The Holy One, blessed be He, does not smite Israel unless He has previously created a cure for them.
MEGILLAH 13b
In Jewish law and moral teaching the value of human life is supreme and takes precedence over virtually all other considerations. This attitude is most eloquently summed up in a talmudic passage regarding the creation of Adam: "Therefore only a single human being was created in the world, to teach that if any person has caused a single soul of Israel to perish, Scripture regards him as if he had caused an entire world to perish; and if any human being saves a single soul of Israel,1The phrase “of Israel” is omitted in the Palestinian Talmud and in the Munich MS of the Babylonian Talmud. Scripture regards him as if he had saved an entire world" (Sanhedrin 37a). Human life is not a good to be preserved as a condition of other values but an absolute, basic, and precious good in its own right. The obligation to preserve life is commensurately all-encompassing.
The obligation to save the life of an endangered person is derived by the Talmud from the verse "Neither shall you stand idly by the blood of your neighbor" (Lev. 19:16). The Talmud and the various codes of Jewish law offer specific examples of situations in which a moral obligation exists with regard to rendering aid. These include the rescue of a person drowning in a river, assistance to one being mauled by wild beasts and aid to a person under attack by bandits.
The application of this principle to medical intervention for the purposes of preserving life is not without theological and philosophical difficulties. It is to be anticipated that a theology which ascribes providential concern to the Deity will view sickness as part of the divine scheme. A personal God does not allow His creatures, over whom He exercises providential guardianship, to become ill unless the affliction is divinely ordained as a means of punishment, for purposes of expiation of sin or for some other beneficial purpose entirely comprehensible to the Deity, if not to man. Thus, while the ancient Greeks regarded illness as a curse and the sick as inferior persons because, to them, malady represented the disruption of the harmony of the body which is synonymous with health, in Christianity suffering was deemed to be a manifestation of divine grace because it effected purification of the afflicted and served as an ennobling process. Since illness resulted in a state of enhanced spiritual perfection, the sick man was viewed by early Christianity as marked by divine favor.
Human intervention in causing or speeding the therapeutic process is, then, in a sense, interference with the deliberate design of providence. The patient, in seeking medical attention, may be seen as betraying a lack of faith in failing to put his trust in God. This attitude is reflected in the teaching of a number of early and medieval Christian theologians who counseled against seeking medical attention. The Karaites, in turn, rejected all forms of human healing and relied entirely upon prayer. Consistent with their fundamentalist orientation, they based their position upon a quite literal reading of Exodus 15:26. A literal translation of the Hebrew text of the passage reads as follows: "I will put none of the diseases upon you which I have put upon the Egyptians, for I am the Lord your physician." Hence, the Karaites taught that God alone should be sought as physician.
This view was rejected by Rabbinic Judaism, but not without due recognition of the cogency of the theological argument upon which it is based. Rabbinic teaching recognized that intervention for the purpose of thwarting the natural course of a disease could be sanctioned only on the basis of specific divine dispensation. Such license is found, on the basis of talmudic exegesis, in the scriptural passage dealing with compensation for personal injury: "And if men quarrel with one another and one smites the other with a stone or with the fist and he die not, but has to keep in bed … he must pay the loss entailed by absence from work and he shall cause him to be thoroughly healed" (Exod. 21:18–19). Ostensibly, this passage refers simply to the financial liability incurred as the result of an act of assault. However, since specific reference is made to liability for medical expenses, it follows that liability for such expenses implies biblical license to incur those expenses in the course of seeking the ministrations of a practitioner of the healing arts. Thus the Talmud, Baba Kamma 85a, comments, "From here [it is derived] that the physician is granted permission to cure." Specific authorization is required, comments Rashi, in order to teach us that "we are not to say, 'How is it that God smites and man heals?' " In much the same vein Tosafot and R. Solomon ben Adret, in their commentaries upon this passage, state that without such sanction, "He who heals might appear as if he invalidated a divine decree."
Nontherapeutic life-saving intervention is talmudically mandated on independent grounds. The Talmud, Sanhedrin 73a, posits an obligation to rescue a neighbor from danger, such as drowning or being mauled by an animal. This obligation is predicated upon the scriptural exhortation with regard to the restoration of lost property, "And you shall return it to him" (Deut. 22:2). On the basis of a pleonasm in the Hebrew text, the Talmud declares that this verse includes an obligation to restore a fellow man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Noteworthy is the fact that Maimonides,2Commentary on the Mishnah, Nedarim 4:4. Cf. Mishneh Torah, Hilkhot Nedarim 6:8. going beyond the examples supplied by the Talmud, posits this source as the basis of the obligation to render medical care. Maimonides declares that the biblical commandment "And you shall return it to him" establishes an obligation requiring the physician to render professional services in life-threatening situations. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property. Maimonides views this as a binding religious obligation.
Noteworthy is not only Maimonides' extension of this concept to cover medical matters but also his failure to allude at all to the verse "and he shall cause him to be thoroughly healed." It would appear that Maimonides is of the opinion that without the granting of specific permission one would not be permitted to tamper with physiological processes; obligations derived from Deuteronomy 22:2 would he limited to the prevention of accident or assault by man or beast. The dispensation to intervene in the natural order is derived from Exodus 21:20; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation.3Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Exod. 21:19 and Deut. 22:2. Cf., also, R. Abraham Danzig, Ḥokhmat Adam, 141:25. As indicated by Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance, as is the case with regard to the restoration of lost property, but, by virtue of the negative commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving life of one's fellow man. This seems to have been the interpretation given to Maimonides' comments by R. Joseph Karo, who, in his code of Jewish law, combined both concepts in stating: "The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if the physician withholds his service it is considered as shedding blood."4Yoreh De‘ah 36:1. See R. Eliezer Waldenberg, Ramat Raḥel, no. 21, and idem, Ẓiẓ Eli‘ezer, X, no. 25, chap. 7.
Nachmanides finds that since the Torah gives permission to seek medical attention the physician's obligation to heal must also be deemed to be inherent in the commandment "And you shall love your neighbor as yourself" (Lev. 19:18).5Torat ha-Adam, Kitvei Ramban, ed. Bernard Chavel (Jerusalem, 5724), II, 43. The obligation to heal the sick is an instantiation of the general obligation to manifest love and concern for one's neighbor. As such, the obligation to heal encompasses not only situations posing a threat to life or limb or demanding restoration of impaired health but also situations of lesser gravity warranting medical attention for relief of pain and promotion of well-being.
Nevertheless, in the absence of specific scriptural license to practice the healing arts, Jews would be forbidden to seek the therapeutic benefits of medical science. Accordingly, despite the serious nature of the halakhic imperative with regard to the preservation of life and health, it is not surprising that this imperative is somewhat circumscribed insofar as the practice of medicine is concerned. The limitations, few as they are, serve as a reminder that all healing comes from God.
Sterilization of Women
The halakhic implications of the sterilization of women are the subject of a brief monograph authored by Dayan Grossnass of London which has appeared as number 21 in a series of such responsa published by the London Bet Din and has been reprinted in three sections in the Shevat, Adar and Nisan 5732 issues of Ha-Pardes. The parents of a mentally incompetent daughter approached Dayan Grossnass with a particularly agonizing problem. Because of her mental condition the young woman in question was repeatedly subjected to sexual abuse and was ultimately found to be pregnant. Although the pregnancy did not pose a danger to her life, medical authorities deemed the pregnancy to be detrimental to her physical health. The parents sought a halakhic ruling with regard to the permissibility of surgical sterilization in order to prevent further pregnancies. Dayan Grossnass rules that an abortion cannot be sanctioned but that, under the circumstances, sterilization is permissible.
The Gemara, Shabbat 110b, derives the prohibition against castration of both male human beings and male animals from the verse "And that which is mauled or crushed or tom or cut you shall not offer unto the Lord; nor should you do this in your land" (Lev. 22:24). This verse is understood by the Gemara as having reference to the male sexual organs and hence the latter part of the verse constitutes a prohibition against emasculation. Tosafot and Rashba, in their commentaries on Shabbat 111a, indicate that this prohibition is limited to the removal of male sexual organs, and there exists no biblical prohibition with regard to the sterilization of a female. The terminology employed by Rambam, Issurei Bi'ah 16:11, and Shulḥan Arukh, Even haEzer 5:11, would seem to indicate that the position of the latter authorities is that surgical sterilization of women, while not an actionable offense, is nevertheless biblically proscribed. Although the reference in Leviticus 22:24 is limited to external male organs, R. Elijah of Vilna, Bi'ur ha-Gra, Even ha-Ezer 5:25–26, cites Sifra in explaining that the ban against the removal of the internal female sexual organs is derived from the formulation employed in the very next verse, Leviticus 22:25. Nevertheless, other authorities, including Hatam Sofer, Even ha-Ezer 5:22, maintain that, even according to Rambam, the prohibition against the sterilization of females is rabbinic in nature. Turei Zahav, Even ha-Ezer 5:6, goes beyond the position of other authorities in averring that there is no prohibition with regard to female sterilization per se, but that it is nonetheless forbidden to subject female animals to this procedure because of the general prohibition against causing pain to animals. Similarly, nontherapeutic sterilization of women would constitute an unlawful act of "wounding"—ḥavalah.
