No‘am, IV (5721), 175–178; and R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, I (Jerusalem, 5139) 40:71. See also ibid., 40:67 and 40:69. Cf., R. Isaac Liebes, Halakhah u-Refu’ah, III (5743), 73, reprinted in idem, Teshuvot Bet Avi, IV, Oraḥ Ḥayyim, no. 16.
Application of these criteria to at least some forms of fetal tissue research yields a similar conclusion. Actuarial figures demonstrate beyond cavil that longevity anticipation of diabetics is significantly diminished. There is significant medical evidence indicating that the same is true of patients afflicted by Parkinson's disease.43See Fletcher McDowell and Jesse Cederbaum, “The Extrapyramidal System and Disorders of Movement,” Baker’s Clinical Neurology, ed. Robert Joynt (Philadelphia, 1988), p. 32; and J. Kurtzke, Neurology, vol. 38, no. 10 (October, 1988), pp. 1558–61. Accordingly, the eradication of those maladies must be regarded as a matter of pikuaḥ nefesh. If, as is probably the case, the benefits of fetal tissue research will be realized within a time-span that would provide treatment for patients already afflicted with these conditions, the requirement of ḥoleh le-faneinu, even in its literal sense, would be satisfied. Even if this is not the case, the statistical certainty of presently healthy persons succumbing to the complications of those diseases would serve to warrant suspension of possibly applicable strictures of Jewish law in order to perfect a cure.
One caveat is, however, in order. Just as antibiotics may not be manufactured on Shabbat on the nebulous claim that they may be required for some unanticipated emergency that might occur on that day, so also proscribed acts having no direct bearing upon the cure or welfare of an already ill person may not be performed in the vague hope that, serendipitously, some benefit may result. The issue requiring further analysis is the delineation of precise criteria to be employed in distinguishing between procedures that may be instituted even in face of halakhic strictures in order to preserve life and procedures that may not be instituted even under such circumstances. Particular experimental procedures involving infractions of Halakhah may then either be sanctioned, or not be sanctioned, depending upon whether actual demonstrated efficacy is required in order to sanction such procedures or whether a cogent scientific basis for assuming that the protocol may lead to therapeutic success is itself sufficient for this purpose.
Analysis of this question requires a detailed examination of the Mishnah, Yoma 83a, which discusses a remedy used in antiquity in the treatment of rabies and of the talmudic commentaries thereupon. Resolution of this significant question is important not only for purposes of determining the propriety of fetal tissue research but also for determining the propriety of undertaking other experimental procedures in violation of Shabbat restrictions and the like. It is also crucial in determining whether a patient is under obligation to seek a particular therapy. This issue, which is essentially extraneous to the present endeavor and has ramifications far beyond the issue at hand, merits independent examination and will be addressed in the following chapter.
