One may heal with all things except with the wood of a tree devoted to idolatry.
Of late much attention has been focused upon use of scientific data compiled by German scientists during the Holocaust That information was obtained as the result of cruel and inhumane, not to speak of immoral, experiments conducted upon inmates of concentration camps and prisoners of war. Controversy first erupted some time ago when the Environmental Protection Agency engaged in an attempt to perfect an antidote to phosgene, a poison gas. During World War II the Nazis engaged in a similar endeavor in the course of which they conducted experiments upon prisoners of war. A number of those prisoners died from the effects of the poisonous gas. Some staff scientists of the EPA were adamantly opposed to making use of the information gleaned by the Germans as a result of those experiments and, ultimately, material associated with the Nazi undertaking was excluded from the report prepared by the agency. Subsequently, and perhaps more significantly, the Hypothermia Research Laboratory of the University of Minnesota investigated procedures utilized in the rescue of persons accidentally swept into icy water. Among the most brutal of Nazi crimes were experiments involving hypothermia in humans performed at the Dachau concentration camp. Ostensibly, those studies were designed to establish the most effective treatment for victims of immersion hypothermia, particularly German airmen shot down over the cold waters of the North Sea. Some three hundred persons, mostly Jews, were placed in near-freezing water for varied periods of time and then warmed by different techniques. Approximately one third of the victims died.1Robert L. Berger, “Nazi Science—The Dachau Hypothermia Experiments,” New England Journal of Medicine, May 17, 1990, pp. 1435–1440, reports that the experiments were conducted on 280 to 300 victims (p. 1436) and that at least 80 to 90 victims died (p. 1437). A detailed evaluation of the hypothermia experiments was presented by Leo Alexander, “The Treatment of Shock from Prolonged Exposure to Cold, Especially in Water,” Combined Intelligence Objectives Sub-committee, Item No. 24, File No. XXVI–37, Office of the Publication Board, Department of Commerce, Washington, D.C., Report No. 250, July, 1945, pp. 1–228. However, he subsequently reversed his position and concluded that the results were not dependable. See Leo Alexander, “Medical Science Under Dictatorship,” New England Journal of Medicine, July 14, 1949, p. 43. In this case as well, information derived from experiments upon inmates of concentration camps was deemed to be significant.2At least forty-five research articles published after the war, most of which are in the field of hypothermia, draw on Nazi data. See Kristine Moe, “Should the Nazi Research Data Be Cited?” Hastings Center Report, December, 1984, p. 5. For obvious reasons, those experiments could not be duplicated.3Another major research effort focused on the introduction of a pectin-based preparation, Polygal, to prevent blood clotting. It was hoped that prophylactic use of Polygal tablets would reduce bleeding from wounds sustained in combat or during surgical procedures. Combat wounds were simulated by the amputation of the extremities of camp prisoners without anesthesia or by shooting the prisoners though the neck, chest or spleen. The number of lives lost in those experiments is not reported. See Berger, “Nazi Science,” p. 1439, and Alexander, “Medical Science Under Dictatorship,” p. 42. Another series of high-altitude experiments on humans resulted in 70 to 80 deaths. See Berger, “Nazi Science,” p. 1439. Other experiments were designed to test the efficacy of vaccines and drugs against typhus and to achieve heteroplastic transplantation of limbs. See Alexander, “Medical Science under Dictatorship,” p. 43. Data yielded by those unsuccessful inhuman experiments appear to be of no significance to ongoing scientific research. These and other immoral experiments are described in some detail by Telford Taylor in the opening statement of the prosecution, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law 10, vol. 1 (Washington, D.C.: Superintendent of Documents, U.S. Government Printing Office, 1950); Military Tribunal Case 1, United States v. Karl Brandt et al., October 1946–April 1949, pp. 27–74, reprinted in The Nazi Doctors and the Nuremberg Code: Human Rights in Human Experimentation, ed. George J. Annas and Michael A. Grodin (New York and Oxford, 1992), pp. 67–93.
Opposition to use of data gleaned from Nazi research was voiced by Dr. Henry Beecher in an article published in the June 16, 1966 issue of the New England Journal of Medicine.4Henry K. Beecher, “Ethics and Clinical Research,” New England Journal of Medicine, June 16, 1966, pp. 1354–1360. Dr. Beecher formulates what may be categorized as a "Miranda argument" in asserting that illicitly obtained information dare not be recognized and admitted as evidence in the conduct of scientific investigations. This exclusionary principle would require that such information be totally and completely ignored on the grounds that use of immorally obtained data is itself immoral. More recently, use of such data has been decried by ethicists such as Dr. Daniel Callahan, director of the Hastings Center, and by Abraham Foxman, national director of the Anti-Defamation League of B'nai B'rith.5See New York Times, May 12, 1988, p. A28. See also, William E. Seidelman, “Mengele Medicus,” Millbank Quarterly, vol. 66, no. 2 (1988), pp. 221–239. The issue has also been addressed by a number of rabbinic writers.6See R. Abraham Meir Israel, “Terufot shel Meḥkarei ha-Naẓim Yemaḥ Shemam,” Ha-Pardes, Tishrei 5750, pp. 11–13; and R. Tibor Stern, “Issur Hana’ah me-Harugei Malkhut,” Ha-Pardes, Tishri 5750, pp. 13–14. See supra, p. 198, note 61.
