by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion
A three-year old daughter is suffering from an incurable disease. The child is likely to die very soon and the only cure for her may be to transplant bone marrow from her nine-year old sister. The transplant process is almost harmless to the donor. The Court is asked to order the doctors who had recommended a transplant to carry it out.
How should the Court rule?
Our last column discussed the Unjust Enrichment Law, 5739-1979, by which the Knesset recognized, in keeping with the principles of Halakha, a Good Samaritan’s right to receive compensation from the person he rescued for the reasonable expenses he incurred in the act of rescue he initiated, even where the person rescued attempts to argue: I did not ask or wish to be rescued!
However, does Halakha (or Israeli law) lay down any duty on a person to rescue another person in danger? And if such a duty does exist, are there any limits to its performance - such as where one’s own life may be endangered in the process of rescuing the other person’s life?
In the 1983 Court case of Attorney General v. Tzividali (the facts of which are outlined on page 1),Justice Tal wrote as follows regarding the first of these questions:
“I have also given thought to the position of the Halakha in a case such as this. We are commanded by the Torah to save a person in a perilous situation: ‘From where do we know that a person who sees another drowning in a river, or mauled by wild animals or attacked by robbers, must save him?’ [asks the Gemara in Sanhedrin 73b] From the verse: You shall not stand idly by the blood of your neighbor (Vayikra 19:16).’
Apart from the negative command not to stand idly by, there is also a positive command to rescue a person who is in danger, derived from the duty to restore something that another person has lost [hashavat aveida - see Devarim 22:2], which the Rabbis interpreted as meaning that even his life you must restore to him… The same applies to rescue from a possible peril, even if that involves discomfort to the rescuer…
Jewish law considers saving a life a legal duty. The examples cited by Gemara Sanhedrin earlier teach that the duty to rescue is a duty not to ignore your neighbor when there is a risk to his life; this duty even requires the bystander to make a strenuous effort to save the victim. But does this duty also include a requirement that the rescuer imperil/endanger himself in the act of rescue?
In the case at hand, the Court was asked to rule on this very question: was the nine-year old daughter under any duty to donate bone marrow to her three-year old sister, when the transplant process was almost harmless to the donor?
Justice Tal continued his ruling by stating:
“The authorities are, however, divided over whether the rescuer must place himself in danger or [even] potential danger in order to save his neighbor even from certain peril.”
The Beit Yosef on the Tur Shulkan Arukh (462:2) rules affirmatively on this issue, the reason being that “the other person [= the victim] is certainly going to die, whereas there is a doubt as to whether he [= the rescuer] will actually die. And anyone who saves one Jewish life it is as if he has saved an entire world.”
On the other hand, it could be argued that “even a slight doubt in his [= the rescuer’s] case outweighs the fact that the other person will certainly die… so that for the rescuer to endanger his own life is false piety… For who says that the other person’s life is more valuable than yours?” (Shu”t HaRadbaz 1582).
Interestingly, Rav Yosef Karo (the author of the Beit Yosef) does not cite the ruling quoted in the Beit Yosef in his final code of Jewish Law, the Shulkhan Aruch! And the reason for this would appear to be because the Rambam, the Rosh and the Tur did not quote this ruling in their Halakhic Codes (see the Sem”a commentary on the Shulkhan Aruch: 426:2).
“In the present case,” therefore, Justice Tal ruled, “even under the Halakha there is no occasion to compel the young sister to donate bone marrow… Since the bone marrow will be taken under general anaesthetic, she faces potential danger, even though it is remote, and those who think that no obligation to rescue arises where there is potential danger do not differentiate between immediate and remote danger. (One of the reasons given by Radbaz citing an actual case that he knew of is that potential remote risk may become a real risk.)”
We cannot conclude this column without mentioning two final points. The first is that the Knesset passed a law several years ago entitled “You shall not stand idly bythe blood of your neighborLaw, 5758-1998”. This law on the Israeli statute book incorporates, word for word, the Torah’s command not to callously ignore a fellow human being in distress! For the first time, bystanders and passers-by now have a legal duty (the breach of which carries sanctions) to help others in serious and immediate danger to their lives or health, even if they incur financial damages in the process, except where their own life (or the other person’s life) would be endangered by intervening.
The second point concerns the p’sak of the Aruch HaShulkhan concerning our issue (Choshen Mishpat 426:4):
“The Poskim have quoted the Talmud Yerushalmi which obligates a person to enter into a state of possible endangerment in order to save his fellow from almost certain danger; the Rishonim, however, omitted this ruling, because the Talmud Bavli does not obligate a person to jeopardize his own life to save the life of another.
However, everything depends on the particular circumstances, and the facts must be weighed extremely carefully - and a person should not overly worry about the possibility that something might happen to him…”
[Question, for further discussion: Must/should/may a perfectly healthy person donate one kidney in order to save the life of another person, both of whose kidneys are not functioning?]
(a) Justice Tal’s ruling in Attorney General v. Tzividali (1983, District Court Decision), as cited in “Modern Applications of Jewish Law,” 1992 (English), by Prof N. Rakover, former Deputy Attorney-General in Jewish Law Department of Israel Ministry of Justice; pp. 121-122.
(b) ‘You shall not stand idly by the blood of your neighbor’ in“Jewish Law and Israeli Law: On the Process of Integration,” 1998 (Hebrew), Prof N. Rakover, p. 28.
(c) ‘The Duty to Rescue While Endangering Oneself’ (Hebrew case study and source materials), The Jewish Legal Heritage Society, Prof. N. Rakover.
To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net
Jewish Law in our Times > Medical Ethics Issues
moshe, 3/13/2005 3:57:44 PM