In the case at hand, Dayan Grossnass rules that the woman may be sterilized but stipulates that the surgical procedure should be performed by a non-Jewish medical practitioner. Shulḥan Arukh, Even haEzer 5:11, expressly declares that a non-Jew may not be requested to castrate an animal belonging to a Jew. Nevertheless, Dayan Grossnass permits sterilization to be performed by a non-Jewish physician in order to preserve the health of the woman. Dayan Grossnass asserts that all rabbinic prohibitions are suspended with regard to matters affecting human health even if no threat to life is involved. Employing this principle, he argues that according to those authorities who maintain that female sterilization is banned only by reason of rabbinic edict, the procedure in question could be performed even by a Jewish physician. There are indeed numerous authorities who are of the opinion that the sterilization of women is forbidden by biblical law. However even those rabbinic scholars who maintain that the sterilization of women is itself biblically forbidden recognize that the prohibition against requesting a non-Jew to perform the action in question is rabbinic in nature. Hence, concludes Dayan Grossnass, even if the ban against requesting a non-Jew to perform sterilization encompasses the sterilization of females, which is itself a matter of some doubt, the prohibition is suspended if the procedure is indicated for therapeutic reasons. Accordingly, Dayan Grossnass rules that a non-Jewish surgeon may be engaged to render this service.
According to Dayan Grossnass' analysis of the case at hand, sterilization may be performed by a non-Jewish surgeon because future pregnancy would be injurious to the health of the young woman in question; the woman's mental incompetence is not a significant factor in the halakhic reasoning which leads to this ruling. It is instructive to compare this recent decision with an earlier ruling recorded by Rabbi Moses Feinstein, Iggrot Mosheh, Oraḥ Hayyim, II, no. 88. Rabbi Feinstein discusses a closely related situation and arrives at a somewhat different position. Rabbi Feinstein, disagreeing with the view stated by Dayan Grossnass, contends that not all rabbinic prohibitions are suspended for reasons of health.6The identical point is also made by Rabbi Feinstein in Iggrot Mosheh, Even ha-Ezer, I, no. 13. While Rabbi Feinstein does not cite a source, this position is clearly espoused by Teshuvot ha-Rashba Meyuḥasot le-ha-Ramban, no. 127. See also Teshuvot R. Akiva Eger, no. 5. Cf. Divrei Ḥayyim, Yoreh De‘ah, II, no. 62; Maharam Schick, Yoreh De‘ah, no. 173; Teshuvot Sho’el u-Meshiv, I, no. 210; and R. Eliyahu Klatzkin, Dvar Eliyahu, no. 17. Hence, even according to those authorities who maintain that the prohibition against the sterilization of a female is rabbinic in nature, sterilization for therapeutic purposes cannot be sanctioned unless pregnancy poses a threat to the life of the mother. In the case brought before Rabbi Feinstein it was the mentally incompetent woman who initiated acts of sexual misconduct. Rabbi Feinstein asserts that promiscuous conduct on the part of the woman does constitute grounds for sanctioning sterilization because promiscuity constitutes a more serious offense than sterilization. As such, sterilization may be countenanced as the lesser of two evils. Of the two, sterilization is the less serious infraction because sterilization of women carries no statutory punishment. However, as noted earlier, any nontherapeutic surgical procedure entails an act of unlawful "wounding." The latter infraction does carry with it a statutory punishment and hence may not be suspended in order to obviate sexual promiscuity. Rabbi Feinstein permitted sterilization in the case brought to his attention only because pregnancy would also have been injurious to the health of the woman. The prohibition against wounding does not apply to situations in which a therapeutic purpose is served. Although the prohibition against wounding may not be violated if prevention of promiscuity is the sole justification, such sterilization may be performed if there is a therapeutic purpose served as well. Rabbi Feinstein adds that even under such circumstances sterilization should be performed by a non-Jewish physician.
Although Rabbi Feinstein does not spell out the medical details, his responsum is obviously predicated upon the premise that the mode of sterilization to be employed is expected to reduce the desire for sexual gratification, thereby eliminating or reducing the likelihood of sexual advances on the part of the mentally incompetent woman. While there is evidence demonstrating that this effect may be achieved by removal of the adrenal glands, there is no medical evidence that sterilization lessens the sexual drive in women.7See Aleck Bourne, “Gynaecology,” in British Obstetric and Gynaecological Practice, ed. Aleck Bourne and Sir Andrew Claye, 3rd ed. (London, 1963), p. 883.
It may be noted that in responding to a query involving a situation in which the sole consideration was mental incompetence of the pregnant woman, Rabbi Yechiel Ya'akov Weinberg, Seridei Esh, III, Even ha-Ezer, no. 21, while not issuing a definitive decision, wrote, "It is possible to say that a woman may undergo sterilization" if pregnancy were to be accompanied by inordinate difficulties.
Transsexual Surgery
Transsexuals are persons who are born with the anatomy of one sex but suffer from an identification with the other sex which in many instances is total and lifelong. It is claimed by some scientists doing research in this area that this abnormality is the result of hormone disturbances which are quite likely prenatal in origin. In a rapidly increasing number of cases transsexualism is now being treated medically by a combination of hormone therapy and sex-change surgery. While such operations were performed in Europe on an intermittent basis as early as 1930, sex-change operations have become prevalent in our country only since the late 1960s. There are an estimated ten thousand transsexuals in the United States, of whom approximately fifteen hundred have changed their sex by means of surgery. Public awareness of this phenomenon has been heightened by the recent publication of Conundrum, an autobiography by Jan (formerly James) Morris, in which the author discusses his own transsexualism with skill and sensitivity.
The growing acceptance of transsexual surgery has made the question of sex-change a topical halakhic issue. A number of rather cursory items dealing with this topic, which are noteworthy primarily on account of the sources cited, have appeared in the 5733 volume of No'am and in the Kislev-Tevet and Tammuz-Av 5733 issues of Ha-Ma'or. These articles do not treat the unique halakhic problems of hermaphrodites or of individuals born with ambiguous genitalia.
Sex-change operations involving the surgical removal of sexual organs are clearly forbidden on the basis of the explicit biblical prohibition, "And that which is mauled or crushed or torn or cut you shall not offer unto the Lord; nor should you do this in your land" (Lev. 22:24). Sterilization of women is also prohibited, as recorded in Even ha-Ezer 5:11.
Rabbi Meir Amsel (Ha-Ma'or, Kislev-Tevet 5733) notes that yet another prohibition is also applicable to sex-change procedures, a consideration which may extend as well to hormone treatment for purposes of sex-change. The commandment "A woman shall not wear that which pertains to a man, nor shall a man put on a woman's garment" (Deut. 22:5) is not limited to the wearing of apparel associated with the opposite sex but encompasses any action uniquely identified with the opposite sex, proscribing, for example, shaving of armpits or dyeing of hair by a male. A procedure designed to transform sexual characteristics violates the very essence of this prohibition.
Once a sexual transformation has actually been effected, a host of practical halakhic questions arise. The resolution of these questions hinges upon the crucial conceptual problem of whether or not a change of sex has indeed occurred from the point of view of Halakhah. It should be emphasized that while sexual organs can be removed, medical science is (at least as yet) incapable of substituting functional reproductive organs of the opposite sex. Sex-change procedures involve the construction of simulated sexual organs devoid of reproductive powers.
The most obvious halakhic questions concern the sexual status of such individuals with regard to marriage and divorce and with regard to their status vis-à-vis the respective obligations of men and women in the performance of mizvot. A related question is discussed by Teshuvot Besamim Rosh, a work of questionable authenticity commonly attributed to Rabbenu Asher. Besamim Rosh, no. 340, questions whether a man whose genitalia have been completely removed need divorce his wife in order to dissolve their marriage or whether a divorce is unnecessary since the male has been sexually transformed, and hence "a new body has appeared and is comparable to a woman's." Besamim Rosh reaches no definitive conclusion with regard to whether or not a divorce is necessary in the event that the operation is performed subsequent to entry into a valid marriage. However, Besamim Rosh strongly asserts that, regardless of an individual's sexual status with regard to other matters, once the male sexual organs have been removed the person in question is no longer competent to contract a valid marriage as a man.8R. Aryeh Leib Grossnass, Lev Aryeh, II, no. 49, takes exception to both the reasoning and the ruling of Besamim Rosh. R. Grossnass does, however, express doubt with regard to the necessity for a bill of divorce on the basis of Minḥat Ḥinukh, no. 203, but contends that for all other purposes, transsexual surgery has no effect upon sexual identity insofar as Halakhah is concerned. Although not stated explicitly, it may be assumed, according to Besamim Rosh, that such a person is also unqualified to contract a marriage as a woman since true female genital organs remain absent even subsequent to successful completion of the surgical procedure.
For Besamim Rosh sexual identity, insofar as marriage is concerned, depends entirely upon the presence of genital organs. No mention is made of the presence or absence of secondary sexual characteristics and indeed it is not difficult to understand why they are deemed irrelevant. Hence, despite the comments of Rabbi Amsel, who asserts that secondary sexual characteristics play a role in sexual identification, there is no evidence that the transformation of secondary sexual characteristics affects sexual status in any way.
One contemporary authority has ruled, without citing the ambivalent attitude of Besamim Rosh, that no divorce is necessary in order to permit the remarriage of a woman whose husband has undergone a sex-change operation. Rabbi Eliezer Waldenberg, Ẓiz Eli'ezer, X, no. 25, chap. 26, sec. 6, argues that if the person in question can no longer contract a marriage as a male (as indeed is the stated position of Besamim Rosh), the emergence of such a condition automatically terminates any existing marriage. The Gemara, Yevamot 49b, declares that although a husband is obliged to divorce an adulterous wife and is not permitted to remarry her, nevertheless, should he subsequently enter into such a marriage, the marriage is, post factum, deemed valid and must be dissolved by means of a divorce. Rashi and Nemukei Yosef, ad locum, explain that the marriage, when contracted, must be deemed valid, as evidenced by the fact that the original marriage is not automatically terminated upon the commission of adultery by the wife. The clear inference is that if Halakhah recognizes the continued existence of a previously contracted marriage despite a change in pertinent circumstances, a newly contracted marriage under the same circumstances is also valid. Conversely, if under the new circumstances a marriage cannot be contracted, it follows that an already existing marriage must be deemed to have been terminated automatically upon emergence of the new situation.9This argument was originally advanced by Minḥat Ḥinukh, no. 203, in explanation of an intriguing position taken by Terumat ha-Deshen, no. 102. Terumat ha-Deshen questions whether the wife of the prophet Elijah was permitted to remarry. According to tradition, Elijah neither died nor divorced his wife but ascended to heaven bodily. Terumat ha-Deshen rules that Scripture forbids man to cohabit with “the wife of his fellow” but does not forbid the wife of an angel. (Cf., however, R. Shlomoh Kluger, Ḥokhmat Shlomoh, Even ha-Ezer, no. 17, who differs. See also R. Elchanan Wasserman, Koveẓ Shi‘urim, II, no. 28.) Minḥat Ḥinukh explains, on the basis of the previous argument, that since an angel cannot contract a marriage, a marriage to a man who becomes an angel is automatically terminated. (For a different explanation, see Teshuvot Mahari Asad, Even ha-Ezer, no. 4. See also Lev Aryeh, II, no. 49.)