Perhaps the most fundamental argument against use of information obtained by the Nazis is not ethical in nature, but scientific, i.e., that the data are unreliable. The methodology employed by those scientists, it is argued, was sloppy, the experiments poorly designed, the research shoddy and the reports incomplete, inconsistent, unreliable and probably freely fabricated.7See A. Mitscherlich and F. Mielke, Doctors of Infamy: The Story of the Nazi Medical Crimes, trans. by H. Norden (New York, 1949); Harmut Hanauske-Abel, “From Nazi Holocaust to Nuclear Holocaust: A Lesson to Learn,” Lancet (August 2, 1986), p. 271; and Berger, “Nazi Science,” pp. 1439–1440. Most notably, Berger describes the medical officer who supervised the hypothermia high-altitude and blood-clotting experiments, Dr. Sigmund Rascher, as unqualified and depicts him as an opportunist seeking to establish qualifications for a university appointment. Berger cites a document introduced at the Nuremburg trials in which Professor Karl Gebhardt, a general in the SS and Himmler’s personal physician, is reported to have told Rascher with regard to his experiments on hypothermia through exposure to cold air that “the report was unscientific; if a student of the second term dared submit a treatise of the kind [Gebhardt] would throw him out.” Berger further cites a statement authored by a German general found among the papers of Leo Alexander, a psychiatrist and consultant to the American Chief of Counsel for War Crimes, that asserts: That is a matter to be resolved by scientists, not by ethicists or rabbinic decisors. There is, however, no gainsaying the fact that some respected researchers do indeed believe that such data can prove to be of value in their own work.8Robert Pozos, a physiologist specializing in hypothermia, asserts that data derived from the Dachau experiments can advance contemporary research and save lives. See Robert Pozos, “Can Scientists Use Information Derived from Concentration Camps?” in Conference on the Meaning of the Holocaust for Bioethics, Minneapolis, May 17–19, 1989: Transcript of the official recording, pp. 1–17. Similarly, John S. Hayward of the University of Victoria in British Columbia has used Nazi cooling curves to determine how long cold-water survival suits will protect people at near-fatal temperatures. See Moe, “Should the Nazi Research Data Be Cited?” p. 5.
At one time Leo Alexander regarded the Nazi hypothermia experiments as having been conducted in a reliable manner. See Alexander, “The Treatment of Shock from Prolonged Exposure to Cold, Especially in Water.” However, he subsequently reversed his position and concluded that the results were not dependable. See Alexander, “Medical Science Under Dictatorship,” p. 43. Whether those scientists are correct or incorrect is irrelevant to a discussion of either the ethical or halakhic issues involved; they are fully entitled to their convictions. In formulating the relevant questions of Jewish law, the possibility of deriving potential benefit must be taken as a given.
Moreover, although the German experiments are not only the most widely known but also involved the most heinous examples of unconscionable scientific research, they are by no means the sole examples of immoral experimentation. There have been numerous instances involving human research in the United States in which human rights were flagrantly disregarded.9The Tuskegee, Alabama study involving 412 poor black sharecroppers suffering from syphilis is probably the best known and most notorious case. Physicians observed the ravages of the disease, including blindness, paralysis, dementia and early death without disclosing the diagnosis. Even after penicillin proved to be an effective treatment for syphilis the patients were left both untreated and uninformed. Other examples include the Willowbrook hepatitis study in which retarded children were deliberately given the hepatitis virus, and placebo-controlled studies of the treatment of streptococcal pharyngitis which predictably led to many avoidable cases of rheumatic fever. See Beecher, “Ethics and Clinical Research,” pp. 1354–60. No rule, either of science or logic, postulates that moral repugnance necessitates scientific unreliability. Other instances of immoral experimentation might yield data regarded as valuable beyond cavil. Accordingly, the question of utilization of immorally obtained data cannot be brushed aside as entirely speculative. An obvious example may be found in the area of presently ongoing fetal tissue research involving use of fetuses obtained as a result of non-therapeutic abortions.
A number of arguments auguring against use of data derived from Nazi experimentation have appeared in articles published in rabbinic journals. The most sweeping criticism of utilization of this information is based upon an appeal to a well known and fundamental principle of Jewish law: "Everything may be utilized for healing, save for idolatry, some forms of sexual licentiousness and homicide" (Pesaḥim 28a). It is alleged that it is this principle that is employed by Rambam in his Commentary on the Mishnah, Pesaḥim 66a, in explaining the basis of the approbation expressed by the Sages for certain actions on the part of King Hezekiah. The Gemara reports that Hezekiah suppressed a certain medical work and that his conduct found favor in the eyes of the Sages. Rambam, together with other classical commentators on the Talmud, is troubled by the Sages' endorsement of what appears to have been a singularly irrational act. Medical works are indispensable aids in effecting cures and preserving life. One would have anticipated that the Sages would have advocated the broadest possible dissemination of medical knowledge rather than its suppression. One explanation offered by Rambam in resolution of this perplexity is that the work in question advocated modes of therapy "which the Torah does not permit to be used for healing." Rambam's reference is either to practices that are themselves idolatrous in nature, or more likely, to the "ways of the Amorites" and kindred practices prohibited because of their association with idolatry and encompassed within the ambit of the prohibition "and you shall not walk in their statutes" (Leviticus 18:3). Nevertheless, in context, Rambam's comments must be understood as restricted to a ban against performance of an illicit act for therapeutic purposes, not as banning subsequent utilization of information gleaned from the performance of such an illicit act.
