Jewish Law in Our Times

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

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4 - The Israeli Terminally Ill Patients Law, 5766-2005 (Part III)

Prof. Avraham Steinberg presents three basic approaches, in his magnum opus, the Encyclopedia Hilchatit-Refu’it, to treatment of terminally ill patients in pain.

The first, most stringent, approach makes no distinctions between different types of patients. Every effort must be made to lengthen life. The second approach posits that if the patient asks for relief from suffering, it is permitted to refrain from administering treatment. The third approach, which Steinberg seems to accept, prohibits the active lengthening of life in cases of great pain.

Passive Euthanasia and Halacha

In the footnotes to his encyclopedia, Steinberg recounts the death of his own father. Rabbi Shlomo Zalman Aurbach, considered one of the greatest halachic authorities of the modern era, who directed him to discontinue nor-epinephrine, a drug that stabilizes blood pressure, after Steinberg's father's respiratory system and kidneys failed.

However, Steinberg adds that all the natural needs of the patient, such as food and oxygen, must be provided. Treatment such as antibiotics, that prevents complications common to non-terminally patients, must also be continued.

The Terminally Ill Patients Law, 5766-2005 and Halacha

According to Prof. Steinberg:

  • The balances that receive expression in the Terminally Ill Patients Law, 5766-2005 match the opinion of the majority of poskim on these issues. The fact that the patient has a life expectancy of less than 1 year brings him into the category of a choleh be’chayei sha’ah (terminally ill patient), whose wishes the Halacha respects, including the wish to avoid prolonging his suffering.[1]

  • All the poskim are of the opinion that doctors and others are obligated to do everything possible to save the life of a dying patient, even if the patient will only live for a brief period. Any action that results in hastening the death of a dying patient is forbidden and considered an act of murder.

  • However, most poskim consider that there is no obligation to institute life-prolonging or resuscitative treatments to prolong the suffering of a comatose patient whose situation is deemed hopeless by the doctors.

  • A significant number of the poskim consider that while the value of life is a sacrosanct and lofty value, it is not absolute. Thus, for example, certain values may exceed the value of life, such as the three aveirot for which a person is commanded to give up his life rather than transgress, or going out to battle and death by Kiddush Hashem. It is even permitted to kill a person pursuing his fellow with intent to kill him. Then there are the four forms of death prescribed for transgressing different types of aveira. Even suicide may be permitted in certain circumstances.

And the same applies in the case of an incurably ill person in severe pain, agony or distress: Halacha sanctions the removal of an impediment (a knocking noise, such as wood chopping, or salt on the patient’s tongue[2] ) which may artificially delay the patient’s demise in the final phase, provided no act is performed which hastens death, such as moving the dying person from one place to another. It is clear that if the value of life was an absolute value, not only would there be no permit to remove the life prolonging act, but it would be necessary to ensure the continuity of this act in all circumstances.

Palliative Care

The law determines that there is an obligation to provide palliative care to the terminally ill patient and his family: “The presiding doctor is obligated to do everything possible to ease the pain and suffering of the terminally ill patient, even if reasonable danger would be caused to the patient’s life, includingthrough drugs, pain killers or psychological, nursing and environmental means - all in accordance with conventional principles of palliative care, pursuant to the terms and arrangements that apply from time to time in the Israeli health care system and subject to the wishes of the terminally ill patient.” The presiding doctor is similarly enjoined “to ensure that everything possible is done for the ease of the family members of the terminally ill patient and their welfare during the period in which the patientresides in the medical institution, according to proper principles of social care and palliative care, and the conditions and arrangements that apply from time to time in the Israeli health care system.”

For the first time in Israel, and almost in the entire world, writes Steinberg[3] , an obligation has been imposed on the Health system to grant palliative care to the terminally ill patient and to members of his own family. This humanitarian requirement is compatible with both ethical and halachic principles. According to the Halacha, treatment via painkillers, such as narcotic drugs, is permitted even if there is a remote risk that the painkiller may hasten the death of the terminally ill patient, because pain and suffering come within the definition of illness, which may be dealt with like any other illness, even where there exists a degree of risk in the treatment, because of the fact that the risk is small. However, Prof. Steinberg continues, the use of painkillers is subject to the following conditions: the treatment must be given in order to ease the pain, and not to with the aim of hastening the patient’s death; the presiding doctor must be fully familiar with the methods of the treatment; the state of the patient must not be so dire to the extent that one shot of morphium could stop his breathing. Treatment with painkillers is permitted even if the patient is connected to a life-support machine.

Postscript

The new Terminally Ill Patients Law, 5766-2005 contains a unique and complex solution to an issue in public dispute in Israel and the world at large on what is an ethical, legal and halachic question. The drafters of the law invested much effort with the aim of reaching as broad a consensus as possible on all of the issues that relate to the treatment of the terminally ill patient. This effort paid off, resulting in consensus being reached by the 59-member public committee and the factions in the Knesset on all the matters relating to the overall treatment of the terminally ill patient.


[1] Here it should be noted that at the last moment Degel HaTorah MK, Moshe Gafni, attempted to weaken the bill by saying that only terminally ill patients who have 1 month or less to live, instead of the stipulated 6 months, could be covered by its provisions, but his view was rejected.

[2] Rema on Shulchan Aruch, Yoreh Deah 339.

[3] Israeli Ministry of Justice Parshat HaShavua web sheet, “And Joseph was told: Behold your father is ill - Terminally Ill Patients,” Veyechi 5766, No. 238.

 

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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