When afflictions are inflicted upon a person they are sworn…not to depart other than on a specific day, at a specific hour, through the intermediacy of a specific person and by means of a specific medicament.
AVODAH ZARAH 55a
Choosing Between Therapies: A Painful Dilemma
The widely-acclaimed Jerusalem Institute of Technology, of which the late R. Shlomoh Zalman Auerbach was a guiding spirit, has, for the past number of years, been compiling and publishing an annual volume of essays devoted to topical halakhic issues pertaining to technology and medicine. Those volumes, bearing the title Ateret Shlomoh, are published in memory of Rabbi Auerbach.
Volume IV (Adar 5759) of that series features an article by the highly regarded head of the Institute, R. Levi Yitzchak Halperin, devoted to a heart-wrenching medical problem. The hypothetical case involves a child afflicted with a malignant brain tumor that would almost certainly be fatal if left untreated. The tumor in question can be treated in one of two ways: 1) Chemotherapy can be used in treating this form of cancer and will be successful in approximately 60% of all cases. 2) The tumor can also be treated by whole-brain radiation which is effective in virtually all cases. The problem with the latter form of treatment is that, in a pediatric patient whose brain is not fully developed, there is a strong likelihood that the patient will suffer loss of neural function so severe that it will render the child a shoteh; i.e., the child will suffer extreme mental retardation. For purposes of analyzing the problem it must be assumed that radiation cannot be held in abeyance until it is determined whether or not chemotherapy will be successful.
Assuming that there is no cogent reason to fear that radiation poses a risk of foreshortening life, there is little question that, were radiation the sole therapy available, it would be obligatory to treat the patient in that manner even were resultant severe mental retardation to be a certainty. The issue in the case described is whether a statistically less efficacious therapy may be employed in the hope of not compromising quality of life.
This writer has consulted a number of medical specialists in the fields of pediatrics, oncology, neurology and radiology in an attempt to identify the type of tumor for which these possible modes of therapy are accompanied by the statistical risks described. That effort did not meet with success. It must be presumed that the discussion refers to a hypothetical situation. The fact that, as presented, the dilemma is not actual in no way diminishes the importance of the issue involved. The halakhic principles to be applied are applicable in many other situations as well.
Rabbi Halperin frames the question in terms of the consideration that it will become impossible for the mentally incompetent patient to perform mizvot. Framed in those terms, the issue is whether or not a person may accept a significant degree of risk, not in order to effect a cure, but to be assured of the ability to perform mizvot. The broader question is whether a person may accept a significant degree of risk in order to improve, or prevent a deterioration of, quality of life. The dilemma as posed by Rabbi Halperin is whether severe mental retardation must be accepted as the cost of improving chances of survival. The broader question is whether severe physical incapacity such as, for example, paralysis or blindness, must be accepted as the cost of improving chances of survival.
Rabbi Halperin tentatively suggests that there may be no obligation of rescue in situations in which the person whose life is saved will remain mentally incompetent. The Gemara, Sanhedrin 73a, bases the obligation to preserve the life of one's fellow upon the obligation to return lost property: Since a person is obligated to return lost property, a fortiori, he must be obligated to restore a person's life no less so than he is obligated to restore that person's property. However, as recorded in Shulḥan Arukh, Hoshen Mishpat 261:4, there is no obligation to restore the property of a person who willfully abandons or attempts to destroy his property. The fact that the Gemara derives the obligation of rescue from the obligation to restore lost property prompted Minḥat Hinnukh, Komez Minḥah, no. 237, and R. Yerucham Perla, in Mahari Perla, his commentary on R. Sa'adia Ga'on's Sefer ha-Mizvot, mizvot aseh, no. 28, s.v. u-milevad zeh, to reach the astonishing conclusion that there is no obligation to intervene in order to prevent a would-be suicide.
Surprisingly, but on the basis of the same line of reasoning, R. Shlomoh Kluger, Hokhmat Shlomoh, Hoshen Mishpat 426:1, asserts that there is no obligation to save one's fellow from imminent death if the act of rescue would involve humiliation or embarrassment to the rescuer. Hokhmat Shlomoh argues that the exemption from taking custody of and returning lost property in such circumstances extends to preservation of life.1R. Meir Don Plocki, Klei Ḥemdah, Parashat Ki Teẓe, sec. 6 (1), rebuts that contention on the basis of the categorization by the Gemara, Sotah 21b, of a person who declined to rescue a drowning woman as a “stupid pietist” (ḥasid shoteh). Klei Ḥemdah, ibid. 6(2), also notes that prevention of suicide is mandated not only by virtue of the obligation to preserve life but also by virtue of the obligation to prevent a fellow Jew from transgression. The latter obligation admits of no exception because of shame or embarrassment.
Moreover, a person is exempt from restoring lost property if rescuing such property would cause him humiliation or embarrassment only if he would be willing to suffer the loss of such property were it his own in order to spare himself similar humiliation or embarrassment. It is highly unlikely that a person would decline to rescue a close relative whose life is endangered simply because rescue would entail a measure of humiliation or embarrassment. See R. Joseph Shalom Eliashiv, Sefer ha-Zikaron le-Maran ha-Grib Zolti, ed. R. Joseph Buchsbaum (Jerusalem, 5747), p. 404.
Rabbi Halperin applies a similar parallelism in the medical context. The Gemara, Bava Mezi'a 30b, establishes that a person must trouble himself to return another person's property only in situations in which he would devote similar time and expend similar effort in preserving his own property. Apparently assuming that the same exemption exists in a situation in which the owner of the property would not deem it worth his while to preserve his own property, argues Rabbi Halperin, there is no obligation to provide life-prolonging treatment for a person who does not wish to live. Such an individual would not seek to preserve his own life; hence, argues Rabbi Halperin, according to the earlier-cited authorities, it is not incumbent upon others to do so on his behalf.2The application of this argument to the case under discussion is far from clear. It may well be the case that a mentally competent, fully rational individual would deem a life of mental incompetence worse than no life at all. An infant, however, never having experienced life as a person endowed with reason, has no basis for an aversion to a life bereft of reason. Moreover, lacking mental development, an infant does not have the cognitive capacity to formulate a conscious desire either to survive or not survive.
That argument fails for a number of reasons. A person has no obligation to prevent his property from becoming destroyed. The prohibition of bal tashḥit, i.e., wasteful or wanton destruction of property, prohibits only wanton acts of destruction but does not mandate conservation of resources. Hence, a person may legitimately decline to preserve property facing imminent destruction, particularly when intervention would involve expenditure of time and effort not commensurate with the value of the endangered property. Not so with regard to life. According to Rabbenu Nissim, a person is under obligation to preserve his own life even if he prefers death because failure to do so is tantamount to suicide.3See Rabbenu Nissim, Shevu’ot 25a. See also this author’s Bioethical Dilemmas, II (Southfield, Michigan, 2006), 168. It then follows that, since a person is obligated to preserve his own life under any and all circumstances, others are similarly required to engage in acts of rescue on his behalf regardless of his desires.
Moreover, as Rabbi Halperin himself concedes, the positions of Minḥat Hinnukh, Mahari Perla and Hokhmat Shlomoh are rejected by the consensus of rabbinic authorities. The Gemara, Sanhedrin 73a, posits a further obligation to preserve the life of one's fellow based upon the verse "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). That negative commandment seems to be quite independent of the obligation regarding restoration of property—and the a fortiori obligation to rescue life—and, accordingly, does not admit of any of the exclusions attendant upon the obligation to restore lost property.4The notion that the negative commandment is not at all contingent upon the obligation of restoring lost property is developed by Rabbi Eliashiv, Sefer ha-Zikaron, p. 404, and invoked by him in explaining why a person involved in fulfilling a miẓvah is not thereby exempt from the obligation of rescuing a person whose life is endangered.