This distinction comes sharply into focus in the formulation of two entirely disparate hypothetical questions that might have been posed to a rabbinic decisor during the period of the Holocaust by a physician seeking to conduct himself according to the dictates of Halakhah. In both hypothetical situations the physician has been ordered by the commandant of a concentration camp to perform certain bioethical experiments and has been warned that non-compliance will result in his own death.
In the first scenario, the physician informs the rabbi, "My experiment requires the bodies of males having blue eyes, blond hair and being at least six feet tall. If I agree to engage in this research, cadavers will be obtained in the course of future selections. Rather than being sent to labor camps, males possessing these physical characteristics will be marked for extermination so that their bodies may be made available for experimentation." A responsible rabbinic decisor would be hard put to find grounds upon which to sanction cooperation on the part of the physician. Non-cooperation on the part of the physician would prevent the experiments from being carried out and effectively thwart any scheme to select for death six feet tall, blue-eyed, blond males. Hence, the physician's acquiescence would involve complicity in the murder of persons whose lives would otherwise be spared. Judaism teaches that a person is obligated to suffer martyrdom rather than cause the death of another, even if his action is only an indirect cause of the illicit taking of a human life. This is so even if a specific number of persons will be put to death in any event and the issue is only selection of particular individuals.
The second scenario involves a situation in which the physician informs the rabbi, "I have been asked to conduct scientific research using the bodies of persons executed by the Nazis. I will select the cadavers appropriate for my work from among the victims already put to death. The Germans conducting the selection know nothing of my requirements and will make their determinations on grounds entirely extraneous to the need for cadavers appropriate for my experiment." The latter situation is readily distinguishable from the former in that the physician is not at all implicated in causing the death of an innocent person. His involvement is limited to the use of the corpse after death has already occurred. Assuredly, the execution of innocent victims is immoral and reprehensible. But, although the physician could learn nothing of scientific value without the antecedent taking of human life in a wanton and diabolical manner, that heinous act is already a fait accompli at the time of the physician's involvement. Accordingly, since the physician is not saving his own life at the cost of the life of another, the physician can do as he is ordered. Since there exists a clear threat to the life of the physician, lesser prohibitions concerning the violation of the corpse are suspended for purposes of pikuaḥ nefesh.
Interestingly, it is precisely this distinction that is illuminated by Rambam's comments explaining Hezekiah's suppression of the medical work referred to by the Mishnah in Pesaḥim on the grounds that it recommended illicit therapeutic measures. Rambam distinguishes between the motives of the author of that medical work and the use to which it was put by its readers. The anonymous author, Rambam tells us, composed the work "by way of knowledge of the nature of reality," i.e., as a work of theoretical science rather than for purposes of clinical implementation and, declares Rambam, "this is permissible." "Moreover," continues Rambam, "it should be clear to you that there are matters which God prevented [us] from carrying out but which it is permitted to study and to understand." Although, for example, performance of an act of idolatry is forbidden even for life-saving therapeutic purposes, it is nevertheless permitted to investigate and study the curative properties of the act in order to apply them in a licit manner. Hezekiah intervened only when it became apparent that the medical work in question was being utilized clinically for purposes that could not be sanctioned. Similarly, while lives may not be sacrificed in order to achieve a cure or to preserve life, that principle does not serve to bar investigation of the manner in which the homicide was committed or to forbid an anatomical examination of the organs of the victim in order to discover potentially life-saving information.
Another objection to utilization of such data has been raised on the basis of a consideration advanced in the eighteenth century by R. Jacob Emden, She'ilat Ya'avez, II, no. 158, and amplified by the late R. Meshullem Roth, Teshuvot Kol Mevaser I, no. 58. Located in an institution in Jerusalem on Mount Zion is a museum containing artifacts relating to the Holocaust. It was the institution's practice to conduct an annual memorial service in commemoration of the atrocities committed during the course of World War II. For many years it was the practice of the ḥazan, the officiant leading the service, to gird himself with one of the artifacts on display, viz., a hangman's noose that had been used to execute Jewish victims. The organizers of this event deemed it appropriate to utilize this tool of execution for a sacred purpose in memorializing the victims of those atrocities and hence the practice arose for the ḥazan to use that piece of rope as a gartel (belt) while leading the prayer service. Apparently, after the practice had been established and confirmed over a period of time, objections were raised regarding the propriety of the practice and Rabbi Roth was approached and asked to render a halakhic ruling.
Rabbi Roth found a precedent in a somewhat different question discussed by R. Jacob Emden in his She'ilat Ya'avez. The matter presented to R. Jacob Emden involved a situation in which an individual had acquired a sword previously used by an executioner in dispatching his victims. That person wished to fashion the sword into a knife to be utilized for the ritual slaughter of kosher animals. She'ilat Ya'avez rules that such use is not sanctioned by Jewish law. The Mishnah, Sanhedrin 45b, declares, "The stone with which [the condemned] was stoned, the stake on which he was hanged, the sword with which he was beheaded, and the cloth with which he was strangled, are all buried with him." Jewish law requires that the various artifacts used by the Bet Din in administering the respective forms of capital punishment be disposed of by means of interment. Both Rashi, ad locum, and Rabbenu Peretz, cited by Yad Ramah, Sanhedrin 45b, indicate that the requirement for burial is established on the basis of a scriptural pleonasm. She'ilat Ya'avez asserts that the requirement for burial is not limited to items used in the execution of transgressors, but extends also to any object employed in causing death. She'ilat Ya'avez asserts that no benefit may be derived from the sword that had been used as a tool of execution. Accordingly, he rules that such a sword may not be used as a slaughtering knife and must be buried.10Much earlier, R. Judah he-Hasid, Sefer Ḥasidim, no. 1,113, ruled that an executioner’s knife found in a grave in which martyrs had been buried must be returned to its burial site. See also Azharot Nosafot, sec. 6, appended to the Jerusalem, 5717 edition of Sefer Ḥasidim on the basis of the Munich manuscript. In the latter comment Sefer Ḥasidim declares that one who derives benefit from a sword with which a Jew has been put to death causes “grave danger to himself and to his entire family” and advises that the sword be interred together with the victim. Rabbi Roth cites that discussion in similarly ruling that no benefit may be derived from the hangman's noose and that it should be disposed of by means of burial.