R. Waldenberg, Ẓiẓ Eli‘ezer, X, no. 25, chap. 26, sec. 6, and XI, no. 78, maintains that surgical reversal does effect a change in sexual identity in the eyes of Halakhah. He therefore argues that just as cohabitation is forbidden with the wife of his fellow but not with the wife of an angel, so also the concept of the wife of his fellow excludes the concept of the wife of a woman. Unlike Besamim Rosh, Rabbi Waldenberg is of the opinion that the surgical removal of male sexual organs effects a change in sexual identity in the eyes of Halakhah. Rabbi Waldenberg, however, cites no evidence whatsoever for this view.
There is at least one early source which apparently declares that a male cannot acquire the status of a woman by means of surgery. Rabbi Abraham Hirsch (No'am 5733) cites the comments of Rabbenu Chananel, quoted by Ibn Ezra in his commentary on Leviticus 18:22. Rabbenu Chananel declares that intercourse between a normal male and a male in whom an artificial vagina has been fashioned by means of surgery constitutes sodomy. This would appear to be the case, according to Rabbenu Chananel, even if the male genitalia were removed.10It might be argued against R. Hirsch that citation of Rabbenu Chananel is not conclusive in showing that Halakhah does not recognize reversal of sexual identity. The situation depicted by Rabbenu Chananel, after all, refers to a homosexual act with a male in whom an artificial orifice has been constructed; Rabbenu Chananel clearly does not describe a situation in which sex reversal has also been undertaken by means of removal of the male genitalia. Nevertheless, in context, the argument has not lost its cogency. If surgical changes in sexual identity are recognized for purposes of Halakhah, it would stand to reason that just as male-female changes effect a change in sexual identity, the construction of female organs, when unaccompanied by removal of male organs, should similarly be recognized as effecting a change in sexual identity from male to hermaphrodite. Rabbenu Chananel, as is evident from the text of these remarks, does not view penetration of the female organ of a hermaphrodite by a male as constituting a homosexual act (although he does allow for such a position in subsequent remarks). Yet, according to Rabbenu Chananel, intercourse via the artificially constructed vagina does constitute sodomy. This, then, indicates that the individual is regarded as a male rather than a hermaphrodite. Therefore it follows that if surgical procedures do not effect a change in status from male to hermaphrodite, such procedures cannot create a change of status from male to female in the eyes of Halakhah.
The corollary to this question arises with regard to a woman who has acquired the sexual characteristics of a male as a result of transsexual surgery. A nineteenth-century author, R. Yosef Pelaggi, Yosef et Eḥav 3:5, opines that no divorce is necessary in order to dissolve a marriage contracted prior to such transformation. This author goes beyond the position of Besamim Rosh, who, as noted, did not reach a definitive conclusion in his discussion of the parallel question with regard to sex change in a male. In opposition to R. Pelaggi's view it may, however, be argued that gender is irreversibly determined at birth and that sex, insofar as Halakhah is concerned, cannot be transformed by surgical procedures. This position is particularly cogent in view of the fact that fertile organs of the opposite sex cannot be acquired by means of surgery. The view that sexual identity cannot be changed by means of surgery would appear to be the position of Rabbenu Chananel. According to Rabbenu Chananel, this principle would appear to govern all halakhic questions pertaining to sexual identity.
Parenthetically, it is of interest to note that various courts in the United States have ruled that, in the eyes of the law, surgery to transform genitalia has no effect upon the gender of the person upon whom such procedures are performed (Anonymous v. Anonymous, 67 Misc. 2d 982; Baker v. Nelson, 291 Minn. 310, 191 N.W. 2d 185; 409 U.S. 810, 93 Supreme Court, 37; Jones v. Hallahan, Ky., 501, S.W. 2d 588). Recently, a justice of the New York State Supreme Court ruled that a woman who underwent surgery to become a man and subsequently married could not seek a divorce since a valid marriage had, in fact, never existed. The decision states that a marriage contract entered into by individuals of the same sex, one of whom has undergone sex-reversal surgery, has no validity either in fact or in law (New York Law Journal, April 30, 1974, p. 17, col. 4).
Another interesting question arises with regard to circumcision. In female-to-male transformations a simulated male organ is often created by means of skin grafts and silicone forms. In some cases this effect is achieved by freeing the clitoris from its connective tissue. There is no question that this newly fashioned organ need not be circumcised. This is abundantly clear from the conclusion reached by She'elat Ya'avez, I, no. 171, in the discussion of a similar question arising with regard to a congenital defect. Yosef et Eḥav cites the comments of Yad Ne'eman, who maintains that circumcision would be unnecessary even if the new organ were physiologically similar to that of a male in every respect. In the opinion of the latter authority, the phraseology employed by Scripture, "uncircumcised male" (Gen. 17:13), applies solely to an individual who is a male at the time of birth.
A peripheral halakhic question which arises in cases of sexual transformation concerns which of the blessings included in the morning service should be recited by an individual who has undergone a transsexual procedure. Is the person in question to recite the blessing "Who has not made me a woman" or the blessing "Who has made me in accordance with His will"? The question is a compound one involving two separate issues. The first question is identical with the issue previously discussed: Is the individual's gender deemed to have been changed or is it deemed to have remained unchanged? Secondly, assuming that surgical transformation is to be recognized as indeed having effected a transformation from the point of view of Halakhah, there exists a halakhic controversy with regard to whether the blessings to be recited each morning are determined by the individual's status at birth or by his status at the time the blessings are pronounced. This difference of opinion is reflected in the controversy with regard to the recitation of the blessing "Who has not made me a gentile" by a proselyte. Rambam maintains that since the convert was born a gentile, it follows that he cannot truthfully pronounce the blessing "Who has not made me a gentile." Rashi disagrees and maintains that the blessing is fundamentally an expression of thanksgiving for being bound by the commandments of the Torah incumbent upon members of the Jewish faith and hence may be pronounced by the proselyte, since at the time of the recitation of the blessing he is indeed a Jew and subject to all mizvot. The blessings "Who has not made me a woman" and "Who has made me in accordance with His will" reflect the differing status of men and women with regard to the performance of mizvot. Hence, if the surgical transformation effects a change in the eyes of Halakhah, the proper blessing should, according to the opinion of Rashi, reflect the changed status, whereas, according to the opinion of Rambam, the usage "Who has made" or "Who has not made" in this context would express a falsehood.
It has been suggested that the entire question may be obviated by composing a text which would be more appropriate to such situations. According to this view, the proper blessings would be "Who has transformed me into a male" and "Who has transformed me in accordance with His will." Quite apart from the unwarranted assumption regarding divine approbation implied by this phraseology, it may be objected that in the absence of any liturgical formulation pertaining to "transformation" the proposed texts do not constitute rabbinically ordained formulae and hence cannot serve as valid substitutes for statutory blessings.
Although Judaism does not sanction the reversal of sex by means of surgery, transsexualism is a disorder which should receive the fullest measure of medical and psychiatric treatment consistent with Halakhah. Transsexuals should be encouraged to undergo treatment to correct endocrine imbalances, where medically indicated, and to seek psychiatric guidance in order to alleviate the grave emotional problems which are frequently associated with this tragic condition.
Host-Mothers
Any parent who has at one time or another been exposed by his children to the captivating Dr. Seuss fantasy, Horton Hatches the Egg, will recall the dilemma around which that tale centers: to whom does the offspring rightfully belong, the irresponsible mother who abandoned it, or the faithful elephant who guarded and protected the egg over a span of months? The fictional solution may be both too facile—and too equitable—for real life. Preposterous and farfetched as the situation may appear to be the problem it poses may be upon us before long. We find ourselves in an age in which the science fiction of yesterday is rapidly becoming the reality of today; the hypothetical curiosity of today may well become the common-place of tomorrow. These unfolding realia often carry in their wake hitherto unexamined moral and religious questions. Perhaps in no area is this more evident than in the field of embryology. Recent experimental developments indicate that it may soon become possible to remove a naturally fertilized ovum from the womb of a pregnant mother and reimplant it in the uterus of another woman. The embryo would then remain in the womb of the "host-mother" throughout the period of gestation until birth.
In a statement released by his office, Rabbi Immanuel Jakobovits, Chief Rabbi of Great Britain, aptly characterizes such practices as offensive to moral sensitivities when resorted to as a convenience in order to avoid the encumbrances of pregnancy. Certainly all will agree that "to use another person as an 'incubator' and then take from her the child she carried and delivered for a fee is a revolting degradation of maternity and an affront to human dignity."
Convenience is, however, not the only conceivable motive which might prompt a procedure of this nature. Medical factors may well make it impossible for the natural mother to carry her baby to term. Would Halakhah sanction the use of a "host-mother" for the purpose of saving the fetus? If such a procedure is performed, with or without halakhic sanction, who is regarded as the mother in the eyes of Halakhah: the natural mother or the host-mother?