Even if the earlier-cited authorities are correct in assuming that the prohibition "Nor shall you stand idly by the blood of your fellow" is limited to situations in which intervention is mandated by "and you shall restore it to him" (Deuteronomy 22:2) and does not establish an entirely independent obligation, the conclusion reached by those authorities is not compelled. A person's life, unlike his property, does not belong to himself but to the Creator.5See Rambam Hilkhot Roẓeaḥ 1:4; Radvaz, Hilkhot Sanhedrin 18:6; Shulḥan Arukh ha-Rav, V, Hilkhot Nizkei Guf va-Nefesh, sec. 4; and R. Shlomoh Yosef Zevin, Le-Or ha-Halakhah (Tel Aviv, 5717), pp. 222f. Cf., R. Shiloh Rafael, Torah she-be-al Peh, XXXIII (5752), 74-81, reprinted in idem, Mishkan Shiloh (Jerusalem, 5756), pp. 212-221. Accordingly, argues R. Yo'av Yehoshu'a Weingarten of Kintzk (Konskie), in a responsum included in R. Issachar Berish Graubert's Teshuvot Divrei Yissakhar, no. 168, the obligation to preserve life is not a duty owed to the potential victim but to the Deity and that duty is shared equally by the rescuer and the person rescued.6Indeed, Tur Shulḥan Arukh, Ḥoshen Mishpat 261, maintains that willfully abandoned property or property that a person attempts to destroy becomes res nullius. However, Rambam, Hilkhot Gezelah ve-Avedah 11:11, maintains that an attempt to destroy one’s property does not render it res nullius but that, nevertheless, there is no obligation to preserve such property. R. Yo’av Yeshoshu’a Weingarten’s line of reasoning is cogent according to both positions. See Rabbi Eliashiv, Sefer ha-Zikaron, p. 404. In a responsum of which the earlier-cited authorities were apparently unaware, R. Meir of Rothenberg, Teshuvot Maharam ben Barukh (Prague, 5368), no. 39, rules unequivocally that an individual must be rescued from potential death even if he protests and vehemently demands that there be no intervention. A similar rebuttal is offered by R. Meir Dan Plocki, Klei Hemdah, Parashat Ki Teze, sec. 6.7See also R. Chaim Joseph David Azulai, Birkei Yosef, Oraḥ Ḥayyim, 301:6, who rules that Sabbath restrictions are suspended for purposes of saving the life of a would-be suicide. Similar rulings are recorded in Teshuvot Maharil Diskin, Kuntres Aḥaron, no. 5, sec. 34, as well as in Iggerot Mosheh, Yoreh De’ah, II, no. 174, anaf 3 and Yoreh De’ah, III, no. 90.
By far the sharpest language employed in rejecting those views is that of R. Moshe Feinstein, Iggerot Mosheh, Yoreh De'ah, II, no. 174, anaf 3:
… with the forgiveness of these illustrious scholars, it is clear that it is absolute error, may their Master forgive them! Heaven forfend that the words of Hokhmat Shlomoh be uttered, for if the honor of Heaven is set aside … for the sake of saving the life of even the most inferior person … certainly the honor of a mortal, even of the greatest of the great, must be set aside.
Iggerot Mosheh argues that although preservation of personal dignity may be a consideration sufficient to negate the obligation to restore lost property, it cannot be invoked to excuse oneself from the obligation of rescuing life: God, in permitting violation of His commandments for purposes of pikuaḥ nefesh has waived His own honor; a fortiori, the dignity of a mortal cannot represent a value that might serve to abrogate the duty of rescue.
Iggerot Mosheh further argues that one must conduct oneself vis-à-vis another person's lost property as one would conduct oneself vis-à-vis one's own and hence one must act the same way with regard to preservation of the life of another. Iggerot Mosheh argues that since a person would seek to save his own life under any and all circumstances he cannot plead humiliation as an exception from the obligation to save the life of another. Iggerot Mosheh adds that even if the individual in question
is a person to whom dignity is preferable to life, behold it is forbidden to die because of [avoidance of] demeaned dignity. Therefore, that the person would be [willing to be] wicked is meaningless in terms of exempting him from rescuing others because of his wickedness. Besides, no person has credibility to declare that his dignity is preferable to him over his life.
Rabbi Halperin advances another consideration relevant solely to the particular situation he addresses, viz., potential mental incompetence. As a rationale for the principle that Sabbath restrictions are set aside for preservation of life, the Gemara, Shabbat 151b and Yoma 85b, advances the argument: "Better that they desecrate one Sabbath on his behalf so that he may observe many Sabbaths." Rabbenu Nissim, Yoma 82a, offers that rationale, inter alia, in ruling that Sabbath restrictions must be set aside in order to preserve the life of a fetus even in the earliest stages of development. Rabbenu Nissim clearly maintains that this consideration is both normative and independent of other considerations in terms of setting aside halakhic restrictions.
Rashba, cited by Bet Yosef, Oraḥ Hayyim 306, apparently disagrees. Rashba addressed a question involving a person whose daughter was abducted on Shabbat and faced forced apostasy. The interlocutor sought advice with regard to the propriety of engaging in acts ordinarily forbidden on Shabbat in an attempt to rescue his daughter. Rashba replied that the matter required further study but that he was inclined to the negative. Since an apostate will surely desecrate the Sabbath, acts of rescue could readily be justified on the basis of the rationale "Better that they desecrate one Sabbath in order to observe many Sabbaths," were that consideration to be considered normative. Rashba's failure to issue a positive ruling indicates that he did not regard that rationale to be applicable.8The parameters of an entirely different principle that might serve as a basis for intervention, viz., “A scholar would prefer to commit a lesser transgression so that an ignoramus not commit a graver transgression” (Eruvin 32b), are discussed by Tosafot, Shabbat 4a. Cf., Magen Avraham, Oraḥ Ḥayyim 306:29.
Nevertheless, both Taz, Oraḥ Hayyim 306:5, and Magen Avraham, Oraḥ Hayyim 306:29, understood Rema, Hilkhot Shabbat 328:10, as ruling that Sabbath prohibitions may be ignored in order to save a Jew from apostasy for precisely that reason, i.e., so that he may continue "to observe many Sabbaths." If so, argues Rabbi Halperin, it would follow that Sabbath restrictions may also be ignored in order to cure a person of lunacy or mental incompetence "so that he may observe many Sabbaths." Actually, that point was made much earlier by R. Iser Yehudah Unterman, Shevet me-Yehudah, I (Jerusalem, 5715), 49 and 64. Rabbi Unterman, however, declares that the Gemara posits that rationale only in situations in which the undertaking is assured of success so that the observance of "many Sabbaths" is a certainty.
Moreover, the argument is inherently flawed. The notion that a single Sabbath may be set aside in order to gain the observance of many Sabbaths reflects the notion that a certain degree of risk-taking vis-à-vis Sabbath observance, and even compromise thereof, is warranted in order to gain maximum Sabbath observance. It does not at all follow that even ḥayyei sha'ah, i.e., ephemeral longevity, may be ventured solely for the sake of maximizing Sabbath observance.
Rabbi Halperin also notes that mental incompetence is regarded by Halakhah as itself constituting a life-threatening condition. A person afflicted in that manner poses a danger to himself as well as to others and certainly lacks the mental capacity to avoid situations of danger. In support of that contention, Rabbi Halperin cites a statement of Bet Yosef, Yoreh De'ah 228, in the name of Rashba. That responsum is published in Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 281.