It is, however, not entirely clear that the stipulations posited by the Mishnah in Sanhedrin support the conclusions of She'ilat Ya'avez and Kol Mevaser. In clarifying this provision of Jewish law, Rambam, Hilkhot Rozeaḥ 15:9, states that burial of the artifacts used to put the condemned transgressor to death is mandated "so that he will not be remembered for evil and people not say, 'This is the stake upon which so and so was hung.'" According to Rambam, burial of such articles is designed to prevent ignominy to the deceased. A similar explanation is advanced by the Gemara, Sanhedrin 54b, with regard to the rationale underlying the requirement for execution of an animal utilized as a participant in an act of bestiality. As noted by Leḥem Mishneh, ad locum, Rambam, in advancing this rationale, is not citing a statement of the Gemara or of any earlier rabbinic source explicitly advanced in elucidation of this particular provision of Jewish law. Moreover, it is not Rambam's general practice to incorporate the rationale reflected in specific mizvot in his codification of the pertinent provisions of Jewish law. The fact that Rambam does so in this case suggests that there are halakhic ramifications that are attendant upon the rationale and hence the rationale forms an integral part of the ruling. Rambam, as well as Yad Ramah, who also posits the identical rationale for these halakhic provisions, may well have been of the opinion that these artifacts are not at all asur be-hana'ah, i.e., that these artifacts are not to be numbered among those objects from which it is forbidden to derive benefit. Indeed, She'ilat Ya'avez himself cites a latter-day authority who apparently maintained that there is no issur hana'ah associated with such artifacts. Although, to be sure, objects from which benefit may not be derived require burial in order to eliminate the possibility of violation of the issur hana'ah, conversely, the fact that an object requires burial does not ipso facto indicate that it is asur be-hana'ah. A corpse requires burial by virtue of the explicit biblical command "you shall surely bury him the same day" (Deuteronomy 21:23). Yet the prohibition against deriving benefit from a cadaver is deduced by the Gemara, Avodah Zarah 29b, from an entirely different source. Rambam may well have incorporated the rationale underlying the requirement for burial of the implements of capital punishment in order to demonstrate that the requirement for burial is not the product of an issur hana'ah.11Moreover, it may be cogently argued that, according to Rambam, the requirement for burial of the implement of execution “so that he will not be remembered for evil” is limited to artifacts used in the execution of persons guilty of capital transgressions. Such individuals are put to death for having performed ignominious deeds and anything that focuses attention upon the nature of their death does no honor to their memory. The death of a victim of wanton persecution or ordinary homicide is in no way ignominious. Quite to the contrary, Teshuvot Ḥatam Sofer, Yoreh De‘ah, no. 333, describes such a person as a “kadosh—a holy one.” Certainly, one finds no explicit reference in rabbinic literature of a need to suppress publicization of the nature of such a death.
It may be noted that “the stake upon which he was hanged” refers to the hanging of the body of the executed transgressor subsequent to administration of one of the forms of capital punishment. The prohibition against deriving benefit from the “stake” clearly applies only in the context of capital punishment administered by the Bet Din.
However, even if it is to be granted that an issur hana'ah is attendant upon implements of execution as well as upon any artifact utilized in putting a Jew to death, such a provision of Halakhah is not at all germane with regard to the question under consideration. Any prohibition of this nature applies solely to benefit derived from the actual implement of execution or homicide but to nothing else.12R. Abraham Meir Israel, Teshuvot va-Ya‘an Avraham, Yoreh De‘ah, no. 66, reports that he was asked whether it was permissible to fashion mezuzah cases from metal pipes through which gas was channeled in the murder of Jews in the concentration camps. Rabbi Israel cites the statement of the Gemara regarding implements used in carrying out the death penalty as well as the rulings of Sefer Ḥasidim and She’ilat Ya‘aveẓ regarding the executioner’s sword and rules that the pipes in question are asur be-hana’ah and require burial. Those sources, however, do not support his conclusion. The gas used in execution of hapless victims may indeed be compared to the executioner’s sword; the pipe through which the gas is channeled, however, is merely a container for the gas and is not the proximate cause of the victim’s death. For example, unlike the issur hana'ah associated with objects of pagan worship, money derived from the sale of such items is not asur be-hana'ah. By the same token, while it may be forbidden to utilize such objects for purposes of deriving scientific information, nevertheless, if information is obtained in violation of this prohibition, the information does not itself become asur be-hana'ah; hence such information, once obtained, may be utilized for any beneficial purpose.13Benefit is prohibited only when the object that is asur be-hana’ah is the proximate cause of the benefit. Accordingly, an indirectly desired future benefit is always permissible. See Rashba, Sukkah 31b.