VI. Abortion For Preservation of Human Life
The foregoing notwithstanding, not every prohibition may be ignored for purposes of preserving life. Some time ago, the media presented a sensationalized report of a woman who sought to conceive a child in contemplation of undergoing an abortion in order to harvest neural tissue for the purpose of a transplant in an effort to cure her father of Parkinson's disease. Destruction of a fetus for the purpose of saving the life of the mother has received a great deal of attention in rabbinic literature.44For a survey of this literature see Contemporary Halakhic Problems, I, 347–354. The Mishnah, Oholot 7:6, declares that when "hard travail" of labor endangers the life of the mother an embryotomy may be performed in order to save her life. So long as the head of the child or a major portion of its body has not emerged from the uterus, the life of the unborn fetus may be sacrificed in order to preserve that of the mother. However, in codifying the principle enunciated in the Mishnah, Rambam, Hilkhot Rozeaḥ 1:9, is not content to state simply that the life of the fetus is subordinate to that of the mother but adds a further explanation. He describes the child as being, in effect, an aggressor engaged in "pursuing" the life of the mother. Rambam's incorporation of this rationale in his Mishneh Torah has given rise to considerable discussion and analysis and is the primary source for the view of numerous authorities who maintain that Jewish law forbids even therapeutic abortion in non-life-threatening situations. By invoking the "law of pursuit" Rambam indicates that the life of the fetus is forfeit only because it is, in some sense, an aggressor. When the fetus is not the proximate cause of the threat to the life of the mother, this rationale does not apply. Similarly, the law of pursuit can be invoked to eliminate the "pursuer" only when failure to intervene will render loss of the victim's life a virtual certainty.45See Rashi, Sanhedrin 72a, s.v. hakhi garsinan, and Rashi, Pesaḥim 2b, s.v. hakhi ka-amar; Teshuvot Koaḥ Shor, no. 20; and Iggerot Mosheh, Ḥoshen Mishpat, II, no. 69, sec. 2, s.v. ve-la-khen. Cf., Teshuvot Aḥi‘ezer, I, no. 23, sec. 2. See also Tiferet Yisra’el, Oholot, Bo‘az 7:10. Cf., however, Bi’ur ha-Gra, Ḥoshen Mishpat 388:74 and this writer’s article in Or ha-Mizraḥ, Nisan-Tammuz, 5747, pp. 260–261. Rambam's comment serves to establish that feticide is a form of homicide, albeit a form of homicide that does not entail capital punishment. Rambam's position is the source which led the Chief Rabbinate of Israel, in the course of public debate of abortion legislation, to declare the performance of an abortion to be an act of murder.46JTA Daily News Bulletin, December 7, 1974. This is also the position of many other contemporary rabbinic authorities, including the late Rabbi Moses Feinstein, Iggerot Mosheh, Ḥoshen Mishpat, nos. 69 and 71. There are, to be sure, authorities who regard the halakhic strictures against feticide as based upon other prohibitions; according to those authorities, an abortion may be performed in order to preserve the life of the mother in all instances of pikuaḥ nefesh, even in situations in which the fetus is not a "pursuer."47See Contemporary Halakhic Problems, I, 347–354. Indeed, some authorities permit therapeutic abortion for considerations of maternal health as distinct from maternal life.48See Contemporary Halakhic Problems, I, 354–356.
However, this is the case only with regard to Jewish law as it applies to Jews. Judaism also posits a series of obligations binding upon non-Jews, viz., the "Seven Commandments of the Sons of Noah," sometimes known as the Noahide Code. Feticide is an even more serious offense in the Noahide Code than it is in Jewish law as applied to Jews. The prohibition against feticide as applied to non-Jews is derived from Genesis 9:6 which in talmudic exegesis is rendered as "He who sheds the life of a man within a man, his blood shall be shed." "Who is 'a man within a man?"' queries the Gemara, Sanhedrin 57b. The immediately ensuing response, "This is a fetus within its mother's innards," serves to establish, not only that feticide is forbidden to non-Jews, but that it constitutes a capital crime in the Noahide Code.