The earliest reference to mental disease sufficiently grave to imperil the life of the afflicted occurs in Issur ve-Hetter he-Arukh,9Issur ve-Hetter he-Arukh (Vilna, 5751), no. 59, sec. 35. Cf. also Hagahot Maimuniyot, Hilkhot Ma’akhalot Assurot 14:15. attributed to Rabbenu Yonah of Gerondi. Issur ve-Hetter he-Arukh cites a specific query addressed to an earlier authority, Maharam, concerning an epileptic who sought advice concerning the permissibility of partaking of a forbidden food reported to possess medicinal properties capable of curing his illness. The decision, in which Ramban acquiesces, is in the affirmative, provided that the efficacy of the remedy has been established. That decision is predicated upon a determination that epilepsy constitutes a danger to life since, at times, an epileptic may endanger himself by "falling into fire or water." R. Israel Meir Mizrachi,10Cf., Piskei Teshuvah, ed. R. Abraham Pieterkovsky (Pietrokow, 5693), II, no. 261. Teshuvot Pri ha-Arez, III, Yoreh De'ah (Jerusalem, 5665), no. 21, relies upon the decision of Ramban in ruling that insanity also constitutes a danger to life and accordingly permits an abortion when it is feared that the mother may otherwise become mentally deranged. Rashba, cited by Bet Yosef, Yoreh De'ah 228, also regards mental incompetence as life-threatening in nature.11Cf., Teshuvot ha-Rashba ha-Meyuḥasot le-ha-Ramban, no. 281; Magen Avraham, Oraḥ Ḥayyim 554:8 and Pri Megadim, ad loc. This position is also adopted by R. Mordecai Winkler, Teshuvot Levushei Mordekhai, Hoshen Mishpat, no. 39, who is cited by R. Waldenberg, Ẓiz Eli'ezer, IX, no. 51, sha'ar 3, chap. 3, sec. 9. Other authorities, including Teshuvot Admat Kodesh, I, Yoreh De'ah, no. 6; Teshuvot Pri ha-Arez, II, Yoreh De'ah, no. 2; Birkei Yosef, Shiyurei Berakhah, Yoreh De'ah 155; Teshuvot Nezer Mata'ai, I, no. 8; Iggerot Mosheh, Even ha-Ezer, I, no. 67; Ẓiz Eli'ezer, IV, no. 13, sec. 3; and R. Yosef Shalom Eliashiv, as cited by R. Yitzchak Zilberstein, Assia, no. 42-43 (Nissan 5746), pp. 26f., also maintain that mental incompetence constitutes a threat to life.12Cf., however, R. Iser Yehudah Unterman, Ha-Torah ve-ha-Medinah, IV, 27, who argues that the instinct for self-preservation is so deeply ingrained and suicide so rare that a suicide complex cannot be considered to be within the category of illnesses that endanger life. That assumption is quite evidently regarded as contrafactual by the many authorities who adopt an opposing view. See also this writer’s Contemporary Halakhic Problems, I (New York, 1977), 363.
Blood-Sugar Tests
1. The Shabbat Problem
Drawing blood on Shabbat is ordinarily forbidden. According to Rashi, Shabbat 107a, and most other early-day authorities, the prohibition is classified as a form of "slaughter," one of the thirty-nine paradigmatic categories of labor prohibited on the Sabbath. Scripture declares, "for the blood is the life (nefesh)" (Deuteronomy 12:23), and hence removal of any quantity of blood is, halakhically speaking, tantamount to extinguishing a measure of "life." According to Rambam, Hilkhot Shabbat 8:7, drawing blood is categorized as a derivative form of "threshing," another of the prohibited categories of labor. Threshing involves extracting a kernel from its husk. Removal of blood, according to Rambam, is similar in that it involves expressing blood from the tissues in which it is imbedded.
Accordingly, drawing blood on Shabbat is sanctioned only if necessary for the treatment of someone suffering, or possibly suffering, from a life-threatening illness. Untreated or insufficiently treated diabetes is certainly an illness of that nature. Crucial in the treatment of diabetics is regulation of blood sugar levels. Since a diabetic's body either does not produce insulin, as in Type I diabetes, or cannot process the insulin that is produced, as is the case in Type II diabetes, the diabetic's blood sugar levels are likely to fluctuate much more widely than those of a healthy person. Current medical practice calls for taking blood samples periodically during the course of the day, particularly before meals, in order to titrate the amount of insulin or other medication required to achieve optimum blood sugar levels. Patients are trained to draw small quantities of blood and to perform a simple blood analysis themselves.
Diabetics whose insulin is insufficient for their caloric intake are at risk for developing life-threatening effects of hyperglycemia, including diabetic coma. Those whose dose of insulin is too high for the quantity of calories they have consumed are in danger of potentially life-threatening hypoglycemia that can result in insulin shock. Indeed, the halakhic discussions of glucose testing on Shabbat focus upon the immediate dangers. However, from the halakhic perspective, the danger must be defined far more broadly.
It is certainly true that lack of precision in determining dosages, particularly over a short period of time, poses no imminent danger to the patient. Deleterious effects of minor increases of blood sugar are unlikely to become manifest until after the passage of time. However, the nature of diabetes is such that, barring a supervening illness or accident, the diabetic's longevity anticipation will be shortened as a result of complications of that disease. The effects of higher than normal blood sugar are cumulative. Medical science has not established a threshold of safety for fluctuation of blood sugar or a time span within which such fluctuation is innocuous.
Accordingly, it seems to this writer that any act designed to achieve an optimal blood sugar level for even a minimal period of time is in the category of possible pikuaḥ nefesh and hence is not only permitted but is mandatory on Shabbat as well as on weekdays.
In practical terms, the result is that a diabetic is required to perform the necessary blood test as often as recommended by his or her physician. Of course, a rabbinic authority knowledgeable in the technical aspects of the testing procedure should be consulted for advice with regard to minimizing the nature of the Sabbath infractions involved.13A symposium devoted to the proper methods to be employed in performing blood tests on Shabbat in order to minimize the severity of the infraction was published in the Tevet, 5763 issue of Or Yisra’el (vol. 8, no. 2). That symposium also addresses the issue of whether intake of carbohydrates should be minimized in order to reduce the number of blood tests required during the course of the Sabbath.
R. Shalom Elyakim Berkowitz, Or Yisra’el, ibid., p. 36, notes that many authorities maintain that rabbinic prohibitions are hutrah, i.e., entirely suspended, when permitted for a sick person. See R. Meir Arak, Teshuvot Imrei Yosher, I, no. 185; Teshuvot Emunat Shmu’el, no. 47, p. 47, s.v. ve-hineh and ibid., appendix, kelalim 21:8; R. Yo’av Yehoshu’a Weingarten, Teshuvot Ḥelkat Yo’av, Oraḥ Ḥayyim, no. 14, s.v. akh; Derekh ha-Melekh, Hilkhot Shabbat 6:9, sec. 1; Teshuvot Avnei Nezer, Oraḥ Ḥayyim, I, no. 118, sec. 5; and R. Eli’ezer David Grunwald, Teshuvot Keren le-David, no. 70, s.v. me-attah. See also Teshuvot Ḥesed le-Avraham, Mahadura Tinyana, Oraḥ Ḥayyim, no. 67. Since blood should be drawn with a shinuy, i.e., in an “unusual” manner, thereby rendering the infraction rabbinic rather than biblical, the number of times blood must be drawn need not be minimized according to this view. The sole remaining halakhic issue is whether, in drawing blood, the patient may extract only the minimum quantity of blood necessary for analysis or whether the amount of blood removed in the performance of a single act is irrelevant. There are multiple self-use kits available for this purpose. Some draw more blood than others. Assuming, as is likely the case, that all are equally efficacious, is the patient obligated to use a device, or method, that results in removal of the least possible quantity of blood? That issue is addressed in a number of contributions to Assia, no. 73-74, Nisan 5764 (vol. 19, no. 1-2).
The most commonly used method of obtaining a blood sample is by means of a finger prick. The blood that is released is placed on a testing strip. The strip is then placed into a processing device that measures and announces the blood sugar level.
Since receiving F.D.A. approval late in the year 2000, a device has been available that accomplishes lancing, blood collection and glucose testing with a single press of a button. The device employs a vacuum mechanism that holds the skin in place while an integrated apparatus lances the skin and automatically transfers the blood to a bio-sensor strip that tests the blood and records the result. This device has the advantage of causing significantly less pain than traditional finger-stick testing and also requires only a minute quantity of blood. A survey of various self-testing devices of this material presently marketed in the United States indicates that the amount of blood drawn varies between .6 microliters and four microliters. Standard type lances are much cheaper but draw more blood than necessary.
In his article in Assia, Rabbi Menasheh Klein astutely draws attention to the fact that an issue exists with regard to the proper procedure to be followed on weekdays as well as on Shabbat. Drawing blood constitutes "wounding" and is forbidden other than for therapeutic purposes. The Gemara, Sanhedrin 84b, indicates that, even in a medical context, "wounding" beyond that which is therapeutically necessary constitutes a transgression. Accordingly, Rabbi Klein asserts that drawing more blood than is necessary for diagnostic testing is forbidden.14Rabbi Klein states that he had earlier expressed this view in his Mal ve-lo Para (Brooklyn, 5744). The reference is presumably to netiv 24 of that work in which Rabbi Klein demonstrates that, as is readily apparent from Sanhedrin 84b, removal of more tissue than necessary, or extending an incision more than medically necessary, constitutes illicit “wounding.” Rabbi Klein regards drawing additional blood in the same light.