Yet another argument against use of data derived from Nazi experimentation is based upon a general issur hana'ah concerning derivation of benefit from a cadaver and may be rebutted in the selfsame manner. In a discussion of the propriety of post-mortem dissections, R. Moses Sofer, Teshuvot Hatam Sofer, Yoreh De'ah, no. 336, and R. Moses Schick, Teshuvot Maharam Shik, Yoreh De'ah, no. 344, rule that anatomical studies may not be performed upon a cadaver because of the issur hana'ah attendant upon a corpse. These authorities role that histaklut, mere examination or gazing upon the body for purposes of acquiring information is a prohibited form of benefit.14Cf. R. Meir Schapiro, Teshuvot Or ha-Me’ir, no. 74, sec. 4, who apparently did not recognize this to be the thrust of Hatam Sofer’s concern and hence advances the consideration cited supra, note 13, in refutation of Ḥatam Sofer’s position. This contention, first formulated by Hatam Sofer, has been the focus of much discussion in subsequent rabbinic literature. In particular, R. Chaim Sofer, Teshuvot Maḥaneh Hayyim, III, no. 60, rules that mere examination or histaklut does not entail a violation of the issur hana'ah.15R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Mahadura Telita’ah, Oraḥ Ḥayyim, no. 29, regards histaklut as a forbidden form of benefit but nevertheless cites the comments of Ran, Nedarim 39b, in permitting mere visual examination of a cadaver for purposes of acquiring information necessary for the treatment of a sick person on the grounds that treatment of the patient constitutes a miẓvah. Levushei Mordekhai rules that benefit derived passively, i.e., without an overt action, for purposes of fulfilling a miẓvah, is not prohibited. See also R. Yehudah Leib Graubart, Teshuvot Ḥavalim ba-Ne’emim, III, no. 64.
R. Yitzchak Arieli, Torah she-be-'al Peh, vol. VI (5724), argues that although acquisition of knowledge may be a "benefit," insofar as a corpse is concerned, acquisition of knowledge is she-lo kederekh hana'ah, i.e., such benefit constitutes an "unusual" form of benefit that is not subsumed under the issur hana'ah associated with a cadaver. That argument, however, is based upon a disputed premise. Although a 16th-century authority, R. David ibn Zimra, Teshuvot Radbaz, III, no. 547, did permit "unusual" forms of benefit to be derived from a corpse, both Mishneh le-Melekh, Hilkhot Avel 14:21, and R. Akiva Eger, Gilyon ha-Shas, Avodah Zarah 12b, adopt a contrary view. The latter two authorities observe that "unusual" forms of benefit are excluded only from those issurei hana'ah with regard to which the prohibition is couched in scriptural terminology proscribing "eating." Although, in such contexts, reference to "eating" does not limit the prohibition exclusively to gastronomical activity, it does serve to establish a paradigm in prohibiting only those activities that are analogous to "eating," i.e., activities from which pleasure or benefit is derived in an ordinary and usual manner. With regard to prohibitions in which no such scriptural paradigm exists, the prohibition against "benefit" includes even pleasure or benefit derived in an unusual manner. Thus, no benefit whatsoever may be derived from milk and meat that have been cooked together or from the growth of mixed species of grain and grapes that have been commingled in planting. In each of those cases, the prohibition is not expressed as an admonition against "eating" and hence even unusual forms of benefit are proscribed. R. Akiva Eger, noting that the prohibition against deriving benefit from a corpse is also not couched in such phraseology, declares that it is forbidden to derive even unusual forms of benefit from a corpse.
The basic issue, of course, is whether, for purposes of Halakhah, mere examination or histaklut constitutes a form of benefit. In support of that position Maharam Shik cites a statement of the Mishnah, Nedarim 48a. A person who, by means of a vow, generates a prohibition against deriving benefit from his fellow townsmen is forbidden to benefit from property owned by the "town" since such property is regarded as held collectively by the inhabitants of the town. The Mishnah explicitly enumerates "sefarim," i.e., Torah scrolls and scrolls of the Prophets and Hagiographa, among the items of property owned by the townspeople collectively from which, under such circumstances, benefit may not be derived. Obviously, the benefit derived from "sefarim" is the knowledge and information that is obtained as a result of reading the scrolls. Accordingly, it is evident from this source that discovery of previously unknown facts or acquiring new insights and understanding constitutes a "benefit" that may not be derived from an object that is asur behana'ah.
It should, however, be noted that Bet Yosef, Yoreh De'ah 224, cites the ruling of Rashba who permits use of sefarim under such circumstances, presumably because his text of the Mishnah did not include the word "sefarim." If that crucial word is absent in the Mishnah there is, of course, no textual evidence establishing the proposition that acquisition of information constitutes a form of hana'ah of which Halakhah takes cognizance and, accordingly, there exists no talmudic evidence supporting a prohibition against mere visual examination of a cadaver for scientific purposes.
The principle established by the accepted text of the Mishnah as it appears in all published editions seems to stand in contradiction to another accepted principle of Jewish law. It is categorically forbidden to derive mundane "benefit" from property belonging to hekdesh, i.e., property that has been consecrated for use in maintenance and upkeep of the Temple. Benefit derived in violation of this prohibition constitutes the transgression of me'ilah and carries a statutory punishment. In this context, a clear definition of benefits excluded from such punishment is forthcoming. The Gemara, Pesaḥim 26a, declares, "Sound, sight and smell do not constitute me'ilah (kol, mareh va-reaḥ ein ba-hen mishum me'ilah)." In context, the Gemara is defining and limiting the concept of hana'ah, or benefit. Although other forms of sensual pleasure do constitute hana'ah, benefit derived by means of "sight" does not rise to the level of a prohibited "benefit." The principle is made explicit with regard to the prohibition concerning me'ilah but, logically, it is equally applicable to all categories of issurei hana'ah.
