Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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1 - Terminally Ill Patients and the Right to Die

The Gemara (Bava Metzia 87a) states that, until the time of Avraham, there were no physical signs of old age. Since Avraham and Yitzchak appeared identical, whoever wanted to speak with Avraham might mistakenly find himself talking with Yitzchak... whereupon Avraham beseeched Hashem for mercy and physical indications of old age came into being. The Gemara continues that, until the time of Ya’akov Avinu, there were no signs of weakness that preceded death. Ya’akov came and beseeched Hashem for mercy and from then on feebleness came into being, as the pasuk states (Ber. 48:1): “And it was told to Yosef: Behold[1] , your father is ill.”

Labriut!

Pirkei D’Rabbi Eliezerch. 52 (cited in R. Akiva Eiger’s great Gilyon HaShas to Berachot 53a) gives the following graphic description of what used to happen:

“From the time of creation until Ya’akov’s time, no person would take ill prior to his death. Indeed, illness as such did not exist at all, and there was no warning of a person’s imminent demise. Rather, a person could be walking on the road or in the marketplace, and all of a sudden he would sneeze and his soul would exit via his nostrils. A sneeze was thus the precursor of death. Until Ya’akov Avinu came along and beseeched Hashem for mercy, praying that his soul would not depart suddenly from this world so that he would have time to instruct his sons before his passing. Hashem granted his request and from then on, people would take ill prior to their death.

Therefore, when a person sneezes, it is customary for others to respond ‘Chayim’(‘Life’ or ‘Health’ - the equivalent of our [God] bless you!), in recognition of the fact that the sneeze is no longer a sign of impending death, but has been transformed into a source of life and light, as it says (Iyov 41:10): ‘His sneezings[2] flash forth light.”

The concept of the ‘terminally ill person’ was thus an innovation in the time of Ya’akov Avinu. And from that time on, the subject has become one of the most difficult, sophisticated and loaded issues in the field of legal and medical ethics, as well as in Halacha.

The Terri Schaivo case

Theresa Marie “Terri” Schiavo (December 3 , 1963 - March 31 , 2005 ), from Florida , United States , was a brain damaged patient who was dependent on feeding tube. She collapsed in her home on February 25 , 1990 and experienced respiratory and cardiac arrest , leading to 15 years of institutionalization and a diagnosis of persistent vegetative state (PVS). In 1998 , Michael Schiavo , her husband and guardian, petitioned the Pinellas County Circuit Court to remove her feeding tube. Robert and Mary Schindler, her parents, opposed this, arguing she was conscious . The court determined that Terri would not wish to continue life-prolonging measures. The battle stretched on for seven years and included involvement by politicians and advocacy groups . Before the court’s decision was carried out, on March 18 , 2005 , the Florida Legislature and United States Congress had passed laws, signed by the Governor of Florida and President of the United States , respectively, that were designed to prevent removal of Schiavo’s feeding tube. These laws were overturned by the supreme courts of Florida and the United States . These events resulted in extensive national and international media coverage.

By March 2005, the legal history around the Schiavo case included fourteen appeals and numerous motions, petitions, and hearings in the Florida courts, and five suits in Federal District Court . Terri died at a Pinellas Park hospice on March 31 , 2005 , at the age of 41.

Opinions about the Terri Schaivo case abound, but hardly anyone would argue that it was a tragedy. A tragedy for her parents and other family members who believed - correctly or not - that she had a chance of recovery. Certainly her husband is a tragic figure, attempting as he did to enforce what he believed to have been his wife’s wishes - in the face of international controversy. The easiest course for him would have been to divorce Terri and leave her in the care of her parents, but instead he labored for 15 years to bring her the rest he believed she would have wanted.

If we are to believe her doctors, the least tragic figure in the drama was Terri herself. All the qualified physicians who examined her agreed that the cerebral cortex where thinking and cognition occur was not functioning due to the oxygen deprivation when her heart stopped 15 years earlier, and that only the portions of the “lower brain” that required less oxygen survived. Perhaps the biggest tragedy of all, then, was that Terri knew nothing of the controversy and could know nothing.

How can one avoid the agony visited on the Schiavos and their families? The way to do it is to make it both clear and legal, in writing and in front of competent witnesses, what our desires are in the event we too are enmeshed in similar circumstances (the so-called ‘Living Will’). If Terri had done that, instead of communicating only verbally with her husband, 15 years of agony could have been avoided.


[1] The Hebrew word Hinei (behold) - indicates something new or surprising. Cf Rashbam Ber. 25:24.

[2] Hebrew atishotav - a good example of onomatopoeia (atishu)! The spray forced through the Leviathan’s nostrils appears to flash light in the bright sun.

 

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

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Jewish Law in our Times > Terminally Ill Patients and the Right to Die - in Dignity

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moshe, 3/13/2008
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