R. Meir Simchah ha-Kohen of Dvinsk, Or Sameaḥ, Hilkhot Shabbat 18:1, establishes a fundamental point with regard to Sabbath regulations. The general rule is that even when an otherwise forbidden act is sanctioned, e.g., for purposes of saving a life, it is forbidden to add to the quantity of a substance that is the subject of that act even if no additional physical act is required. Thus, on the Sabbath, if a limited quantity of soup is required for a patient, it is not permitted to add additional water to the pot even before the pot is placed on the stove. This is so despite the fact that only a single act of "cooking" is required regardless of whether the pot contains a large or small quantity of water. The concern is that, if adding food before the pot is placed on the fire is permitted, the cook may err in adding additional food in the pot after the pot has been placed on the fire. Placing a second quantity of food in a pot already on the fire constitutes an additional discrete act and, since not necessary for the purpose of preserving life, constitutes a biblical infraction. Placing more food in the pot than is required for the patient constitutes ribbuy be-shi'urin i.e., increasing the quantity of the substance upon which the forbidden act is performed.
Among the various categories of "labor" prohibited on Shabbat, many forms of "labor" result in culpability at the hands of the bet din only if the prohibited act is performed upon a minimum quantity of a substance. Accordingly, although cooking even a minimum quantity of a foodstuff is proscribed, there is no culpability unless a minimum quantity equal in weight to a grogeret, or dried fig, is cooked. According to Tosafot, Menaḥot 64a, s.v. shetayim, and Rashba, Hullin 15b, such acts are prohibited only by virtue of rabbinic decree. According to Rabbenu Nissim, Beizah 17a, the prohibition against ribbuy be-shi'urin is biblical in nature.
With regard to some forbidden forms of activity no minimum quantity or size is prescribed. Accordingly, "slaughter" or killing a live creature is cause for punishment by the bet din even if the creature is a mere insect. Or Sameaḥ asserts that there is no concept of ribbuy be-shi'urin, i.e., forbidden enhancement of quantity, with regard to forbidden forms of labor that require no minimum quantity or size for culpability. Accordingly, he asserts that when an animal must be slaughtered on behalf of a patient on Shabbat and two animals are available, one large and one small, there is no reason to slaughter the smaller, leaner animal rather than the larger.
Or Sameaḥ's position is in contradiction to the earlier published view of R. Joseph Babad, Minḥat Hinnukh, no. 32, Mosekh ha-Shabbat 39:2. When two animals are available, Minḥat Hinnukh regards the slaughter of an animal larger than necessary for the needs of the patient to be rabbinically forbidden even according to Rashba.15Minḥat Ḥinnukh’s position is also espoused by R. Joseph Chaim ben Eliyahu, Teshuvot Rav Pe’alim, I, Oraḥ Ḥayyim, no. 21; Arukh ha-Shulḥan, Oraḥ Ḥayyim 318:16; and Kaf ha-Ḥayyim, Oraḥ Ḥayyim 328:87. A similar rule exists with regard to cutting the branch of a tree bearing fruit when fruit is necessary for a patient on Shabbat. Plucking fruit, cutting a branch or otherwise severing vegetative matter from the ground to which it is attached constitutes a category of labor that is forbidden on Shabbat. In a situation in which a patient is in need of no more than two fruits and two branches are available, one bearing two fruits and the second three fruits, only the branch bearing two fruits may be severed despite the fact that the physical "labor" involved in severing the branch bearing a larger number of fruits is absolutely identical to the "labor" involved in severing the branch bearing a smaller quantity of fruit. The reason, asserts Kesef Mishneh, Hilkhot Shabbat 2:8, is that ribbuy be-shi'iurin is forbidden. In effect, each fruit is discrete and each is the subject of the prohibition against plucking; hence more fruit than needed may not be "plucked" even by means of severing the branch through a single act.
R. Zevi Pesach Frank, Teshuvot Har Ẓevi, Oraḥ Hayyim, no. 177, cites R. Meir Auerbach, Imrei Binah, Dinei Shabbat, no. 17, in distinguishing between severing a branch bearing two fruits rather than a branch bearing three fruits and slaughtering a heavier rather than a lighter animal and asserts that the rule applicable to the branches does not apply to the slaughter of an animal. Since an animal is an integral whole, argues Har Ẓevi, slaughter is always in the nature of a single act performed upon a single animal having the effect of extinguishing a single life regardless of the size of the animal.16Har Ẓevi disputes and rejects the ruling of Teshuvot Rav Pe’alim, I, Oraḥ Ḥayyim, no. 21, who asserts that even with regard to a single animal “the limbs are separate and stand separately” and therefore invokes the rule applicable to branches of a tree in forbidding the slaughter of the larger of the two animals. Consequently, Har Ẓevi permits the slaughter of the larger animal.17This is also the position of R. Shlomoh Zalman Margulies, Matteh Efrayim, Keẓeh ha-Matteh 618:14 and addenda and, as reported by R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd edition (Jerusalem, 5739), I, 32:29, note 90, was also endorsed by R. Shlomoh Zalman Auerbach. See also R. Eli’ezer Waldenberg, Ẓiẓ Eli’ezer, VIII, no. 15, sec. 6. Har Ẓevi similarly suggests that lighting a lamp containing more fuel than is necessary to satisfy the needs of the patient may also be permissible. The situation involving the lamp is more complex and involves additional considerations that are not relevant to this discussion.18Applying this principle, Ẓiẓ Eli’ezer, VIII, no. 15, sec. 6, permits a physician who must write a prescription for 10 pills, representing the dose to be administered on Shabbat, to write a prescription for 20 pills. His ruling is based upon the consideration that no additional letter or number need be written; the “labor” involved in writing a “2” is identical to that entailed in writing a “1.” Ẓiẓ Eli’ezer compares that situation to the slaughter of a larger animal rather than a smaller one.
Applying that controversy to the issue of drawing a greater than necessary quantity of blood on Shabbat, Rabbi Israel Rosen, writing in the same issue of Assia, concludes that, although according to Minḥat Hinnukh the permissibility of the procedure is questionable, nevertheless, according to Or Sameaḥ and Har Ẓevi, there is no reason to employ a procedure that would express a smaller quantity of blood. Rabbi Klein, however, dismisses that conclusion. Rabbi Klein understands Or Sameaḥ's thesis as applicable only to matters such as slaughter in which there is only a single life to be taken regardless of the size of the animal. "Wounding," he argues, even though it is a sub-category of "slaughter,"19See Magen Avraham, Oraḥ Ḥayyim, 316:15. can be performed repeatedly upon the same animal and hence, he argues, each drop of blood expressed represents a discrete transgression.
Rabbi Klein's argument seems to be flawed in the sense that it must have been impliedly rejected by both Or Sameaḥ and Har Ẓevi. Every act of slaughter also involves blood-letting. The blood of a large animal is certainly more copious than that of a small animal. If so, even though each animal, large or small, has but a single life, slaughter of the larger animal should be forbidden because, ipso facto, it also involves "wounding" of a quantitatively greater nature, i.e., the extraction of a larger quantity of blood, each drop of which constitutes a separate infraction. In failing to reach that conclusion Or Sameaḥ and Har Ẓevi must have reasoned that since "wounding" is a sub-category of "slaughter" there can be no ribbuy be-shi'urin with regard to "wounding" just as there is no ribbuy be-shi'urin with regard to "slaughter."
Putting that matter aside, Or Sameaḥ's thesis is advanced only with regard to forms of labor that demand no minimum quantity for purposes of liability. If, as Rambam maintains, "wounding" is prohibited as a form of "threshing,"20Rambam’s position is understood in this manner by Leḥem Mishneh, Hilkhot Shabbat 8:9; Minḥat Ḥinnukh, no. 32, Mosekh ha-Shabbat 5:3; and R. Meir Dan Plocki, Ḥemdat Yisra’el, Kuntres Ner Miẓvah, pp. 47b-48a. causing blood to flow in the course of slaughter should also be a form of "threshing." Since culpability for "threshing" requires a minimum quantity of a grogeret it should follow that ribbuy be-shi'urin with regard to "threshing" is prohibited21Rashi, Shabbat 107a, cites an opinion to the effect that “wounding” constitutes a form of “dyeing,” which also requires a minimum quantity for culpability. with the result that slaughter of a large animal on behalf of a sick person should not be warranted when slaughter of a smaller animal would suffice.22Rabbi Rosen’s comments in this regard are somewhat confusing. He seems to ignore the fact that Or Sameaḥ’s thesis is limited to forms of labor having no minimum shi’ur.