This, however, does not necessarily mean that such forms of hana'ah are entirely innocuous and hence permissible. The talmudic statement "ein ba-hen mishum me'ilah" serves only to establish that enjoyment of such benefit does not constitute a punishable infraction. Despite the fact that no punishable offense is engendered as a result of deriving benefit from "sound, sight or smell," the act may yet remain prohibited, albeit unpunishable. Indeed, the Gemara, Pesaḥim 26a, declares explicitly that derivation of such benefit is an infraction of Jewish law. That prohibition is recorded by Rambam, Hilkhot Me'ilah 5:16. Nevertheless, Tosafot, Shabbat 21a, cites a statement of the Gemara, Sukkah 53a, to the effect that a woman is permitted to sort kernels of wheat by the light illuminating festivities attendant upon the drawing of water on Sukkot (simḥat bet ha-sho'evah). Illumination was provided by means of fuel purchased with consecrated funds devoted to defraying the cost of that celebration. The woman's activity is entirely secular and mundane. Although an alternate interpretation is suggested, Tosafot cite a comment of the Palestinian Talmud indicating that the woman's activity is entirely permissible, i.e, that there is no prohibition whatsoever against deriving a benefit by means of "sight" from that which is otherwise asur be-hana'ah.16Cf., Tosafot, Pesaḥim 26a, s.v. me‘ilah and Pnei Yehoshu’a, Shabbat 21a. See also R. Ovadiah Yosef, Yabi‘a Omer, III, Yoreh De‘ah, no. 20. However, even according to Tosafot, the Babylonian Talmud appears to prohibit benefit in the form of "sound, sight or smell."17See the discussion of R. Joseph Cohen in his Harerei be-Sadeh, annotations on R. Zevi Pesach Frank, Har Ẓevi, Oraḥ Ḥayyim, I, no. 183.
The prohibition concerning "sight, sound and smell" is not limited to benefit derived from consecrated property (hekdesh) but extends to other forms of issurei hana'ah as well.18See, however, Teshuvot Kol Eliyahu, II, Oraḥ Ḥayyim, no. 23, who asserts that, according to Rambam, the prohibition is indeed limited to benefit derived from consecrated property. Cf., the differing opinions regarding Rambam’s position cited by Yabi‘a Omer, VI, Oraḥ Ḥayyim, no. 34, sec. 3. The issue with regard to forbidden forms of smell arises with regard to the prohibition against deriving benefit from ḥamez on Pesaḥ. On Pesaḥ, may a Jew, knowingly and willingly, inhale the pleasant aroma of freshly baked bread? On the basis of a statement found in a gloss appended to Issur ve-Heter he-Arukh 39:33, it is clear that such pleasure is forbidden to a Jew on Pesaḥ. A similar ruling is recorded by Shulḥan Arukh ha-Rav, Oraḥ Hayyim 443:3, and Ma'adanei Shmu'el 113:2. Similarly, with regard to sight, Shulḥan Arukh, Yoreh De'ah 142:15, rules that it is forbidden to enjoy the aesthetic pleasure derived from gazing upon an object of beauty if the objet d'art is associated with idolatrous practices. Accordingly, it would follow that the prohibition against deriving benefit from a corpse would serve to prohibit even benefit derived solely from visual examination.19Although the distinction is not made explicitly by Maḥaneh Ḥayyim in his discussion of this issue, that authority may have intended to distinguish between “sight” (mar’eh) in the sense of illumination and “sight” as a means of acquiring information. Maḥaneh Ḥayyim apparently regards illumination enabling a person to see properly as a form of proscribed sensual benefit, whereas histaklut, or visual examination, yielding intellectual benefit that is non-sensual in nature, he regards as permissible.
Nevertheless, the controversy concerning a prohibition attendant upon visual examination of a cadaver is not germane to the issue of utilization of scientific data yielded by immoral experimentation. Accepting the position of Hatam Sofer that it is forbidden to examine a corpse for purposes of acquiring medical knowledge, one nevertheless searches responsa literature in vain for a ruling to the effect that a person who has attended medical school and has illicitly studied anatomy is subsequently forbidden to earn a livelihood by utilizing that knowledge and skill as a surgeon. The sole question is whether a medical student may examine a corpse in order to study the anatomy of the human body. Although that issue is a matter of controversy, no rabbinic authority has ruled that such knowledge, once acquired, cannot be utilized for a beneficial purpose. The original derivation of the information may indeed constitute a forbidden benefit; yet, once such information has been assimilated, the prohibition has ipso facto been irreversibly violated regardless of whether or not such information is subsequently put to practical use. Subsequent benefit generated by utilization of that knowledge is not proscribed.
It has been said that the history of medicine is strewn with the products of immoral experimentation. Nevertheless, prior to the discussions concerning Nazi experimentation, no ethicist has sought to ban the benefit derived from research conducted in violation of moral norms. According to Hatam Sofer, any medical information obtained at autopsy is the product of an illicit act. Yet, no rabbinic authority has banned the use of such information once it has been obtained.