As yet, very little has been written on this subject, although a related question has received some attention in rabbinic literature. The 5731 edition of No'am features an extensive and wide-ranging paper by Rabbi Isaac Liebes dealing with the various halakhic questions associated with organ transplants. Inter alia Rabbi Liebes cites sources bearing upon the problems posed by ovarian transplants. The question of ovarian transplants was raised by Rabbi Yekutiel Aryeh Kamelhar in a Torah journal published in Warsaw in 1932 and was subsequently reprinted in his Ha-Talmud u-Mada'ei ha-Tevel, pp. 45–45.11See R. Yekutiel Greenwald, Kol Bo ‘al Avelut, I, chap. 3, sec. 21. Rabbi Kamelhar relates that a paper was read at a medical conference held in Chicago some twenty-one years earlier in which it was alleged that in at least one instance sterility was successfully corrected by an ovarian transplant. The ovary of a fertile woman was transplanted into the body of a previously barren woman in an attempt to enable her to become pregnant and bear children. Rabbi Kamelhar examines the question of which of the two women is to be considered the mother of the child in the eyes of Jewish law. Cases involving a donor who is a married woman pose yet another question. Is the husband of the woman receiving the transplant thereafter permitted to engage in intercouse with his wife? Is the husband who has sexual relations with a wife carrying a transplanted reproductive organ of another married woman guilty of adultery? Rabbi Kamelhar dismisses the latter question by demonstrating that the source of specific organs has no bearing upon the halakhic definition of adultery.
Furthermore, maintains Rabbi Kamelhar, a transplanted organ is deemed to have become an integral part of the body of the recipient. For this reason, the recipient of an ovarian transplant must also be considered the mother of any child subsequently conceived. Despite a lack of relevant sources dealing with human transplants Rabbi Kamelhar endeavors to establish this point by drawing upon regulations governing the classification of plants and animals. The fruits of a seedling are forbidden as orlah during the first three years following its planting. Sotah 43b declares that a seedling which is grafted to a mature tree loses its independent identity and hence the fruit of the seedling is not deemed to be orlah. The same principle, argues Rabbi Kamelhar, applies with regard to the transplantation of organs; namely, a transplanted organ acquires the identity of the recipient. A second argument is based upon laws pertaining to hybrid animals. Hullin 79a, in discussing the classification of the offspring born as a result of the interbreeding of different species, records one opinion which maintains that the identity of the male parent is to be completely disregarded in determining the species of the offspring. According to this view, since it is the mother who nurtures and sustains the embryo, it is the female parent alone who determines the species of the offspring. It is thus the identity of the mother which is transferred to members of an inter-species. There is, however, a conflicting opinion which asserts that "the father's seed is to be considered." Rabbi Kamelhar asserts that even proponents of this latter view will concede that with regard to ovarian transplants the identity of the donor need not be considered in establishing maternity. "The father's seed is to be considered" because the father plays a dynamic role in the birth of the offspring. The ovary alone, Rabbi Kamelhar points out, is an inert organ and incapable of reproduction were it not for the physiological contributions of the recipient. In conclusion, Rabbi Kamelhar notes that Rabbi Meir Arak, one of the foremost halakhists of the day, accepted the cogency of this argument.12See also R. Binyamin Aryeh Weiss, Even Yekarah, III, no. 29; Teshuvot Rabaz, Even ha-Ezer, no. 5; R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, VII, no. 48, chap. 5, sec. 16; R. Yeshayahu Silverstein and R. Eliezer Deutsch, Tel Talpiot, 5668; R. Menasheh Klein, Mishneh Halakhot, IV, no. 249; and R. Yosef Schwartz, Va-Yelaket Yosef, nos. 22, 32, 54 and 77.
To a significant degree, the identical argumentation may be applied in determining the maternity of a child born of a fertilized ovum implanted in the womb of a host-mother. It is the host-mother who nurtures the embryo and sustains gestation. However, the role of the natural mother in the determination of identity is a dynamic one and analagous to that of "the seed of the father." It may therefore be argued according to those who assert with reference to the classification of hybrids that "the seed of the father is to be considered" that, in the case of an already fertilized ovum, the maternal relationship between the child and the donor mother is to be "considered" no less than "the seed of the father." Consideration must also be given to the possibility that perhaps two maternal relationships may exist simultaneously, just as maternal and paternal relationships exist at one and the same time. The child would then, in effect, have two "mothers," the donor-mother and the host-mother.
According to some authorities, however, the donor-mother alone may be viewed as the mother in the eyes of Jewish law. There are those who maintain that the prohibition against feticide is applicable from the moment of conception and deem the fetus to be a nascent human being even in the the earliest stages of gestation. According to this view, the zygote may perhaps be viewed as having already acquired identity and parentage.
The discussion thus far applies only to the transplantation of a fertilized ovum removed shortly after conception. Transplantation of an embryo in later stages of development presents a rather different question. What has preceded is based upon fragmentary sources and is but one aspect of a topic whose many ramifications have yet to be examined. There is indeed a great need for such examination and analysis for the transformations which may soon be wrought by scientific advances in this field touch upon the very foundations of the sanctity of the family.
Tay-Sachs Disease
Only recently has the general Jewish community become aware of the existence of a genetic disorder, Tay-Sachs disease, having a high incidence of Jewish victims. Tay-Sachs disease is a fatal, inherited condition. A child afflicted with this disorder appears normal at birth and may develop normally until five or six months of age. At that point normal development of the nervous system ceases. Over the next few months the infant gradually loses the ability to sit and in time becomes unable to hold up his head. As physical deterioration progresses, the child becomes blind, becomes subject to frequent convulsive seizures, loses the ability to swallow food and its limbs become stiff. Death usually occurs in the third or fourth year of life.
Although there are clinical descriptions of this disorder dating back to 1881, an explanation of the nature of this mysterious disease was not found until 1969. Medical research has discovered that the disease is caused by the absence of an enzyme which normally assists in the breakdown of fatty substances known as gangliosides. The missing enzyme is hexosaminidase A (HEX A). Since the requisite enzyme is absent these gangliosides accumulate in the cells and tissue of the affected Tay-Sachs child and ultimately lead to the destruction of brain cells.
Tay-Sachs disease is caused by a genetic mutation. The disease appears only in a child who has inherited a pair of genes both of which are defective. One of the pair is inherited from the mother; the other from the father. The parents, each the carrier of a defective gene which may be transmitted to their offspring, are themselves perfectly normal both physically and mentally.
Diseases resulting from genetic mutation are often limited to specific ethnic groups. Tay-Sachs is such a disease and is prevalent among children of Ashkenazic Jews. On the other hand, phenylketonuria, a defective gene common among white gentiles, is very rare among Jews. Similarly, sicklecell anemia is prevalent among Negroes. The carrier-rate of Tay-Sachs disease among Jews of Central and East European ancestry is believed to be about one person in thirty. Since both persons must be carriers for the child to be affected it may be assumed that statistically one in nine hundred Jewish couples may have a Tay-Sachs child. Should two such people marry and have children the risk that they will have an infant afflicted with Tay-Sachs disease is one in four with each pregnancy. This is so because each normal parent possesses two genes, one of which is normal, the other defective. The child inherits only one of these genes, giving him a fifty percent chance of inheriting the abnormal gene from each of his parents. If a defective gene is inherited from one parent but a normal gene from the other the child will be normal. The statistical probability of his inheriting two defective genes, one from each parent, is 1/2 x 1/2, or 1/4. Since one individual in thirty is a carrier, one in thirty-six hundred babies (1/30 x 1/30 x 1/4) will be a victim of Tay-Sachs disease. In the non-Jewish population only one individual in three hundred is a carrier. Hence statistically only one marriage in ninety-thousand is between two carriers and only one baby in 360,000 is a victim of Tay-Sachs disease.
During the past several years medical science has discovered ways of identifying potential victims, and medical centers in a number of cities, notably Johns Hopkins University in Baltimore, Montreal Children's Hospital and the Hospital for Sick Children in Toronto, have initiated large-scale campaigns in a massive attempt to eliminate the disease. A carrier can be identified by means of a simple blood test. The enzyme responsible for the condition normally leaks from cells into the circulating plasma. The absence of this enzyme in the plasma indicates that the individual is a carrier. The absence of the enzyme can also be detected in cells shed from skin of the fetus into the amniotic fluid. It is thus possible to make a diagnosis of an affected fetus in-utero by means of amniocentesis, which involves tapping the amniotic fluid in the uterus and examination of fetal cells.
Physicians in the above-mentioned communities now urgently recommend that rabbis refer prospective brides and grooms to a local testing center so that a blood test may be performed in order to identify carriers of Tay-Sachs disease. As a result of the test the following recommendations are made by the medical personnel involved:
1. If the screening test for the carrier state is positive in only one member of the couple no danger exists with regard to the offspring of that marriage. Such individuals are counseled with regard to the significance of the mutation and are urged to have their own offspring tested for future reference and counseling.
2. If both members of the couple are carriers:
3. a) The couple is warned that the risks of bearing a Tay-Sachs child are one in four with each pregnancy.
4. b) The couple are counseled with regard to the alternatives to having their own natural children.
5. c) They are admonished that should they proceed to have their own children, fetal monitoring should be undertaken. If a Tay-Sachs fetus is identified the common medical practice is to recommend an abortion.
The elimination of Tay-Sachs disease is, of course, a goal to which all concerned individuals subscribe. However, the means by which this desideratum is to be attained require halakhic review, all the more so because the active participation of the rabbinate has been solicited by concerned medical authorities. An article by the present writer, outlining the halakhic ramifications of the testing program, appears in the Tammuz 5732 issue of Or ha-Mizraḥ.