Rabbi Rosen does, however, raise an additional point that is both empirical and intriguing. The amount of blood expressed in utilization of any of the available methods is much lower than the minimum quantity of grogeret. Even assuming that an act involving a ḥazi shi'ur, i.e., a quantity insufficient to generate culpability, is biblically proscribed, the issue that seems heretofore not to have been addressed is whether there is a prohibition of ribbuy be-shi'urin when, in aggregate, the total quantity will remain below the shi'ur, or threshold, that gives rise to culpability.
The issue raised by Rabbi Rosen is germane only with regard to the Sabbath prohibition associated with drawing blood. It is not at all relevant with regard to the issue of "wounding" since punishment for violation of that prohibition is not contingent upon causing a fixed minimum amount of bleeding. In a brief communication, published in the same issue of Assia, R. Joshua Neuwirth, author of Shemirat Shabbat ke-Hilkhatah, dismisses the question of ribbuy be-shi'urin. He reasons that in applying a lance, the patient is, in effect, performing an act comparable to opening a faucet. In the latter case, other than the first gush of water, the resultant flow is automatic and only an indirect result of the act of turning on the spigot. The same is the case, asserts Rabbi Neuwirth, with regard to the flow of blood following puncture of the skin: pricking the skin allows pent up blood to flow of its own accord.23See, however, Magen Avraham, Oraḥ Ḥayyim 328:53, and R. Meir Auerbach, Imrei Binah, Dinei Shabbat, who maintains that use of a leech in bloodletting constitutes a direct act rather than gerama. Cf., R. Moshe Schick, Teshuvot Maharam Shik, Oraḥ Ḥayyim, no. 115. Rabbi Berkowitz, Or Yisra’el, ibid., p. 35, argues that, when a lance is utilized, the resultant flow of blood should be regarded in the same light as leeching. However, it may be the case that Magen Avraham maintains that it is only the blood drawn immediately by the bite of the leech that is the product of a direct act and hence only the first gush of blood following lancing would be regarded in that manner. Rabbi Rosen responds that, in point of fact, blood (often) does not flow of its own but requires application of pressure to express the required quantity of blood; hence, the issue of ribbuy be-shi'urin is germane.
Interesting, but apparently ignored, is a point that arises from Rabbi Neuwirth's analogy to opening a faucet. In that case, the initial gush of water as a result of built-up pressure is deemed a human act for all purposes of Halakhah. The ongoing flow is regarded to be in the nature of gerama, i.e., an act caused only indirectly. In the absence of proximate cause, such indirect acts are generally proscribed by rabbinic decree in all situations in which a direct act is biblically forbidden. The issue not addressed is whether there is a prohibition of ribbuy be-shi'urin with regard to acts in the nature of gerama.
2. Unnecessary "Wounding"
As previously noted, Rabbi Klein is adamant in his view that drawing more blood than necessary for diagnostic purposes is forbidden and accordingly draws attention to the common medical practice of filling relatively large vials with blood despite the fact that only a fraction of the quantity drawn is actually needed for blood tests.24Dr. Jocelyn Hicks, “Excessive Blood Drawing for Laboratory Tests,” New England Journal of Medicine, vol. 340, no. 21 (May 27, 1999), p. 1690, presents the results of a survey showing that community and university hospitals typically draw 2 1/2 to 7 times the amount of blood as do children’s hospitals for identical tests. Dr. Hicks theorizes that unnecessary quantities of blood are drawn because in years gone by when the practice was developed most instruments required large quantities of serum for analysis. Earlier, J. C. Dale and S. K. Pruett, “Phlebotomy: A Minimalist Approach,” Mayo Clinic Proceedings, vol. 68, no. 3 (March,1993), pp. 249-255, reported that a range of 2 to 102 times and a mean of 45 times the required volume required of diagnostic tests was obtained for a sample of 113 hospital patients.
The prohibition against “wounding” is not necessarily predicated upon concern for the health of a particular victim or patient. However, unnecessary drawing of more than minimal quantities of blood is not without risk. Phlebotomy is highly associated with changes in hemoglobin and hematocrit levels and can contribute to anemia. See Paaladinesh Thavendiranathan, Akshay Bagai, Albert Ebidia et al., “Do Blood Tests Cause Anemia in Hospitalized Patients: The Effect of Diagnostic Phlebotomy on Hemoglobin and Hematocrit Levels,” Journal of General Internal Medicine, vol. 20, no. 6 (June, 2005), pp. 520-524. Although blood loss from laboratory testing is not likely to pose a problem for most patients, blood loss is greater in intensive care patients and after cardiovascular surgery. Other risk groups include low-birth weight newborns, patients with already existing anemia and the elderly. See Dirk Wisser, Klaus van Ackern, Ernst Knoll et al., “Blood Loss from Laboratory Tests,” Clinical Chemistry, vol. 49, no. 10 (October, 2003), pp. 1651-1655. Obviously, internal bleeding and dehydration are additional risk factors. The proposed remedy is simply to use smaller tubes for drawing blood. See Jeannette O. Andrews, “A QI (Quality Improvement) Project to Reduce Nosocomial Blood Loss,” Dimensions of Critical Care Nursing, vol. 17, no. 2 (March-April, 1998), pp. 92-99 and Terry Rudisill, “Smaller Tubes Reduce the Volume of Blood Drawn,” Critical Care Nurse, vol. 22, no. 3 (June, 2002), pp. 96-95. The practice, he emphasizes, is forbidden on weekdays as well as on Shabbat. As noted earlier, Rabbi Neuwirth clearly disagrees because, in his opinion, the additional blood flows of its own accord. Although, again as noted, that is frequently not the case with the minute quantity of capillary blood obtained by means of a needle prick or by lancing, it is certainly true with regard to venous blood drawn for more extensive diagnostic purposes. Again, as stated earlier, it seems to this writer that causing flow of blood in that manner is in the nature of gerama that is rabbinically forbidden. This writer is unaware of any source that specifically addresses the issue of whether there is a prohibition of ribbuy be-shi'urin with regard to an act in the nature of a gerama. Even if ribbuy be-shi'urin represented a rabbinic rather than a biblical prohibition, such an act should nevertheless be prohibited even when performed indirectly. However, it would seem to be the case that it is permissible to direct a non-Jew to perform such an act. An act that would be permissible but for the cumulative effect of three separate rabbinic prohibitions remains permissible. In this case, the act would be forbidden only because of a conjunction of three distinct rabbinic prohibitions: 1) gerama is rabbinically forbidden; 2) ribbuy beshi'urin is rabbinically forbidden; and 3) instructing a non-Jew to perform a proscribed act is rabbinically forbidden. Hence, since rabbinic legislation does not forbid acts involving a configuration of three rabbinic decrees,25See Pri Megadim, introduction to Oraḥ Ḥayyim, Hanhagot ha-Sho’el veha-Nish’al 1:74. See also R. Mordecai Brisk, Teshuvot Maharam Brisk, I, no. 23. That position seems to be reflected in the comments of R. Ezekiel Landau, Dagul me-Revavah, Oraḥ Ḥayyim, Eshel Avraham 340:5, who advances this principle only tentatively. The principle is rejected by R. Henoch Pak, Zikhron Yosef, secs. 8 and 167. the act is not forbidden.
However, the prohibition against drawing excess blood on a weekday is not as clear-cut as it might seem. R. Moshe Feinstein, Iggerot Mosheh, Hoshen Mishpat, I, no. 103 and Oraḥ Hayyim, IV, no. 102, permits donations of blood to a blood bank on various grounds. Inter alia, he argues, the Sages regarded blood-letting not only as a therapy for various maladies but also regarded it as having prophylactic value.26As early as the fifteenth century B.C.E., Hippocrates asserted that bloodletting restored the harmony of the body’s humors. There are reports of bloodletting by English monks in 674 C.E. Bloodletting reached the height of its popularity in Europe between 1825 and 1835. Venesection, or bloodletting, does serve to reduce hypertension but any benefit is transient. Modern medicine has come to recognize the value of “therapeutic phlebotomy” in the treatment of a few relatively rare diseases. Among those are: polycythemia, a hematologic disorder characterized by an increased concentration of red blood cells; hemochromatosis, a hereditary disorder that causes the small intestines to absorb excessive amounts of iron; and porphyia cartenea tarfa (PCT), one of several conditions caused by an enzyme deficiency that are collectively known as porphyrias. PCT is caused by deficiency of an enzyme called uroporphyrinogen decarboxylase and exacerbated by exposure to toxic chemicals including Agent Orange and certain herbicides, alcohol and drugs such as estrogen and iron supplements. See Salena M. Wright and Jean Finical, “Beyond Leeches: Therapeutic Phlebotomy Today,” American Journal of Nursing, vol. 100, no. 7 (July, 2000) pp. 55-56, 58-59 and 61-63.