Thus, it would appear that, in the Noahide Code, no distinction is made between the status of a fetus and that of a neonate. An apparent ramification of ascription of an identical halakhic status to both a fetus and an infant is a significant disparity between Jewish law and Noahide law with regard to measures to be taken when pregnancy or parturition would entail loss of the mother's life. As has been shown, in Jewish law, the fetus is regarded as "a pursuer" whose life is subordinate to that of the mother. However, the previously cited Mishnah, Oholot 7:6, concludes with the statement that once the forehead or the major portion of the body has entered the birth canal "one does not set aside one life for another." Once the child is regarded as having been born, the two lives are regarded as equal and one can not be sacrificed in order to preserve the other. The implication is that, prior to birth, the fetus is not a "life" (nefesh) in the full sense of that term and hence is subordinate to the life of the mother in status and value. The fact that Jewish law does not impose the death penalty for the crime of feticide serves to underscore that the fetus is not a "nefesh" in the full legal sense of the term. However, under Noahide law, feticide is a capital offense. Hence, it would seem that, for a non-Jew, the fetus is indeed a "nefesh." If so, insofar as Noahides are concerned, the fetus, even in its gestational state, is as much the moral and legal equal of the mother as is the child whose head has emerged in the birth canal. Accordingly, it should follow that a non-Jew may not terminate a pregnancy even in situations in which failure to do so would inevitably result in maternal death.49For a discussion of the principles governing situations in which failure to intervene will result in the loss of both mother and child see Contemporary Halakhic Problems, I, 356–361. Despite the weight of this argument, Tosafot, Sanhedrin 59a, without formulating the grounds for their reservation, express doubt with regard to whether the Noahide prohibition against feticide applies in situations in which failure to terminate pregnancy will result in the loss of the life of the mother.50Although Tosafot fail to elucidate the nature of the doubt expressed, two sides of the question may be formulated on the basis of a number of different theses: The normative rule is cogently formulated by R. Isaac Schorr, Teshuvot Koaḥ Shor, no. 20, p. 32, who concludes that, at best, the matter remains in doubt and hence active intervention to extinguish the life of the fetus cannot be sanctioned. Since human life may be sacrificed only when there is firm and unequivocal authority for doing so, Koaḥ Shor rules that the life of a fetus must remain inviolate.51See also Contemporary Halakhic Problems, I, 369. Cf., R. Aryeh Leib Grossnass, Ha-Pardes, Shevat 5732, and idem, Lev Aryeh, II, no. 32, who suggests that the “doubt” expressed by Tosafot is limited to the destruction of the fetus of a Jewish mother in order to save her life, but does not extend to the abortion of a non-Jewish fetus. This view is not supported by convincing argument or by earlier sources.
Thus, insofar as application of the relevant halakhic principles is concerned, a non-Jew could not be permitted to perform an abortion even for the purpose of saving another life. Utilization of fetal tissue for purposes of preserving life in no way exculpates the abortion performed as a means of acquiring the tissue.
VII. Benefiting From Unethical Research
Nevertheless, regardless of the unethical nature of the abortion itself, once it has been performed there need be no compunction with regard to utilization of the abortus in a manner otherwise consistent with applicable provisions of Jewish law. It is readily conceded by all that organs derived from a homicide may be used for any purpose for which organs obtained from the corpse of a person who has died of natural causes may be used and that such use in no way entails complicity in the act of homicide.52Cf., James Bopp and James T. Burtchaell, “Statement of Dissent,” p. 68, note 99. Mutatis mutandis, the same conclusion must be drawn with regard to use of fetal tissue obtained by means of an abortion. Although performance of an abortion is a grievous offense, Jewish law does not posit a "Miranda principle" or an exclusionary rule that would, post factum, preclude use of illicitly procured tissue for an otherwise sanctioned purpose.53See this writer’s article in Or ha-Mizraḥ, Nisan-Tammuz 5748, pp. 297f. It has been argued that research upon fetal tissue derived from an induced abortion implies moral acquiescence or complicity with the antecedent abortion.54See James Bopp and James T. Burtchaell, “Statement of Dissent,” pp. 63ff. Similar moral concern has been raised with regard to application of research data derived from the barbarous activities of Nazi physicians during World War II.55See infra, chap. 10. A number of scientists and staff members of the Environmental Protection Agency vociferously protested a research program based upon the findings of German experiments with phosgene gas on prisoners of war. The German experiments involved exposure of fifty-two prisoners to the gas in order to test a possible antidote and led to the death of four prisoners.56New York Times, March 23, 1988, p. A1. As a result, the chief of the Environmental Protection Agency barred inclusion in his agency's report of any data acquired from the German research. The moral misgivings expressed by these researchers were that "to use such data debases us all as a society, gives such experiments legitimacy, and implicitly encourages others, perhaps in less exacting societies, to perform unethical human 'experiments.'"57Ibid., p. A17. See also BioLaw, Updates and Special Sections, vol. 2, no. 13 (April, 1988), p. U:873. Shortly thereafter, Dr. Robert Pozos, the director of the hypothermia research laboratory of the University of Minnesota announced his intention to republish, along with his own analysis, a Nazi study in which concentration camp inmates were subjected to extreme cold in order to show that study's possible application to his own research on ways to save persons swept into icy seas.58New York Times, May 12, 1988, p. A9. Reaction to this announcement was swift. Dr. Daniel Callahan, director of the Hastings Institute, emphatically declared, "We should under no circumstances use the information. It was gained in an immoral way." Abraham H. Foxman, national director of the Anti-Defamation League of B'nai B'rith, concurred in stating, "I think it goes to legitimizing the evil done. I think the findings are tainted by horror and misery."59Loc. cit. This issue was the subject of a conference sponsored by the Center for Biomedical Ethics of the University of Minnesota in May, 1989.60See New York Times, May 21, 1989, p. A34 and JTA Community News Reporter, May 26, 1989.