The obligation with regard to procreation is not suspended simply because of the statistical probability that some children of the union may be deformed or abnormal. While the couple may quite properly be counseled with regard to the risks of having a Tay-Sachs child, it should be stressed that failure to bear natural children is not a halakhically viable alternative.12aSee Iggrot Mosheh, Even ha-Ezer, no. 62.
Of at least equal, if not graver, concern is the proposal that fetal monitoring be performed with a view toward termination of the pregnancy if the fetus be identified as a victim of Tay-Sachs disease.
The fear that a child may be born physically malformed or mentally deficient does not in itself justify recourse to abortion. At present amniocentesis cannot be performed prior to the fourth or fifth month of pregnancy. Most rabbinic decisors agree that at so late a stage in pregnancy abortion is permissible only if continuation of pregnancy constitutes a threat to the life or, according to many, to the health of the mother. 12bSee below, p. 346, n. 42. In situations where amniocentesis is performed for purposes of diagnosing a condition for which a medical remedy is available, e.g., blood-group incompatibility which can be treated by exchange transfusion, the physician is not only permitted but is obligated to perform amniocentesis, even repeatedly. However, amniocentesis carried out solely for the purpose of diagnosing severe genetic defects, such as Tay-Sachs disease, serves no therapeutic purpose. Since the sole available medical remedy following diagnosis of severe genetic defects is the abortion of the fetus, which is not sanctioned by Halakhah in such instances, amniocentesis, under these conditions, does not serve as an aid in treatment of the patient and is not halakhically permissible. Initiation of this procedure in the absence of a therapeutic goal poses a pointless medical risk to both mother and fetus and also constitutes an act of ḥavalah—an unwarranted assault upon the mother.
Blood-testing programs as a screening method for the identification of carriers of Tay-Sachs disease are certainly to be encouraged. However, sensitivity to the dictates of Halakhah, which precludes both abortion and a sterile union, would indicate that the most propitious time for such screening is childhood or early adolescence.12cPossible psychological consequences of carrier identification are discussed by E. Beck, S. Blaichman and C. R. Scriver, “Advocacy and Compliance in Genetic Screening,” New England Journal of Medicine 291: 1166–1170, 1974; M. M. Kaback, R. S. Zeiger, L. W. Reynolds et al, “Tay-Sachs Disease: A Model for the Control of Recessive Genetic Disorders,” Proceedings of the Fourth International Conference, Vienna, Austria, Sept. 2-8, 1973 and Excerpta Medica, 1974, pp. 248–262; M. D. Kuhr, “Doubtful Benefits of Tay-Sachs Screening,” New England Journal of Medicine 292: 371, 1975; and by L. Schneck, A Saifer and B. W. Volk, “Benefits of Tay-Sacks Screening” New England Journal of Medicine 292: 758, 1975. Early awareness of a carrier state, particularly when determination can be made on mass scale and accompanied by a public-information campaign, would contribute greatly to alleviating the gravity of the situation.
Tay-Sachs Re-examined
The Falk-Schlesinger Institute of Jerusalem's Sha'arei Zedek Hospital has for the past several years sponsored the publication of Assia, a journal devoted to topics of medical halakhah. The Adar 5736 issue of this periodical contains an important responsum authored by Rabbi Eliezer Waldenberg dealing with the grave and emotion-laden question of abortion of a Tay-Sachs fetus.
Until very recently virtually all rabbinic authorities who have addressed themselves to the question of the permissibility of destroying a defective fetus have ruled that the presence of physical or mental abnormality does not, in itself, constitute sufficient halakhic grounds for sanctioning termination of pregnancy. Heretofore the most lenient opinion given serious consideration in rabbinic circles has been that of R. Eliezer Waldenberg, whose views are recorded in Ẓiz Eli'ezer, IX, no. 51, ch. 3. In that work Rabbi Waldenberg rules that abnormality of the fetus is sufficient justification for termination of pregnancy within the first trimester provided there is as yet no fetal movement. While this ruling is significant in the case of an expectant mother who has contracted rubella, it has little practical application with regard to termination of a pregnancy in which the fetus is afflicted by Tay-Sachs disease or by some other genetic abnormality. The presence in the fetus of Tay-Sachs disease, or of any of some seventy-odd other genetic disorders, can be diagnosed only by amniocentesis which, at present, can be performed no earlier than the fourth or fifth month of pregnancy. According to the opinion recorded in Ẓiz Eli'ezer abortion cannot be performed at such an advanced state of gestation.
Rabbi Waldenberg's decision is based upon the configuration of several considerations: 1) the view that there is no prohibition against destruction of a fetus during the first trimester of pregnancy; 2) the view of R. Joseph Trani, Teshuvot Maharit, I, nos. 97 and 99, who states that feticide is forbidden as an act of "wounding" and, accordingly, is permitted for any therapeutic purpose; and 3) the position of R. Ya'akov Emden, She'elat Ya'avez, no. 43, who sanctions abortion in cases of "grave necessity." 12dThese positions are discussed in greater detail in Part II, chap. XV, “Abortion in Halakhic Literature,” pp. 336–339, 341 and 354–356. It should be noted that Teshuvot Binyan David, no. 60, regards Maharit as permitting an abortion only when the mother’s life is in danger. See below, p. 356, n. 61.
R. Emden's thesis is based upon two novel concepts. In disagreement with most other authorities, R. Emden (following Havot Ya'ir, no. 31) espouses the view that feticide is proscribed because it is a form of "destruction of the seed." Destruction of the seed is prohibited as being tantamount to onanism which, in turn, is defined as emission of the seed "for no purpose." The term "for no purpose" is usually understood as restricting every emission of semen with the exception of ejaculation for purposes of procreation or, more broadly, any ejaculation which occurs in the context of natural intercourse. R. Ya'akov Emden, however, defines the term "le-vatalah—for no purpose" quite literally. According to this view, any ejaculation which serves a useful and licit purpose is not "le-vatalah." Accordingly, R. Emden rules that, since feticide involves only the "destruction of the seed," the fetus may be destroyed if there exists a "grave need" to do so. The presence of a "grave need" renders the act purposeful and hence not "le-vatalah." On these grounds R. Emden permits the destruction of a bastard fetus. R. Emden takes cognizance of the pain and anguish of the mother which is attendant upon a pregnancy of this nature and asserts that relief of such anguish constitutes a "grave need." In a similar fashion Rabbi Waldenberg recognizes that the difficulties engendered by the birth of an abnormal child may render abortion a grave necessity.
Rabbi Waldenberg is, however, aware that the vast majority of rabbinic decisors are in disagreement with this view.12eSee below, p. 346 and p. 367. Accordingly, he rules that this opinion may be relied upon only during the first three months of pregnancy during which time there are other grounds for leniency. The distinction between the first trimester of pregnancy and subsequent stages of gestation is cited by Rabbi Waldenberg in the name of Pri ha-Sadeh, IV, no. 50. That authority, in turn, attributes the distinction to Havot Ya'ir. Elsewhere, this writer has noted that this distinction was made by Havot Ya'ir only as a hypothetical distinction which must be rejected for lack of substantiation.12fSee below, p. 340, n. 31 and p. 346, n. 41. Havot Ya'ir concludes his prefatory remarks with the statement that it is not his goal to adjudicate such matters on the basis of "inclination of the mind or reasoning of the stomach" but rather on the basis of "law of the Torah." Havot Ya'ir thus dismisses the possibility of any distinction between various stages of pregnancy as being without precedent in rabbinic sources. Indeed, on the basis of Havot Ya'ir's thesis that feticide is a form of destruction of the seed such a distinction would be quite illogical. The distinction between the first three months of pregnancy and later stages of gestation was apparently erroneously transmitted and subsequently cited by a number of authorities who did not have the original source before them.12gThere are, of course, other authorities who assert that the prohibition against feticide does not apply during the first forty days of pregnancy, but that is an entirely different matter. See below, pp. 339–347. R. Chaim Chizkiyahu Medini, author of Sedei Hemed, for example, carefully notes that he did not have access to this work.12hSee R. Solomon Abraham Rezechte, Bikkurei Shlomoh (Pietrokow, 5665), no. 10, sec. 5; see also, below, p. 340, n. 31.
The grave question of aborting a defective fetus has now been examined anew by Rabbi Waldenberg in his contribution to Assia. Rabbi Waldenberg now notes that the distinction frequently attributed to Havot Ya'ir is spurious. There is thus no source for a distinction between the first trimester and later stages of pregnancy. Since in Ẓiz Eli'ezer Rabbi Waldenberg permitted abortion of a defective fetus only during the first trimester at which time such an abortion is purportedly sanctioned also by the weight of Havot Ya'ir's opinion it might be concluded that, subsequent to discovery that there exists no authority who views the prohibition against abortion as inoperative during the first trimester, permission to abort an abnormal fetus should be withheld. Rabbi Waldenberg, however, reaches the opposite conclusion. In this recent responsum he relies entirely upon the opinions of R. Emden and Maharit and permits abortion of a Tay-Sachs fetus during later stages of pregnancy as well. In doing so Rabbi Waldenberg rules contrary to the decisions of other contemporary rabbinic scholars and contrary to his own previously expressed position. Rabbi Waldenberg's presently held view is that abortion of a defective fetus may be sanctioned until the end of the second trimester of pregnancy provided that the abortion itself poses no danger to the mother. He refuses to permit abortion beyond this period because a seven-month abortus may be viable. He further recommends that, if possible, the abortion should be performed by a female physician since, according to many authorities, women are not bound by the prohibition against "destruction of the seed."
In the same responsum Rabbi Waldenberg affirms the view that if Tay-Sachs screening is carried out before marriage and both prospective bride and groom have been identified as Tay-Sachs carriers they should be counselled that Judaism does not sanction a sterile union and they should be dissuaded from marrying one another.