Use of leeches has also had a limited comeback in modern medicine. In the early years of the 20th century it was discovered that the mouth and throat of the leech contain a substance that prevents blood from coagulating. See R. T. Sawyer, “Leeches—New Role for an Old Medicine,” Ward’s Bulletin, Spring, 1986, pp. 1-4. The compound was isolated and named hirudin. However, with the advent of heparin, there is no longer significant reason to use leeches for that purpose. Beginning in the 1970’s medicinal leech therapy was introduced primarily for use in plastic and reconstructive surgery, postoperative venous congestion and graft rejection. Leech application often has a positive effect in treatment of superficial phlebitis and may improve the cosmetic appearance of spider-burst veins. The anti-inflammatory and circulation-enhancing effects of chemicals in leech saliva combined with blood and lymph drainage are of benefit in arthrosis pain management. The most valuable use of leech therapy is in preventing thrombosis or insufficiency of anastomosed arteries that may occur in corrective microsurgery. In such procedures, leeches serve to drain replanted or transplanted tissue. The most comprehensive study of leech therapy is Andreas Michalsen, Manfred Roth and Gustav Dobos, Medicinal Leech Therapy (New York, 2007). See also Michelle M. O’Hara, “Leeching: A Modern Use for an Ancient Remedy,” American Journal of Nursing, December, 1988, pp. 1656-1658.
Accordingly, Iggerot Mosheh concludes that blood donations are permitted because of their medical benefit to the donor. According to Iggerot Mosheh, filling a larger than necessary vial of blood when drawing blood for diagnostic purposes should be regarded simply as a form of bloodletting permitted by the Sages because of its potential health benefit. Rabbi Klein, consistent with his view regarding drawing excess blood for diagnostic purposes, regards donation to blood banks as prohibited although, presumably, he, too, would permit such donations in a situation of a ḥoleh le-faneinu, i.e., an imminent danger as that concept is expansively defined by Halakhah.27See J. David Bleich, Contemporary Halakhic Problems, IV(New York, 1995) 188-192.
Permissibility of drawing more blood than necessary would thus be subject to the dispute between Rabbi Klein and Iggerot Mosheh. Assuming that drawing more blood than is necessary constitutes illicit wounding, there is certainly cause for a Jewish physician, nurse or phlebotomist to be concerned with drawing blood in excess of the necessary quantity. However, it seems to this writer, that a Jewish patient need not protest if a non-Jewish health-care practitioner does so. The excess blood is neither drawn at the behest of the patient nor for his benefit. The benefit, if any, is convenience for the laboratory and for the person drawing the blood who wishes to avoid difficulties with his or her employer. Although the patient must cooperate and provide assistance in placement of the needle, there is no mesaye'ah or "assisting" in drawing the quantity that is in excess of medical need. At that point, the patient merely holds his or her hand rigid and provides no further active assistance.
Use of Viagra on Shabbat
The Sages prohibited many acts on Shabbat despite the fact that, in and of themselves, those acts involve no aspect of forbidden labor and are in no way inimical to the Sabbath spirit. They feared that engaging in such acts might, through excitement, confusion, overpowering desire etc., lead a person to desecrate the Sabbath, whether inadvertentently or knowingly, by performing a biblically proscribed act of labor. Thus, for example, the Sages severely limited the type and quantity of possessions that may be rescued from a burning building on Shabbat by removing them into a courtyard. Their concern was that, once rescue of property is countenanced, the prospect of loss of a significant portion of a person's fortune might engender emotional confusion that would prompt him to transport valuables into a public thoroughfare as well.
The prohibition against taking medication or engaging in therapeutic activity on Shabbat or Yom Tov is among rabbinic prohibitions of that nature. According to Rif, Shabbat 53b, and Rosh, Shabbat 5:3, the Sages feared that a person in pain or discomfort, if permitted to take medicine, might be led to pulverize the components used in compounding such medications. Hayyei Adam 69:1 explains that the prohibition is rooted in a concern that, if any type of medical treatment is permitted, an observer might infer that Sabbath restrictions, including the biblical prohibition involved in pulverizing medicaments, are suspended for all medical purposes even in the absence of danger to life.
Since even biblical restrictions are suspended in situations involving danger to life, no restriction against availing oneself of medication on Shabbat exists with regard to a patient afflicted with a potentially life-threatening illness or even of a malady that might cause permanent impairment. Nor did the Sages see fit to restrict medication or treatment of an even temporarily bedridden or incapacitated person. Essentially, the restriction is limited to individuals suffering mild discomfort or pain that is not incapacitating in nature.
Contemporary reality makes it difficult to appreciate the concern that prompted a rabbinic enactment limiting therapeutic measures on Shabbat. Although, on occasion, a pill may be crushed and mixed with applesauce or the like, in our day, virtually no consumer of pharmaceuticals has ever compounded a medication and consequently there is scant reason to fear that a patient may be prompted to crush medicinal ingredients. Even pharmacists are no longer apothecaries. Pharmacists dispense medications that have been produced in bulk quantities by pharmaceutical companies. As a result, neither the patient, the care-giver nor the health-care professional in personal contact with the patient has occasion inappropriately to crush or pulverize medicines on Shabbat. The concern prompting promulgation of this rabbinic decree has largely lapsed.28Cf., R. Abraham Chaim Noe, Keẓot ha-Shulḥan, VII, no. 134; Badei ha-Shulḥan, sec. 7; and R. Noah Siegel, Teshuvot Olat Noaḥ, no. 3; and Ẓiẓ Eli’ezer, VIII, no. 15, chap. 15, secs. 2-4. Nevertheless, the decree remains in force and is fully binding until rescinded by a court "larger in number and wisdom" than the court that enacted the decree originally.
Sildendfil, marketed by Pfizer Pharmaceuticals under the name Viagra, is the first Food and Drug Administration approved oral pill for treatment of impotence. Use of Viagra on Shabbat is addressed by Rabbi Joel Catane in the earlier cited issue of Assia, Nisan 5764. Rabbi Catane points to a series of considerations that serve to render use of erectile dysfunction remedies permissible on Shabbat. Those considerations merit careful examination.
Viagra does not cause penile erections directly. Rather, Viagra acts by enhancing the effect of nitric oxide that is normally released in response to sexual stimulation. Viagra removes impediments to the smooth muscle relaxant effects of nitric oxide which, in turn, allows increased blood flow into the areas necessary to cause and sustain an erection.29Side effects may include headache, flushing, indigestion and changes in vision, principally altered vision perception and blurred vision caused by a decrease in blood flow to the optic nerve and possibly also a sudden decrease or loss of hearing. In combination with organic materials, Viagra may cause a sudden, unsafe drop in blood pressure that can lead to fainting, stroke or a heart attack and hence is contraindicated for any patient taking certain medications including nitroglycerine. Sildenafil is also marketed under the brand name Revatio. Tadalafil, marketed as Cialis, has much the same effect and is accompanied by the same side effects. An erection is reversed when a chemical known as phosphodiesterase type 5 (PDE5) breaks down the chemicals that caused the muscles to relax in order to accommodate an increased flow of blood. Cialis operates by flushing PDE5 and hence prevents contraction of the muscle tissue with the result that blood remains in the tissue for a longer period of time and prolongs the erection. A third FDA approved drug, Levitra, is similar to Cialis.