As will be explained at length in chapter ten of this volume, there is, however, no principle of Jewish law or ethics that would preclude use of information gleaned as a result of unethical research.61Articles authored by R. Abraham Meir Israel of Vienna and R. Tibor Stem of Miami Beach prohibiting medical use of the fruits of Nazi research appear in the Tishri 5750 issue of Ha-Pardes. Those contributions, while emotionally heart-rending, are nevertheless halakhically irrelevant. The arguments presented are as follows:
Applied to the question at hand these arguments constitute a non-sequitur. Questions concerning the reliability and medical value of studies performed in concentration camps are clearly a matter for scientific determination and entirely outside the purview of rabbinic scholars. There is certainly no halakhic or theological reason why such research could not have yielded scientifically valid data. Whether in actuality this was or was not the case is a matter for scientists to determine.
The prohibition against deriving benefit from a cadaver or from an object used to accomplish an act of homicide is suspended in cases of pikuaḥ nefesh. More significantly, the arguments fail to distinguish between use of the cadaver itself or of the actual murder weapon for therapeutic purposes and use of mere information gleaned either before or after death. Even those authorities who forbid visual examination of a corpse for purposes of scientific study as constituting a forbidden form of benefit recognize that such information, once obtained, may be used for beneficial purposes since it is the derivation of knowledge from the corpse that constitutes a forbidden benefit not its subsequent application.
Most egregious is the citation of the prohibition against homicide even in a therapeutic context. The sources cited serve only to support the proposition that the three cardinal transgressions may not be breached even for purposes of saving a life. Those sources most certainly do not establish a prohibition post factum against utilizing even tissue or organs of a homicide victim for purposes of preserving a life. By the same token, the absence of an exclusionary principle means that there is no moral barrier preventing the research scientist or the manufacturer of pharmaceutical products from utilizing fetal tissue procured by means of induced abortion for purposes that are otherwise moral, provided that such utilization of fetal tissue does not involve collusion in, or encouragement of, the abortion itself.
VIII. Federal Funding
However, it cannot be gainsaid that, in point of fact, fetal tissue research programs require procurement of significant numbers of fetuses that are the product of non-therapeutic abortions. Federal sponsorship of fetal tissue research involving fetuses obtained in this manner adds an entirely new dimension with regard to the question of the propriety of such research.