It cannot be overemphaized that this advice pertains only to a contemplated marriage in which both partners are Tay-Sachs carriers. Since Tay-Sachs is a genetically recessive abnormality there is absolutely no possibility whatsoever that a child may suffer from Tay-Sachs disease if only one of his parents is a carrier. Children born of a union between a carrier and a non-carrier are at risk only of themselves being carriers. Since a Tay-Sachs carrier is in no way less healthy than a non-carrier such a child suffers no disadvantage save the advisability of exercising prudence in determining that his or her marriage partner is a non-carrier. Thus there is no reason for any stigma to be associated with the carrier state.
Temporary Crowns
In order to secure adequate protection of teeth prepared for single crowns or bridge retainers it is common dental practice to insert a temporary crown which then remains in place during the interval between preparation and final cementation of the restoration. This interval may vary in length from several days to several months. The temporary crown serves to protect the margins of preparation from damage and fracture, to maintain proper occlusal relationship between the teeth and also to protect the dentine and pulp from thermal, chemical and medicinal irritants. A temporary crown of aluminum or plastic is cemented in place either with an inert substance or with a medicinal agent which is sedative in nature. Such temporary restorations are later removed with the aid of dental instruments and normally cannot be removed by the patient himself.
Temporary crowns of this nature pose a halakhic problem with regard to ritual immersion by female patients. Immersion must be performed by submerging the entire body in water; the interposition of an intervening object constitutes a ḥazizah and invalidates the immersion. Do such crowns constitute a ḥazizah and must they therefore be removed before immersion, or may immersion be performed with the temporary crown in place? In general, a foreign substance permanently affixed to the body (e.g., a permanent filling in a tooth) is halakhically considered to be part of the body and hence does not constitute a ḥazizah. The plastic crown, although securely affixed with cement, must eventually be removed. Hence the problem: is a foreign substance which is now attached but eventually to be removed to be deemed a part of the body, or is it to be considered an entity distinct from the body and hence a ḥazizah? Rabbi Aaron Zlotowitz, writing in the Iyar 5731 issue of Ha-Pardes, cites a similar question which had been referred to Hatam Sofer. The case discussed deals with the initial immersion of the bride prior to her marriage. It was the custom in Hungary to cut the bride's hair after the wedding ceremony. Since it was soon to be cut, was the hair to be considered a foreign object and hence a ḥazizah in immersion? Quoting Tosafot, Baba Kamma 76b, Hatam Sofer declares that, while under certain circumstances Halakah considers an anticipated act to have taken place even prior to its actualization, this principle applies only if such actualization follows without interruption or delay. Since the bridal custom was to delay cutting the hair until the day following the wedding the hair did not constitute a ḥazizah. Similarly, concludes Rabbi Zlotowitz, since the temporary crown must remain in place until the time set by the dentist for its removal, such a crown does not constitute a ḥazizah.
Although Rabbi Zlotowitz formulates the problem of temporary crowns as a new question, the issues involved have been investigated previously in responsa literature in connection with related problems. Rabbi Moses Feinstein, Iggrot Mosheh, Yoreh De'ah, I, no. 97, advances a number of arguments, on the basis of which he rules that certain types of temporary fillings do not constitute a ḥazizah. Many of those considerations are equally applicable with regard to temporary crowns.
There is a general rule that a foreign object which is not an item of "concern" (aino makpid), i.e., its presence is not a source of annoyance and there is no "concern" to remove it, does not constitute a ḥazizah. Items which are a source of "concern", i.e., with regard to which there does exist a desire for removal, do constitute a ḥazizah. Rabbi Feinstein seeks to demonstrate that a foreign substance which is to remain attached to the body for a specific period of time does not constitute a ḥazizah even though there is definite reason and desire for removal at a later period. This is certainly the case if there is a positive reason for desiring the object to remain attached in the interim. This decision is based upon clarification of the halakhic provision that a foreign substance whose presence is not a matter of "concern" (aino makpid) does not invalidate the immersion. Rabbi Feinstein maintains that this rule is not predicated upon the rationale that the object in question acquires the status of an integral part of the body, but is based upon the facile explanation that something which is not an object of "concern" simply does not constitute an "interposition." Therefore, even though a temporary filling cannot be deemed to be a permanent part of the body, it nevertheless does not constitute a ḥazizah. If a definite date has been set for removal of the filling, the patient is "unconcerned" with its presence in the interim. On the contrary, he is "concerned" that it remain in place until the time set for its removal by the dentist.13See also R. Yitzchak Ya‘akov Weisz, Minḥat, Yiẓḥak, I, no. 23, and V, no. 111; and R. Ya‘akov Breish, Ḥelkat Ya‘akov, I, no. 137, and II, no. 173.
Rabbi Feinstein advances a second reason for ruling that a temporary filling does not constitute a ḥazizah. Although the filling is to be removed, the patient's "concern" is not that it be removed in order that the cavity be exposed. On the contrary, the patient wishes the cavity to be filled, his sole "concern" being that the temporary filling be replaced with a filling which is permanent in nature. Thus, a temporary filling may be deemed to have become part of the body because, even though the particular filling now in the tooth is eventually to be replaced, nevertheless, a filling will always be utilized to close the cavity. Both reasons advanced by Rabbi Feinstein apply to temporary crowns no less than to temporary fillings.14See also R. Meir Ze’ev Goldberger, Ha-Ma‘or, Elul 5733.
Rabbi Feinstein cautions that an improperly inserted filling—or crown—which causes toothache or which interfers with mastication does constitute a ḥazizah and hence a toothache at the time of immersion involving a tooth which has already been filled poses a halakhic problem.
Earlier responsa are replete with questions concerning individual false teeth, apparently of ivory or wood, which had to be removed from time to time for cleansing. R. Shalom Mordecai Schwadron, Da'at Torah, Yoreh De'ah 198:24, and R. Pinchas Horowitz, Pitḥa Zuta 198:41, cite several authorities who maintain that, despite their periodic removal, such teeth do not constitute a ḥazizah if either of two conditions are present: (1) the tooth can be removed only by a dentist or (2) removal of the tooth by the patient causes pain.
Many scholars maintain that since false teeth serve a cosmetic purpose they do not constitute a ḥazizah because there is a definite desire that they remain in place in order that personal appearance not be marred. Such false teeth must, however, be of a type which cannot easily be removed.15See R. Abraham Danzig, Binat Adam, Sha‘ar ha-Nashim, no. 12; R. Ya‘akov Ettlinger, Binyan Ẓion ha-Ḥadashot, no. 57; and R. Ya‘akov Breish, Ḥelkat Ya‘akov, III, no. 33. Rabbi David Spector, Ha-Pardes, Tammuz 5732, notes that false teeth located in the rear of the mouth also do not constitute a ḥazizah. Although such teeth do not serve a cosmetic purpose, they are designed to aid in mastication of food. Since they serve a functional purpose, there is a definite desire that they remain in place and hence the same line of reasoning applies.
It has been brought to the writer's attention that some Orthodox dental practitioners are careful to use a medicinal cement in preparing temporary crowns for female patients. Apparently, these dentists are under the impression that such cement does not constitute a ḥazizah simply by virtue of the fact that it serves as a therapeutic agent. This assumption is, however, erroneous. Numerous authorities indicate that foreign substances serving a therapeutic function, such as powder or salve, do constitute a ḥazizah unless applied to alleviate a threat to the very life of the patient.16See Mishneh Aḥaronah, Mikva’ot 9:9; Shakh, Yoreh De‘ah, 198:14; Binat Adam, Sha‘ar ha-Nashim, 12; and Iggrot Mosheh, Yoreh De‘ah, I, no. 97. Accordingly, there is no halakhic preference for the use of medicated rather than inert cement. The previously cited arguments serve to establish the fact that neither the crown nor the cement with which it is affixed constitutes a ḥazizah.
Plastic Surgery
Judaism recognizes divine proprietorship over all objects of creation, including the human body. Judaism expressly teaches that the individual has no proprietary rights with regard to his own body, and hence is forbidden to mutilate or wound his own body (see Rambam, Hilkhot Hovel u-Mazik 5:1).16aCf. R. Joseph Babad, Minḥat Ḥinukh, no. 48; and R. Chaim Chizkeyahu Medini, Sedei Ḥemed, I, Ma‘arekhet ha-Alef, Pe’at ha-Sadeh, no. 40. A person's body is committed to him for safekeeping, and hence self-mutilation or any form of assault upon the body is viewed as a breach of this stewardship. Dispensation for intervention in physiological processes for therapeutic purposes is granted in the biblical directive, "and he shall cause him to be thoroughly healed" (Exod. 21:19). Thus, a surgical operation to correct a deformed or malfunctioning organ is specifically excluded from the prohibition against "wounding."
The perfection of highly sophisticated medical techniques has led to the development of a wide range of elective surgical procedures. As a result, cosmetic surgery is becoming increasingly more commonplace in our society. From the perspective of Halakhah, elective cosmetic surgery gives rise to a number of significant questions. Plastic surgery undertaken solely for cosmetic or esthetic purposes differs significantly from other corrective procedures. The obvious halakhic problem associated with plastic surgery is whether or not such procedures involve infractions of the law against wounding (ḥavalah). A further, more general question is raised by the risk to life involved in such procedures. Any form of surgery, particularly when performed under general anesthesia, poses at least a minimal, but nevertheless significant, threat to life. Is it permissible, according to Halakhah, to expose oneself to such danger for cosmetic purposes? A third question is posed by cosmetic surgery performed upon male patients. The prohibition "a man shall not put on a woman's garment" (Deut. 22:5) extends not only to the wearing of female clothing by a male but also to the application of cosmetics or to any act of beautification usually associated with women. Dyeing of the hair and removal of armpit or pubic hair are specifically enumerated acts of this nature. Are such forms of plastic surgery as facelifting, nasoplasty, etc., so widely associated with women as to constitute a form of "female dress," or may men avail themselves of such methods for purposes of improving their appearance?