On first analysis, it might appear that erectile dysfunction remedies such as Viagra, Cialis and Levitra should not be categorized as medications within the ambit of the edict prohibiting use of medications on Shabbat by virtue of the fact that the person taking the medication suffers from no illness. The problem confronting a person seeking to avail himself of one of these pharmaceutical products is that he either cannot achieve an erection or cannot sustain an erection long enough to engage in intercourse. Yet, as codified by Mishnah Berurah 328:120, medications are forbidden, not only when they are designed to alleviate an underlying condition, but also when they are designed le-ḥazek ha-mezeg, i.e., to "strengthen," enhance or promote ongoing "pharmacological balance" or good health. Of course, even ordinary food is designed to achieve that goal. The rule of thumb is that whatever constitutes a ma'akhal bari, or "food of a healthy person," i.e., a substance that would be consumed by a normal person for its nutritional value in the absence of a particular health concern, is permitted whereas a substance that would not ordinarily be consumed by a healthy person is forbidden. A food that would be eaten by a healthy person may be eaten by a sickly individual even though the latter's purpose in consuming such food is therapeutic in nature.30Cf., however, Magen Avraham 328:43 who permits use of such substances only if imbibed by the patient to satisfy hunger, to slake thirst or to satisfy desire. Cf., Mishnah Berurah 328:120 and 328:121. Magen Avraham’s view is rebutted by Eglei Tal, Melekhet Toḥen, sec. 47; Torat Shlomoh 328:49; and Bi’ur Halakhah 328:36. See also Ẓiẓ Eli’ezer, XIV, no. 50, sec. 2. Understood in this manner, use of erectile dysfunction remedies is certainly problematic: Young, virile men have no need for a pharmaceutical stimulant. The medication is designed to increase blood flow to the penis, a goal which, even if it is not to be characterized as the cure of a malady, is certainly in the nature of a measure intended le-ḥazek ha-mezeg, i.e., to restore physical prowess and performance. Thus, even if Viagra or the like is not a "medicine," that serves to cure a physiological disorder, it is nevertheless not a ma'akhal bari and hence may well be prohibited on Shabbat.
There may, however, be other grounds that would serve to exclude use of erectile dysfunction medications from the ambit of the prohibition against use of medicine on Shabbat. There are a host of authorities who rule that a medicine that must be taken over a period of several days may be utilized on Shabbat as well. The earliest authority to permit such medications is R. Shlomoh Kluger, Sefer ha-Hayyim 328:1,31This was also the view of Ḥazon Ish and R. Ya’akov Yisra’el Kanievsky. See sources cited by R. Joshua Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd edition, I, 34:17, note 79 and R. Abraham ha-Levi Hurwitz, Orḥot Rabbenu ha-Kehillot Ya’akov, I, no. 214, pp. 155f. That position is also accepted by Iggerot Mosheh, Oraḥ Ḥayyim, III, no. 53.
Sefer ha-Ḥayyim’s view is disputed by R. Shalom Mordecai Schwadron, Da’at Torah, Oraḥ Ḥayyim 328:36. See also idem, Hagahot Maharsham, Orḥot Ḥayyim 328:27. R. Moshe Stern, Teshuvot Be’er Mosheh, I, no. 33, sec. 7, follows the position of Da’at Torah. See also Ẓiẓ Eli’ezer, VIII, no. 15, chap. 15, sec. 15. In light of Rambam’s ruling cited herein, it would appear that the controversy between Sefer ha-Ḥayyim and Da’at Torah is limited to situations in which the earlier illness will not again became manifest if the medication is interrupted on Shabbat.
It should be noted that in a later work, Shenot Ḥayyim, I, no. 152, sec. 5, R. Shlomoh Kluger reiterates his earlier recorded “commonly known leniency” but declares that it applies only if the illness has not dissipated (lo pasak) before Shabbat; apparently, then, if symptoms of the illness are no longer present, the medication may not be continued on Shabbat. However, as evident from Rambam’s rulings, if discontinuation of the medication will cause a new outbreak of the illness, the medication may be continued. If so, there may be no controversy between Da’at Torah and Sefer ha-Ḥayyim. Cf., however, Ẓiẓ Eli’ezer, VIII, no. 15, chap. 15, sec. 16, who apparently assumes that Da’at Torah forbids continuation of medication on Shabbat even in such circumstances.
Moreover, in Kinat Soferim, II, Hashmatot le-Shnot Ḥayyim, no. 125, R. Shlomoh Kluger clarifies his position in stating that he had permitted only medicinal potions that can be eaten or imbibed but would not ordinarily be consumed by healthy persons. A person already availing himself of such a therapy, since he is aware of his need before Shabbat, will prepare his medications in advance; thus there is no fear that he will pulverize the medicaments on Shabbat. Other forms of therapy, he rules, are forbidden on the Sabbath under all circumstances because of a separate consideration, viz., “shema yimraḥ,” lest he reduce a medicinal substance by smearing. When such a consideration pertains, it cannot be obviated by advance preparation. That comment is also included in Rabbi Kluger’s Shnot Ḥayyim, no. 152, addendum to sec. 4. who states that this is a commonly known leniency (margela be-puma de-insha). R. Joshua Neuwirth cites Rambam's rulings, Hilkhot Shabbat 21:22 and 22:7, to the effect that one who drinks a potion known as haltit for medicinal purposes several days before Shabbat may continue to do so on Shabbat. Indeed, as reported by R. Abraham ha-Levi Hurwitz, Orḥot Rabbenu ha-Kehillot Ya'akov, I, no. 214, pp.155f., Hazon Ish goes beyond the position of other authorities in ruling that, in such circumstances, even the initial dose may be taken on Shabbat.32The source of this ruling, the Gemara, Shabbat 140a, permits use of medication on Shabbat, at least under some circumstances, when the medication had previously been used on Thursday and Friday. Rambam, Hilkhot Shabbat 22:7, codifies the rule in that manner. However, in Hilkhot Shabbat 21:22, Rambam states only that “If he drank haltit before Shabbat he may continue drinking it on Shabbat.” Cf., Ẓiẓ Eli’ezer, ibid., sec. 16. There seems to be no explicit source in the writings of early-day authorities permitting commencement of therapy on Shabbat. In Hilkhot Shabbat 22:7 Rambam adds the qualifying phrase "so that he not become ill if he interrupts drinking." Apparently, the reason for this exclusion from the prohibition is that the Sages sought only to forbid use of medication by a person suffering mild pain or discomfort but did not seek to include in their edict those who are ill, even if not severely so. Requirement of medication over a period of days was probably assessed as being an indication of illness rather than mere discomfort (meiḥush).33See Orḥot Rabbenu, I, no. 214, pp.155f. Cf., R. Shlomoh Kluger, Sefer ha-Ḥayyim 328:6; who asserts that a person requiring medication for a period of days prepares a sufficient quantity in advance and hence has no reason to pulverize ingredients on Shabbat. Ẓiẓ Eli’ezer, VIII, no. 15, chap. 15, sec. 15, refutes that view and ibid., sec. 17, offers the unlikely explanation that only a person who believes that medication will cure him the same day will be likely, in his agitation or excitement, to pulverize medicaments.
Ingestion of erectile dysfunction medication is not necessary on a daily or periodic basis. Nevertheless, Rabbi Catane suggests that the need for such medication in conjunction with every occasion of coitus is similarly an indication of sickness rather than mere discomfort. That argument is not persuasive for two reasons: 1) Rambam's phraseology in Hilkhot Shabbat 22:7 seems to indicate that the crucial factor is that interruption of the medication on Shabbat would frustrate the benefit of weekday administration of the medicine by causing the earlier illness to express itself anew. That explication of this rule reflects the incident reported by the Gemara, Shabbat 140a, which serves at the basis of the ruling.34See Ẓiẓ Eli’ezer, VIII, no. 15, chap. 15, sec. 16 and Teshuvot Be’er Mosheh, I, no. 33, sec. 7. As recorded in that discussion, R. Hiyya ben Avin was permitted to continue taking medication on Shabbat with the explanation that failure on his part to do so would make him ill. Erectile dysfunction medication does not "cure" an underlying malady and hence its interruption does not negate the benefit of earlier doses. 2) The leniency formulated by Sefer ha-Hayyim does not seem to apply to a person who suffers from (mild) headaches intermittently. Typically, such a person takes an aspirin when he experiences a headache but does not do so prophylactically or to prevent a recurrence. Such an individual would not be permitted to take aspirin on Shabbat because each headache is a new episode.35Cf., however, the controversial ruling of R. Yonatan Steif regarding use of aspirin on Shabbat, cited by Be’er Mosheh, I, no. 33, sec. 5, II, no. 32 and VI, no. 39. See R. Abraham Chaim Noe, Keẓot ha-Shulḥan 138:31; R. Jacob Breisch, Teshuvot Ḥelkat Ya’akov, IV, no. 41; and R. Yitzchak Ya’akov Weisz, Teshuvot Minḥat Yiẓḥak, II, no. 35, who rule that the usual regulations governing use of medications on Shabbat apply to aspirin as well. Viagra and other erectile dysfunction medications are similar in that they are used to cause or to sustain an erection whenever such physical prowess is desired. That effect is certainly in the nature of le-ḥazek ha-mezeg, i.e., achievement of more optimal physical function. A patient experiencing sexual dysfunction does not become sexually rejuvenated as a result of taking the medication over a period of time, which might render taking the medication on Shabbat permissible. Rather, the medication is used on an ad hoc basis to facilitate intercourse just as aspirin is used to alleviate an intermittent headache.