Generation of the potential for preservation of life through the intermediacy of abortion must perforce diminish the odium associated with that procedure. As an instrument for good, the act of abortion will not be perceived as an unmitigated evil. A tom, tormented and guilt-ridden young woman struggling with the moral dilemma associated with a resolution of the question of whether "to abort or not to abort" will now have forced upon her one additional consideration to be added to the potpourri of social, economic and moral forces pushing and tugging in opposite directions. Moreover, involvement of prestigious institutions and respected members of the scientific community coupled with implied governmental approval, as evidenced by the NIH funding of research in which utilization of the aborted fetus is crucial, combine to endow the abortion procedure with an aura of moral acceptability. Surely, in at least some instances, those factors will tip the decision-maker's scales against preservation of the fetus.62It is certainly not uncommon for women generally disposed against abortion to decide to terminate an unwanted pregnancy. Such women are reported to experience a significant degree of cognitive dissonance. See Michael B. Bracken, Lorraine V. Klerman and Mary Ann Bracken, “Abortion, Adoption, or Motherhood: An Empirical Study of Decision-Making During Pregnancy,” American Journal of Obstetrics and Gynecology, vol. 130, no. 3 (February, 1978), pp. 256–257; and Michael B. Bracken, “The Stability of the Decision to Seek Induced Abortion,” Research on the Fetus, HEW Publication No. (OS) 76–128, p. 16–15. Thus it is not surprising that conflict during decision-making is reported as being quite prevalent. Ibid., p. 16–16. The percentage of women who undergo at least one change of decision with regard to abortion is reported to be approximately one third. Ibid., pp. 16–2 and 16–16. Given the vacillation which is known to exist, any relevant factor may become decisive in the decision-making procedure. Although, in the absence of statistical data, it is impossible to predict the percentage of women to whom beneficial aspects of participation in fetal tissue transplantation projects may become the factor in the absence of which a final determination to abort would not occur, it is certain that for at least some women this will be the case.
It must be emphasized that these objections would not necessarily obtain in a situation involving organ tissue obtained from a homicide victim. Homicide is recognized by all, and commonly by the perpetrator himself, as a heinous offense and as a crime against society. From the societal perspective, homicide is aberrant behavior. Homicide is a crime and the murderer, if apprehended, will be prosecuted to the fullest extent of the law. Utilization of the body of the victim for scientific purposes could not conceivably be construed as an endorsement of the antecedent homicide. Nor could such utilization, or the contemplation of such utilization, possibly lead to an increase in the incidence of homicide. Abortion, on the other hand, is regarded in some sectors of our society as innocuous and condoned as a morally neutral act. Establishment of a government program involving procurement of abortuses will assuredly be construed as a governmental seal of moral approval. Such approval could not reasonably be imputed to aberrant, socially condemned acts of homicide. Moreover, the sheer number of abortions required to sustain such research programs serves to magnify the immoral nature of the offense. We are confronted, not by isolated, individual acts of immorality in which the product of the act can be isolated from the act itself, but with programs and policies predicated upon the assumption that abortions are performed as a matter of course and are performed in inordinately large numbers.
Recognition that governmental funding will inevitably result in an increase in the number of abortions performed gives rise to a significant issue with regard to the legitimacy of such sponsorship. The question is directly analogous to that of whether a person may rescue a life knowing full well that the life of a fellow human being will be extinguished through the resultant act of another malevolent individual. Questions of that nature have been addressed in halakhic literature over a period of centuries and, most recently, were the subject of a number of responsa authored during the period of the Holocaust Numerous sources indicate that, although a person may seek to avoid potential danger even if, as a result, the selfsame danger will befall another individual, nevertheless, once the danger is actually experienced he may not seek to escape from it if, as a result, another person will be even indirectly endangered.63See Teshuvot Maharibal, II, no. 40; Shakh, Ḥoshen Mishpat 163:18; Teshuvot Noda bi-Yehudah, Mahadura Tinyana, Yoreh De‘ah, no. 74; and R. Zevi Hirsch Meisels, Teshuvot Mekadshei ha-Shem, I (Chicago, 5715), Sha‘ar Maḥmadim, sec. 1.
The question with regard to federal funding of fetal research is further complicated by virtue of the moral responsibility devolving upon Noahides to prevent acts of feticide. In defining the commandment of "dinin, " the last of the Seven Commandments of the Noahide Code, Rambam, Hilkhot Melakhim 9:14, states that the essence of the commandment is to establish courts for the purpose of punishing those who transgress the first six of the seven commandments "and to admonish the populace." Admonition, exhortation and prior restraint are intrinsic to fulfillment of this commandment Since Noahides are not normatively bound to engage in acts of rescue by virtue of the commandment "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16) the principle of pikuaḥ nefesh does not function as a countervailing consideration. Thus it follows that any action or policy that would lead to an increment in the number of abortions performed is antithetical to the obligation to "admonish the populace" which, according to Rambam, is normatively binding upon all non-Jews.