Quite to the contrary, there are other talmudic sources that seem to confirm the permissibility of utilization of information obtained in an illicit manner. The Gemara, Bekhorot 45a, recounts that the students of R. Ishmael obtained the body of a harlot who had been executed by civil authorities and boiled the cadaver in order to determine the number of organs in the human body. Similarly, the Gemara, Niddah 24b, relates that Abba Sha'ul said of himself that at an earlier period in his life he was professionally involved in the burial of the dead and that it was his wont to scrutinize the bones of the deceased. As a result of his examinations he discovered that "The bones of one who drinks undiluted wine are burned; those of one who drinks properly diluted wine are black (or dry, according to the second explanation of Rashi). The bones of one whose drinking exceeds his eating are burned; [those of one] whose eating exceeds his drinking are black (or dry); [those of one who eats and drinks] properly are [moist with] oil." Elsewhere, the Gemara, Nazir 52a, addresses a question pertaining to ritual defilement that hinges upon whether a number of spinal vertebrae come from a single cadaver or from the corpses of a multiple number of individuals. The Gemara relates that a container full of bones was brought to the synagogue. Thereupon a certain Theodos the Physician entered the synagogue accompanied by "all the physicians." Upon examining the bones they declared that the vertebrae did not come from a single spinal column. R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Mahadura Telita'ah, Oraḥ Hayyim, no. 29, cites this narrative and questions how it was possible for Theodos and his colleagues to make such a determination unless they had previously studied the shape and configuration of vertebrae in other cadavers. These sources serve to establish one of two halakhic principles: either (1) there exists no prohibition against deriving benefit from the corpse of a non-Jew, as Hatam Sofer does in fact deduce on the basis of Bekhorot 45a; or (2) mere examination of a cadaver does not constitute a forbidden form of hana'ah.
There is yet another source that is unequivocal. The Gemara, Niddah 32b, records a narrative concerning Cleopatra, queen of Alexandria. The subject of the underlying discussion is the question of the precise stage of gestation at which a fetus may be regarded as already having been "formed" and whether there is any distinction between a male and a female fetus in this regard. The Gemara reports that Cleopatra condemned a number of pregnant maidservants to be put to death on the forty-first day of gestation and examined their bodies subsequent to execution. She reported that both male and female fetuses were already "formed." The Gemara recognized that Cleopatra could have arranged for insemination of these slaves exactly forty days prior to execution but questions how she could have been certain that the women in question were not already pregnant at the time that she had them inseminated. If they were already pregnant there would, of course, be no proof that a fetus acquires a "form" by the fortieth day of gestation. The Gemara replies that Cleopatra administered an abortifacient to each of these women in order to destroy any already existing fetus. She was thereby assured that they were no longer pregnant and was thus enabled to determine the precise stage of gestation by controlling the time of insemination. It must be assumed that destruction of those fetuses was illicit. Nevertheless, the Gemara did not hesitate to utilize the data derived from this immoral experiment in order to establish a scientific fact. Even those talmudic Sages who are recorded as having rejected Cleopatra's evidence did so because they distrusted her ability to control conception, not because of any moral qualms they may have felt with regard to acting upon information illicitly derived.
It should be emphasized that, even if the evidence explicitly permitting utilization of information obtained by immoral means might be rebutted, such use must nevertheless be regarded as legitimate for purposes of pikuaḥ nefesh unless there is clear and convincing evidence to the contrary. Any and all measures must be utilized for purposes of preserving life unless there exists clear evidence predicated upon talmudic sources indicating that some measure must be abjured. This does not mean that one cannot empathize with those who decry the use of data derived from Nazi experimentation. Such reactions are intuitive and emotional; indeed, such intuitions and emotional reactions are entirely salutary. Nevertheless, the postulates of Halakhah are by no means always identical with intuitive reactions.
The Gemara, Sanhedrin 17a, declares that no person is qualified to serve as a member of a Sanhedrin unless he is capable of advancing one hundred and fifty reasons in favor of freeing a rodent from ritual impurity. It is nevertheless quite clear that the Torah has rendered a rodent impure. Accordingly, any argument advanced to the contrary must be incorrect. If so, queries Tosafot, why should a candidate for judicial office be required to be proficient in advancing arguments predicated upon "vain sharpness" (ḥarifut shel hevel). R. Baruch ha-Levi Epstein, Tosefet Berakhah, Parashat Shemini, answers Tosafot's question by remarking that one of the requirements for sitting on a Sanhedrin is a recognition that, at times, Halakhah is counterintuitive. Only a person who can cogently argue even for the purification of a rodent can appreciate the fact that biblical provisions are sometimes contrary to the inclination of the human intellect. One who cannot do so perceives no conflict whatsoever. The ability to suspend one's own subjective judgment is a necessary condition and prerequisite for service as a judge and as a rabbinic decisor.
It may well be true that, in terms of human sensibilities, the atrocities of the Nazis should be so abhorrent that, left to our own inclinations, we should not consider using such data for even the most exemplary purposes. Nevertheless, Halakhah teaches that, difficult though it may be, when confronted with a matter of pikuaḥ nefesh, those inclinations must be transcended because "my Father in Heaven has so decreed."20It is instructive to note that studies concerning the effects of malnutrition and starvation were performed by Jewish physicians in the Warsaw ghetto and the results were smuggled out of the ghetto at considerable risk. See Leon Tushnet, The Uses of Adversity (New York, 1966), a work devoted to the description of that endeavor. See also Myron Winick, ed., Hunger Disease (New York, 1979). Although those studies involved no complicity of the Jewish doctors in the nefarious schemes of the Nazis, they do reflect an entirely correct recognition that it is not improper to derive and utilize beneficial information that would have been unavailable save for immoral acts.