Rabbi Catane finds other grounds to permit Viagra and the like in the rulings of Ẓiz Eli'ezer, XIV, no. 50, sec. 5, regarding tranquilizers and Teshuvot Be'er Mosheh, I, no. 33, sec. 19, and VI, no 39, with regard to stimulants used to prevent drowsiness. In both cases there is neither an underlying physical malady nor is the drug designed to "strengthen the constitution." As recorded by Shulḥan Arukh, Oraḥ Hayyim 328:37, a person suffering from no illness may avail himself on Shabbat of a substance not normally consumed by a healthy person. Rabbi Catane argues that Viagra should similarly be permitted since it does not function as a cure or as a means of "strengthening the constitution." However, the comparison does not seem apt since the purpose of an erectile dysfunction remedy is clearly to "strengthen the constitution," i.e., to sustain penile erection in a person otherwise incapable of doing so. It is of interest to note that Rabbi Catane cites a personal communication to him from Rabbi Neuwirth in which the latter apparently takes issue with the permissive rulings of Ẓiz Eli'ezer and Be'er Mosheh regarding tranquilizers and stimulants. It should also be noted that in sec. 13 of the summary appended to Ẓiz Eli'ezer, VIII, no. 15, Rabbi Waldenberg without explanation forbids use of stimulants to prevent sleep.
A much stronger argument cited by Rabbi Catane was earlier advanced by Dr. Abraham S. Abraham with regard to penile injections on Shabbat prior to intercourse. Although painful and cumbersome, the purpose of such injections is the same as that of Viagra, viz., to cause the blood vessels to become engorged in order to make erection possible. Dr. Abraham's argument permitting penile injections is based upon another exclusion from the prohibition against medical treatment on Shabbat. Even in situations in which there is no threat to life, treatment is permissible if failure to treat will result in loss or dysfunction of an organ or limb (sakkanat ever). Kezot ha-Hoshen, Badei ha-Shulḥan 138:18, and Shemirat Shabbat ke-Hilkhatah 33:1, in a gloss appended to sec. 5, rule that this exclusion applies even if foregoing treatment will result in only partial dysfunction of the organ, e.g., failure to set a fracture will not render the person lame but will result in a limp that will compromise function of the foot. Thus, Rabbi Neuwirth is cited in Nishmat Avraham, IV, introduction to Oraḥ Hayyim 328, sec. 4, as permitting fertility treatments on Shabbat on the grounds that inability to conceive represents dysfunction of the reproductive organs and hence constitutes sakkanat ever.36See also Teshuvot Ḥelkat Ya’akov, III, no. 23. Be’er Mosheh, I, no. 33, sec. 8, permits fertility medication on Shabbat for a completely opposite reason. Although his view is certainly subject to dispute, Be’er Mosheh asserts that failure to conceive does not constitute a malady within the ambit of the prohibition against therapeutic treatment on Shabbat; hence, as noted earlier, treatment is permitted since medications are permitted to an entirely healthy person.
However, at least in cases in which the patient is not completely impotent, the application of this thesis to penile injections or to ingestion of Viagra and the like, is not as strong as it might appear. The terminology employed by the codifiers of this rule is "sakkanat ever" or danger to an organ. The concern reflected in this exclusion seems to be the threat of permanent loss or dysfunction resulting from non-treatment. Thus loss of a foot, lameness and inability to bear children each represents an irreversible loss. Reproductive organs are designed for procreation. Although fertility treatment does not restore those organs to ongoing normalcy, such treatment serves to bring the raison d'être of those organs to actualization by making pregnancy possible.
However, there is no evidence indicating that transient dysfunction constitutes sakkanat ever or that enhancement of the function of a limb or organ is permitted. Thus, for example, medical treatment for a sprain that results only in temporary lameness does not seem to be encompassed within this category. Similarly, it is not at all apparent that a person rendered lame by a sprain but who, hypothetically, can walk for a brief period of time after being injected with steroids, might avail himself of such treatment on Shabbat. No "danger" to the limb is forestalled by such treatment. Temporary dysfunction of an organ certainly does not constitute sakkanat ever; hence, restoration of such function does not seem to constitute a remedy for sakkanat ever. A medication that would entirely reverse impotence would certainly be permissible on Shabbat. However, Viagra does not do so; it only makes sustained erection possible for a limited period of time.37Use of medication for temporary reversal of male infertility would be comparable to female fertility treatment designed to restore the function of reproductive organs and thus make childbearing possible, at least while the hormone regimen is followed. Nor does failure to use Viagra for any period of time compromise its future efficacy as a treatment for impotence.
The strongest argument advanced by Rabbi Catane in support of the permissibility of use of Viagra and similar medications on Shabbat is based upon a responsum of R. Yitzchak Ya'akov Weisz, Teshuvot Minḥat Yizḥak, I, no. 108. Minḥat Yizḥak permitted a husband to take medication before and after intercourse "so that he not be harmed" by intercourse. Presumably, in the case brought to his attention, nitroglycerin was prescribed for a patient suffering from angina in order to dilate the cardiac vessels so that they might accommodate without danger the more rapid blood flow that results from exertion during intercourse.
Minḥat Yizḥak's ruling is based on the principle that a non-Jew may be instructed to perform a rabbinically forbidden act on Shabbat if such is necessary in order to fulfill a mizvah. As recorded in Shulḥan Arukh, Oraḥ Hayyim 140:11, intercourse is not permitted in an illuminated room. On Shabbat, when a lamp cannot be extinguished, Hayyei Adam, Hilkhot Shabbat 29:4, rules that it is also forbidden to interpose a "wall" between the lamp and the couple in order to block the light. This is forbidden even though construction of a "temporary wall" is only rabbinically proscribed. Nevertheless, a non-Jew may be requested to put a temporary wall in place on the basis of the principle that it is permitted to instruct a non-Jew to perform a rabbinically proscribed act in order to facilitate fulfillment of a mizvah, in this case, fulfillment of conjugal obligations. Minḥat Yizḥak cites Teshuvot Radvaz, III, no. 640, in demonstrating that availing oneself of medication on Shabbat is an infraction of lesser severity than commanding a non-Jew to perform a rabbinically proscribed act of labor. Hence, he argues, if ordering a non-Jew to perform such an act in order to fulfill a mizvah is permitted, a fortiori, taking medication must also be permissible for the purpose of fulfilling a mizvah. Minḥat Yizḥak's ruling is endorsed by Ẓiz Eli'ezer, VIII, no. 15, chap. 15, sec. 14, and is cited by Nishmat Avraham, I, Oraḥ Hayyim 321:11, note 3. A similar ruling based on the same source was issued by Be'er Mosheh, I, no. 33, sec. 9 and reiterated in volume VI, no. 39 of the same work.
However, Rabbi Neuwirth, Shemirat Shabbat ke-Hilkhatah, 2nd edition (Jerusalem, 5739), I, 33:20, note 81, apparently regards any act performed by a person himself, including taking medications on Shabbat, as a more severe infraction than the infraction involved in directing a non-Jew to perform a forbidden act.38See also Nishmat Avraham, I, Oraḥ Ḥayyim 321:2. Nevertheless, on the basis of the clear rulings of Minḥat Yizḥak, Ẓiz Eli'ezer and Be'er Mosheh, and in light of the somewhat tentative nature of Rabbi Neuwirth's comment, the weight of opinion supports the conclusion that use of erectile dysfunction medications on Shabbat is permitted.