1. The question may hinge on the nature of the prohibition against feticide as formulated in the Noahide Code. If, in extending the death penalty to the killing of the fetus in the Noahide Code, the Torah intends to indicate that insofar as Noahides are concerned fetal life is to be considered on a par with other human life, then it follows that a Noahide may not sacrifice a fetal life in order to rescue the mother. The law of pursuit cannot be invoked if, under the Noahide Code, the fetus is considered to be a "nefesh" just as the law of pursuit does not apply in Jewish law after the emergence of the fetal head in the birth canal at which juncture the fetus is deemed a "nefesh" according to the Sinaitic code. On the other hand, the Torah may not deem the fetus to be a "nefesh" even with regard to Noahides, but nevertheless have ordained feticide as a capital crime under the Noahide Code as a transgression totally unrelated to the concept of taking human life. If the Noahide prohibition is extraneous to the exhortation against homicide, it follows that the life of the mother would take precedence over that of the fetus. Since feticide is not encompassed within the prohibition against homicide, the prohibition against feticide, no less than other prohibitions, may be set aside in order to preserve human life.
2. Homicide constitutes one of the exceptions to the general rule that prohibitions of law are suspended for purposes of preserving human life. The rationale is expressed by the Gemara, Sanhedrin 74a, as reflecting the principle "Why do you deem your blood to be sweeter than the blood of your fellow?" Although feticide is a capital offense in the Noahide Code, it remains the case that it is a lesser offense under the Sinaitic covenant. Since, under Jewish law as applied to Jews, feticide is not a capital crime, it may be deduced that fetal life is intrinsically not equal in worth to maternal life. On the contrary, the life of the mother is "sweeter" than the life of the fetus, as is manifest in the comparable provisions of the Sinaitic Code. If so, the life of the fetus may be sacrificed in order to preserve the life of the mother even though it is regarded as a nefesh in the Noahide Code.
3. Assuming that, even in the Noahide Code, the taking of a fetal life is not entirely comparable to murder, it is clear that a Noahide would be permitted to commit this infraction in order to save his own life. The Gemara, Sanhedrin 74b, states that a Noahide may commit any transgression, including idolatry, at least in private, in order to save his own life. Nevertheless, Minḥat Hinnukh, no. 296, asserts that a Noahide may not transgress any provision of the Noahide Code in order to preserve the life of his fellow since he is not bound by the biblical commandment "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). Teshuvot Koaḥ Shor, no. 20, p. 33a, espouses an opposing view and asserts that a Noahide may transgress any commandment, including the three cardinal sins, in order to save the life of his fellow. The doubt expressed by Tosafot may reflect these two opposing views.
4. Minḥat Hinnukh, no. 296, opines that the license granted a Noahide to transgress prohibitions of the Noahide Code in order to preserve his own life, as indicated by the Gemara, Sanhedrin 74b, is limited to situations in which the Noahide is presented with a choice between transgression and martyrdom but does not include situations in which there exists no force majeure, e.g., situations involving life-threatening illness. A similar distinction is made by Rambam, Hilkhot Yesodei ha-Torah 5:4 and 5:6, with regard to transgression of the three cardinal sins. A person is required to sacrifice his life rather than transgress one of those commandments regardless of whether the threat to his life is in the form of force majeure or illness. Nevertheless, in instances in which the individual has acted incorrectly and has transgressed in order to save his life, Rambam draws a distinction post factum between force majeure and therapeutic violation. Rambam rules that, although his action is not sanctionable, the individual in question is not subject to capital punishment if his act was compelled by force majeure. However, if the individual transgressed in order to save his life in the absence of external coercive force he is fully culpable and is to be punished in accordance with his act.