These comments notwithstanding, the recently enunciated policy of the New England Journal of Medicine against publication of articles based upon unethical research, regardless of scientific merit, is, subject to some reservations, a position deserving of commendation.21See Marcia Angell, “The Nazi Hypothermia Experiment and Unethical Experiments Today,” New England Journal of Medicine, May 17, 1990, pp. 1462–1464. See also idem, “Editorial Responsibility: Protecting Human Rights by Restricting Publication of Unethical Research,” The Nazi Doctors and the Nuremberg Code, pp. 276–285. It is evident from the editorial comments announcing that decision that the unethical nature of research whose product the Journal feels constrained to reject lies in either 1) failure to obtain meaningful informed consent; 2) use of a placebo group in a clinical trial when there is already good reason to believe that the treated group will fare better; or 3) exposure of consenting subjects to appreciable risks without the possibility of commensurate benefits.
The same editorial eloquently presents the reasons for not publishing the fruits of unethical research. Publication is probably the primary goal motivating scientists to engage in medical research. It is unquestionably a highly significant consideration since publication is surely "an important part of the reward system in medical research." Accordingly, investigators would not undertake unethical studies if it were known in advance that the results simply will not be published. Conversely, publication would reinforce such behavior and lead to further unethical research. Use of data derived from unethical experimentation, it is argued, involves prospective complicity in sending the wrong message to future scientists.
Paradoxically, it is precisely because the Nazi experimentation—or the notorious Tuskegee syphilis studies22See supra, note 9.—were so bestial that citation of data yielded by those studies will not serve as an impetus for the repetition of those horrendous practices. Nor is refusal to cite those results likely to serve as a deterrent to a diabolically inclined madman. As the Journal insightfully notes, "the unethical research of today reflects thoughtlessness more than callousness." To paraphrase a Yiddish aphorism: A lock upon the door of prestigious journals is designed to deter the basically honest researcher; for the basically dishonest or morally corrupt, no lock is effective. It is precisely because of the fact that "if small lapses were permitted we would become inured to them and this would lead to larger violations" that, in this context, we need to be more concerned with small lapses than with larger violations. Moreover, "small lapses" are usually designed only to assure speed and to promote efficiency. If a study is rejected for publication because of ethical insensitivity to "small" matters the study may be repeated by the same investigator or by others using ethically irreproachable methods. Studies involving gross improprieties, by their very nature, cannot be replicated.
Nevertheless, there may well be circumstances in which refusal to publish will not yield the desired effect or in which delay necessitated by repetition of the study may jeopardize lives. Such circumstances generate a true moral conflict. Fortunately, there are options available that make it possible to escape from between the horns of this dilemma. Publication is not incompatible with concomitant censure and sanctions by appropriate professional and scientific organizations.23Professor Arthur Caplan, at the time a bioethicist at the University of Minnesota and presently at the University of Pennsylvania, has taken the position that Nazi data can be used so long as the purpose is an important one and the data are presented with a clear moral denunciation of the methods utilized in obtaining the information presented. See Mills, “Use of Nazi Data,” p. 51. Editorial disclaimer and repudiation of the breeches of ethical propriety involved in the research are both obvious forms of peer sanction as well as strong disincentives to future lapses. Since enhancement of scientific reputation as well as ego gratification are a function of frequency of citation in scientific and medical literature it should become the accepted norm for ethically tainted studies to be cited without attribution of authorship.24It must, of course, be recognized that if publication is to be accompanied by editorial censure and, in addition, the prospect of recognition in the form of future citation is closed it is unlikely that any researcher would consent to publication of his name in association with an ethically unacceptable study. Indeed, he would probably seek to withdraw his submission from publication and this proposal would become self-defeating insofar as saving of human life is concerned. That, too, may be remedied. Attendant legal problems notwithstanding, once it has been determined that a study submitted for publication is based, in whole or in part, upon procedures that society cannot condone, in this writer’s opinion, considerations of pikuaḥ nefesh would render it entirely ethical to publish such a study anonymously without the consent of the author or authors. If such a policy is found to be ethically sound and pragmatically effective the obvious legal obstacles to implementation can be overcome by equally obvious legal devices. Thus, medical and scientific journals might publish a brief notice that all submissions will be subjected to peer review for determination of ethical propriety and, with such review serving as consideration, require that, as a condition of submission, the author waive both the right of withdrawal and the right of attribution in the event that the reviewers determine that an ethical impropriety has occurred.
In an attempt to please Himmler by proving that the growth of the Aryan population could be accelerated through an extension of the childbearing age, Rascher made it known that his wife had given birth to their children in quick succession after turning 48 years old. During her fourth "pregnancy," Mrs. Rascher was arrested for attempting to kidnap an infant. The ensuing investigation disclosed that the other three Rascher children had not been born to Mrs. Rascher but had been bought or abducted.
Himmler felt betrayed and had his protégé arrested in April 1944. Berger further reports that, besides complicity in the kidnapping, Dr. Rascher was accused of financial irregularities, the murder of a German assistant and scientific fraud. Dr. and Mrs. Rascher were subsequently executed at one time, presumably on Himmler's orders.