The problems posed by plastic surgery are discussed by Rabbi Chanoch Grossberg in a cursory manner in the context of a more comprehensive treatise devoted to topical medical issues appearing in the 5733 edition of No'am. Rabbi Grossberg cites the earlier, more extensive analyses of these questions by Rabbi Yechiel Ya'akov Breish, Helkat Ya'akov, III, no. 11, and Rabbi Menasheh Klein, Mishneh Halakhot, IV, nos. 246 and 247. Of importance in this regard is the responsum of Rabbi Eliezer Waldenberg, Ẓiz Eli'ezer, XI, no. 4, secs. 8–9, in which Rabbi Waldenberg forcefully advances the argument against surgery which is purely cosmetic in nature.
Rabbi Klein draws a distinction between plastic surgery undertaken for cosmetic purposes in order to improve personal appearance or to reverse the normal manifestations of the aging process and surgery designed to remedy a mum, or "blemish," which may be either congenital in nature or the result of accidental disfigurement. Ketubot 72b states that if a man contracts a marriage on the condition that the bride be free of blemishes, and it is subsequently discovered that a blemish is present, the marriage is deemed to be invalid. The Gemara further declares that since the marriage is considered to be invalid from its inception, subsequent removal of the blemish cannot validate the marriage. Rabbi Klein argues that since the Gemara, in the course of the discussion of this question, makes specific reference to the woman seeking medical help "to heal" the blemish, it may be inferred that a physician is permitted to correct such blemishes. According to this argument, the treatment of such conditions constitutes an act of healing included in the dispensation "and he shall surely heal" and is accordingly excluded from the proscription against "wounding."
The term "blemish" is defined by the Gemara by means of specific enumeration. Priests marred by "blemishes" are forbidden to participate in the sacrificial rituals. A total of 140 different blemishes are listed. Among these are are included a crooked nose, a nose longer than the small finger of one's hand and inordinately large breasts. Rabbi Klein argues that the reversal of any condition constituting one of the specifically enumerated "blemishes" does not constitute an act of wounding. Although this thesis may not be an unreasonable one Rabbi Klein adduces no convincing evidence that "wounding" is permissible other than for purposes of healing a malady. There is no specific evidence that members of the priestly family were permitted, much less obliged, to remove such blemishes by means of surgery in order to become qualified to participate in the offering of sacrifices.16bIndeed, Tosafot, Pesaḥim 28b, states explicitly that a person whose genital organs have not appeared externally (a tumtum) need not submit to corrective surgery in order to fulfill the miẓvah of circumcision. Nor does the Gemara, in speaking of a woman seeking the removal of a blemish, state that the condition was remediable by means of surgery or that such surgery was indeed permissible. Be that as it may, Rabbi Klein, in the second of his two responsa dealing with this topic, ignores his own distinction, but indicates that plastic surgery is warranted in order to alleviate certain forms of psychological distress, as will be indicated later.
Rabbi Breish cites evidence showing that "wounding" is permissible not only for purposes of curing a physiological disorder but also for purposes of alleviating pain. Shulḥan Arukh, Yoreh De'ah 241:3, states that a son should not "wound" his father even for medical reasons. Hence he should not remove a splinter, perform blood-letting or amputate a limb. Rema adds that if no other physician is available and the father is "in pain," the son may perform blood-letting or an amputation on behalf of his father. A similar statement is made by Me'iri, Sanhedrin 84b. Since the phraseology employed by these sources indicates that the contemplated procedures were designed to mitigate pain rather than to effect a cure, Rabbi Breish concludes that alleviation of pain is included in the pronouncement "and he shall cause him to be thoroughly healed" and hence excluded from the prohibition against "wounding."
The halakhic definition of pain is significantly expanded by Tosafot, Shabbat 50b. Tosafot states that a state of mind which prevents a person from mingling with people constitutes "pain" within the halakhic definition of that term. Accordingly, both Rabbi Breish and Rabbi Klein conclude that if an individual shuns normal social intercourse as a result of a deformity or other disfigurement, the condition causing distress may be corrected by means of plastic surgery.
Writing in the sixth volume of No'am (5723), Rabbi Immanuel Jakobovits opines that plastic surgery would also be permissible in order to rectify conditions as a result of which the afflicted individual experiences difficulty in finding employment or a marriage partner, but indicates that he has not marshaled halakhic sources substantiating this conclusion. Indeed, Tosafot, Baba Kamma 91b, clearly states that "wounding" is forbidden even when undertaken for purposes of pecuniary advantage. Quite obviously the desire for financial gain is not in itself sufficient grounds upon which to justify "wounding." Nevertheless, it would appear that the psychological anguish normally attendant upon not being able to find gainful employment or a suitable marriage partner is a form of "pain" no less severe than distress at not feeling free to mingle socially with other people. It would follow that, in such circumstances, cosmetic surgery is permissible in order to alleviate this anguish.
Although the prohibition concerning wounding does not apply in these limited situations, is it permissible to place one's life in danger in order to alleviate psychological anguish? Citing the above-mentioned comments of Rema, Rabbi Breish argues that even the amputation of a limb is permissible in order to alleviate pain. The Gemara, in a number of instances (Shabbat 129b, Avodah Zarah 30b, Niddah 31a and Yevamot 72a), indicates that a person may engage in commonplace activities even though he places himself in a position of danger in so doing. In justifying such conduct the Gemara declares, "Since many have trodden thereon 'the Lord preserveth the simple' (Ps. 116:6)." The talmudic principle is that man is justified in placing his trust in God, provided that the risk involved is of a type which is commonly accepted as a reasonable one by society at large. Rabbi Breish apparently feels that any accepted therapeutic procedure falls into this category.16cCf. Darkei Teshuvah, Yoreh De‘ah 155:2; Levushei Mordekhai, Yoreh De‘ah, II, no. 87; and R. Eliezer Waldenberg, Ẓiẓ Eli‘ezer, X, no. 25, chap. 17, sec. 1.
This position may perhaps, be justified on the basis of yet another argument. Both Ramban, in his Torat ha-Adam (Kitvei Ramban, ed. Bernard Chavel, II, 43), and Ran, in his commentary to Sanhedrin 84b, comment that all modes of therapy are potentially dangerous. Ran declares, "All modes of therapy are a danger for the patient, since it is possible that if the physician should err with regard to a specific drug, it may kill the patient." Ramban states even more explicitly, "With regard to cures, there is nought but danger; what heals one, kills another." Nevertheless, it is beyond dispute that a physician may treat even those illnesses which are not life-threatening in nature. Since an aggressor is clearly liable for medical expenses, even if the wound inflicted is not potentially lethal, it may be argued that the verse "and he shall cause him to be thoroughly healed" conveys blanket dispensation for any sound medical practice. Although every therapy is fraught with danger, the hazards of treatment are specifically sanctioned when incurred in conjunction with a therapeutic protocol. Accordingly, the practice of the healing arts may be permitted even if designed simply for the alleviation of pain.16dSee also Ẓiẓ Eli‘ezer, X, no. 25, chap. 17, sec. 1.
A diametrically opposed view is expressed by R. Ya'akov Emden in his Mor u-Kezi'ah Oraḥ Hayyim 328, R. Ya'akov Emden speaks of persons who place their lives in jeopardy in order to alleviate pain, such as those "who allow themselves to be operated upon in order to remove a stone in the 'pocket' etc.," and states that if there is no danger associated with the pain, such individuals "do not act correctly." Similarly, Avnei Nezer, Yoreh De'ah, no. 321, permits the application of a cast for purposes of correcting an orthopedic condition but adds that he would not have approved an operation as a proper therapeutic procedure since all surgical procedures involve some danger. Rabbi Klein also rules that cosmetic surgery is not permissible if it poses any danger to life.
Rabbi Breish and Rabbi Klein both rule that cosmetic surgery, when permissible, is permissible not only for women but for men as well. As has been indicated, cometic surgery is not permitted simply for purposes of beautification but is sanctioned only in order to alleviate psychological anguish. Tosafot, Shabbat 50b, states that males are permitted to use cosmetics if such cosmetics are applied for purposes of alleviating pain. It follows, therefore, that other forms of beautification commonly associated with women are also permitted to males, provided they are designed primarily for purposes of alleviating pain. Rabbi Klein further notes that in the United States cosmetic surgery is not a uniquely feminine form of beautification but is widely practiced by males as well and, accordingly, does not constitute an infraction of the prohibition against the wearing of female garments.
Post-Mortem Caesareans
The medical feasibility of a post-mortem Caesarean section in order to save the fetus after the mother has died in labor was not only known in talmudic times but was regarded as an obligatory procedure in order to preserve the life of the unborn child. The Gemara, Erukhin 7a, declares that if a woman dies in childbirth on the Sabbath, a knife may be brought through a public domain in order to make an incision into the uterus for the purpose of removing the fetus. It is thus evident that not only is this procedure compatible with halakhic principles, but that Sabbath regulations may be violated in order to save the life of the unborn fetus. This ruling is authoritatively cited by Shulḥan Arukh,Oraḥ Hayyim 330:5. However, R. Moses Isserles, in a gloss to this ruling, indicates that this provision, while valid in theory, is nevertheless inoperative in practice. Rema declares that quite apart from the problems related to desecration of the Sabbath, it is forbidden to attempt a post-mortem Caesarean for other reasons. Such attempts are forbidden on weekdays as well as on the Sabbath, according to Rema, because we lack the competence to determine with exactitude the precise moment of maternal death. Since one may not even move a limb of a moribund person lest this action hasten his death, it is obvious that an incision into the womb cannot be made until such time as death has been established with absolute certainty. The requirement that death be established conclusively necessitates a significant delay following the manifestation of clinical symptoms of death. Rema declares that it is a foregone conclusion that the fetus will no longer be viable after this period has elapsed. This procedure, if performed after the required delay, serves no medical purpose and consequently constitutes an unwarranted violation of the corpse.