5. Assuming that, under the Noahide Code, a fetus is not a nefesh, and assuming that in the Noahide Code the prohibition against feticide is not suspended for the purpose of saving human life, the issue of whether the taking of a fetal life is warranted when the fetus is an aggressor remains an open question. Teshuvot Ben Yehudah, no. 21, and Sedei Hemed, Kelalim, Ma'arekhet ha-Gimel, no. 44, maintain that the law of pursuit is not operative in the Noahide Code. However, Minḥat Hinnukh, no. 296, and Teshuvot Koaḥ Shor, no. 20, p. 32b, maintain that the law of pursuit extends to Noahides as well. This position seems to be reflected in the language of Rambam, Hilkhot Melakhim 9:4. See also R. Chaim Soloveichik, Hiddushei Rabbeinu Hayyim ha-Levi al ha-Rambam, Hilkhot Rozeaḥ 1:9. See also Teshuvot Bet Yizḥak, Yoreh De'ah, II, no. 162, sec. 4; and R. Meir Dan Plocki, Hemdat Yisra'el (New York, 5725), p. 178. These conflicting views may be reflected in the doubt expressed by Tosafot, i.e., Tosafot may subscribe to a view identical to that of Rambam, viz., that the fetus may be sacrificed in order to save the live of the mother only by operation of the law of pursuit, but be in doubt with regard to whether the law of pursuit is incorporated in the Noahide Code.
6. Koaḥ Shor notes that the Gemara, Sanhedrin 74b, states that a Noahide may commit any transgression including idolatry in order to preserve his own life and contends that the extension of this provision to encompass homicide as well is the subject of the doubt expressed by Tosafot. R. Samuel Yaffe-Ashkenazi, Yefeh To'ar (Furth, 5452), Bereishit 44:5, argues that this dispensation extends to murder as well. However, Mishneh le-Melekh, Hilkhot Melakhim 10:2, states explicitly that the taking of another's life in order to save one's own is forbidden even to Noahides since with regard to homicide this injunction is not derived from the commandment to "sanctify the Name" but is based upon the a priori principle, "Why do you deem your blood to be sweeter than that of your fellow?" See also R. Meir Simchah ha-Kohen of Dvinsk, Or Sameaḥ, Hilkhot Yesodei ha-Torah 5:6. See also Pitḥei Teshuvah, Yoreh De'ah 155:4, who discusses the question of whether or not the principle "and you shall live by them" applies to Noahides. See also Minḥat Hinnukh, no. 286 and Parashat Derakhim, Derush 2. The grandson of the author of Koaḥ Shor raises this point in a note appended to this responsum, p. 35a, but fails to cite Mishneh le-Melekh.
1. The experiments conducted by the Nazis were diabolical in nature and were not undertaken for purposes of scientific investigation. As a result they yielded no reliable information.
2. It is forbidden to derive benefit from a cadaver.
3. Halakhah, as recorded in Rambam, Hilkhot Yesodei ha-Torah 5:6, prohibits therapeutic measures involving idol worship, certain forms of sexual licentiousness and homicide.
4. The Gemara, Sanhedrin 45b, declares that a stone, gallows, sword or other object used for purposes of execution must be buried. Accordingly, Sefer Hasidim, no. 1,113, rules that no benefit may be derived from a sword found with slain Jews and that it must be interred. On the basis of the above-cited talmudic statement, She'ilat Ya'avez, II, no. 158, ruled that it is forbidden to fashion a slaughterer's knife from an executioner's sword. Similarly, R. Meshullem Roth, Kol Mevaser, I, no. 58, forbade a ḥazan to fashion a gartel (belt worn during prayer) from a noose preserved on Mount Zion as a relic of the Holocaust.
5. R. Judah he-Hasid, in his ethical will, addenda, sec. 6, reiterates the prohibition against deriving benefit from an object used to commit murder and adds that such use entails a grave danger to the user and to his entire household.