Rema's position is that what may appear to be cessation of respiratory activity cannot be accepted as an absolute criterion of death. Our lack of competence is due to an inability to distinguish between death and a fainting spell or swoon. In the latter cases respiratory activity does continue to occur, although respiration may be so minimal that it cannot be perceived.
Writing in the Tammuz 5731 issue of Ha-Ma'ayan, Dr. Jacob Levy, an Israeli physician and frequent contributor to halakhic journals, argues that in light of the clinical aids now available to the physician, the considerations raised by Rema are no longer relevant. Rema's declaration that the ruling of the Shulḥan Arukh is not followed in practice is based upon the fear that a fainting spell or swoon may be misdiagnosed as death. Dr. Levy points out that in many cases the possibility of such errors can be eliminated by the use of a sphygmomanometer to determine that no blood pressure can be detected in conjunction with an electrocardiagram to ascertain that all cardiac activity has ceased. Accordingly, Dr. Levy strongly recommends that rabbinic authorities declare that the original ruling of the Shulḥan Arukh now be followed in practice.
Dr. Levy adds that this proposal should not be construed as an abrogation of Rema's ruling since many authorities recognize that Rema's statement is based upon empirical considerations and admits to exceptions. For example, R. Ya'akov Reischer, Shevut Ya'akov, I, no. 13, in discussing the bizarre case of a pregnant woman who had been decapitated on Shabbat, states unequivocally that the physician who had the presence of mind to incise the abdomen immediately in order to remove the fetus need have no pangs of conscience since in this instance the mother's prior death is established beyond cavil. Similarly, concludes Dr. Levy, Rema's statement should not be viewed as normative under changed circumstances which enable medical science to determine that death has already occurred. This argument is cogent because Rema himself remarks that it had become necessary to disregard the earlier authoritative decision of the Shulḥan Arukh solely because of a lack of medical expertise.
This question is essentially part of a much broader problem; namely, the establishment of an exact definition of death in Jewish law, a topic which has received much attention of late. Rema does not indicate how much time must elapse after the apparent cessation of respiration before the patient may be pronounced dead. Various later authorities establish a twenty-minute waiting period, others a period of thirty minutes. Several contemporary halakhic scholars who have addressed themselves to this issue fail to abrogate this waiting period. The problem of determining the halakhic definition of death will be discussed in a later chapter.
Autopsies with Consent of the Deceased
The regular appearance of Talpiot, a quarterly devoted to all areas of Jewish scholarship and published under the auspices of Yeshiva University, has been suspended since the death in 1966 of its editor, the late Professor Samuel K. Mirsky. Prior to his demise, Professor Mirsky had been engaged in the compilation of material to be included in yet another volume of this publication. This task was brought to completion by his son, Rabbi David Mirsky, dean of Yeshiva University's Stem College for Women.
This issue of Talpiot, bearing the date Elul 5730, contains a hitherto unpublished responsum by the renowned scholar, the late Rabbi Yechiel Michal Tucatzinsky, dealing with a timely issue pertaining to the general question of autopsies. The question concerns individuals who have willed their bodies to institutions engaged in medical research or who, while yet alive, have given permission for autopsies to be performed upon their bodies. Rabbi Yekutiel Yehudah Greenwald, in his Kol Bo 'al Avelut—a twentieth-century compendium which has gained wide acceptance as a standard work on the laws of mourning and related topics—cites R. Ya'akov Ettlinger, Binyan Ẓion, nos. 170 and 171, and declares that dissection may be performed without transgression if such was the wish of the deceased. This ruling is predicated upon the rationale underlying the Halakhah forbidding desecration of a dead body. Halakhah demands that every honor be accorded the human corpse; dissection constitutes a violation of the dignity of the deceased body. The claim to honor and dignity is essentially a personal prerogative and may be renounced at will. If prior consent is obtained during an individual's lifetime, claims with regard to honor and dignity after death can no longer be entertained. Accordingly, the person who performs dissection under such circumstances commits no transgression.
Rabbi Tucatzinsky contests this thesis. It is an established verity that, from the point of view of Judaism, man has no proprietary rights with regard to his body. A person's body has been committed to him for safekeeping only, and must be returned to the Creator as it was received. Thus, self-mutilation, or any assault upon the body other than for therapeutic purposes, is forbidden by Halakhah. The prohibition against desecration of the dead, points out Rabbi Tucatzinsky, is based upon similar considerations. The Torah declares, "You shall not cause his body to remain all night upon the tree … for a reproach unto God is hanged" (Deut. 21:23) and thereby indicates that even after life has ebbed it is forbidden to commit indignities against the human body which is created in the "image of God." Rabbi Tucatzinsky argues that since all laws pertaining to violation of the corpse are predicated upon this verse, man has no rights of "proprietorship" with regard to the disposal of his body after death, just as he enjoys no rights of ownership over his body during his lifetime. Violation of the body is then essentially a crime against God rather than a crime against man. Since the crime is against God, prior permission of the person whose body is to be dissected is of no significance. We may note that a similar view is recorded in Teshuvot Hatam Sofer, Yoreh De'ah no. 336, and in Teshuvot Maharam Schick, Yoreh De'ah, no. 347.
Medical Experimentation Upon Severed Organs
A recurrent question in rabbinic literature concerns the status of organs and limbs removed from living persons during the course of surgery. At times there is a need for protracted examination of such organs in conjunction with medical research. Such experimentation poses two halakhic questions: (1) Is the commandment to bury the dead applicable only after death has occurred, or does it also include an obligation to bury limbs and organs removed from living persons? (2) A corpse is deemed to be assur be-hana'ah, i.e., it is forbidden to derive benefit from the body of the deceased (other than in face of immediate danger to human life). Is this prohibition limited to the body of a deceased person, or does it also encompass lifeless organs and limbs which have been removed from a living person?
The tenth volume of Ẓiz Eli'ezer deals extensively with a multitude of pertinent medical questions. In no. 25, chap. 8, of this work, Rabbi Eliezer Waldenberg discusses in detail the halakhic problems attendant upon medical experimentation utilizing severed organs. Two issues of Kol Torah (Adar-Iyar and Sivan-Elul 5730) contain a further discussion of this important topic by Rabbi David Cohen of Yeshivat Chevron.
The Yad ha-Melekh, commenting on Rambam, Mishneh Torah, Hilkhot Avel 2:14, declares that there exists an obligation to bury parts of the body removed from a living person. The Halakhah prohibits a kohen from defiling himself through contact with severed organs even when these are removed from the persons of those close relatives whose burial requires his participation and defilement. The implication, argues Yad ha-Melekh, is that such limbs and organs require burial even though a kohen may not defile himself in conjunction with their interment. Rabbi Waldenberg rejects this contention, arguing that burial is required not as a fulfillment of the commandment concerning interment of the dead, but simply as a means of preventing inadvertent defilement of kohanim who may come into contact with such limbs or organs. Quoting Maharil Diskin, Kuntres Aḥaron, no. 188, who describes the interment of severed organs as a practice mandated by custom rather than by law,17This is also the position of Noda bi-Yehudah, II, Yoreh De‘ah, no 209. R. Moses Feinstein, Iggrot Mosheh, Yoreh De‘ah, I, no. 231, rejects this view and rules that all parts of the body require burial as a matter of law. Rabbi Waldenberg concludes that there exists no prohibition against deriving benefit from such organs. Were this not the case, burial would be obligatory as a matter of law rather than custom, as is the Halakhah with regard to all substances from which it is prohibited to derive benefit (issurei hana'ah). Accordingly, Rabbi Waldenberg rules that there is no halakhic objection to medical experimentation upon organs and limbs removed from living persons.
Rabbi Waldenberg draws a sharp distinction between the status of an aborted fetus and that of removed organs. The preponderance of halakhic opinion is that burial of a fetus is halakhically mandated as a matter of law. In his analysis of this subject, Rabbi Cohen seizes upon this point and contends that the status of removed organs is identical with that of a fetus. The halakhic obligation to bury a fetus is derived by inference from the stipulation that a kohen may not defile himself in order to bury his own fetal progeny. From this it is deduced that although a kohen may not defile himself, interment of the fetus is obligatory (Magen Avraham, Oraḥ Hayyim, 526:2). This obligation with regard to the fetus is deemed to be included in the obligation to bury the dead and is not regarded as a precautionary stipulation designed to prevent kohanim from inadvertently defiling themselves through contact with the fetus. This line of reasoning parallels that of Yad ha-Melekh with regard to separated organs. Thus, Rabbi Cohen argues, the halakhah forbidding a kohen to defile himself through contact with organs removed from close relatives should be viewed as establishing an obligation with regard to the interment of organs removed from living persons. Furthermore, contends Rabbi Cohen, those authorities who view burial of organs separated from a living person as a mere custom similarly maintain that burial of individual organs separated from a corpse is a custom, not an obligation. In terms of definitive Halakhah this latter opinion is rejected and the accepted view deems it obligatory to bury individual organs of the deceased. Therefore, Rabbi Cohen concludes that, with regard to burial, there is no distinction between organs separated from a corpse and those separated from a living person.18Of interest with regard to this discussion is Bereshit Rabbah LX,3, which reports that Jephthah was punished for his arrogance and was afflicted with a debilitating disease which caused his limbs to fall off. This occurred over a period of time during which Jephthah journeyed through many cities. Each limb, the Midrash indicates, was interred in the city in which it became separated from his body. Judges 12:7 reads, “… and Jephthah the Gileadite died and was buried in the cities of Gilead.” Since his limbs were buried in different locales, Jephthah is spoken of as having been buried in the cities of Gilead.
In practice, when such organs are utilized for purposes of scientific research, they should be accorded dignified burial upon completion of the necessary pathological procedures.