Proper estate planning includes drafting a health care proxy, which designates someone to make health care decisions on one’s behalf in case of incapacitation, and possibly a living will, which gives specific directions regarding end-of-life medical care. It is essential for every Orthodox Jew to sign at least the first of these documents, and possibly both, to ensure that he will be treated in accordance with Halachah vis-à-vis various medical issues. These issues include end-of-life medical care, defining death, organ donations, autopsy, burial, and other important matters. The halachic approach to these issues differs greatly from what is generally accepted in American society. Moreover, since many disputes exist regarding these Halachot, one must take steps to empower a Rav to render decisions on these matters. Rav Feivel Cohen (in a shiur delivered to the Council of Young Israel Rabbis) stated that he himself signed a health care proxy and expected others to follow his example. Failing to sign a halachically approved health care proxy and (possibly) a living will may make it difficult, or even impossible, to assure that one’s health care decisions will be made in accordance with Halachah.
In this essay, we shall discuss the various issues that arise when treating dying patients, and how health care proxies and living wills can help resolve those issues.
Directly Hastening Death
Halachah categorically forbids any form of active euthanasia. Indeed, the Shulchan Aruch (Y.D. 339:1) rules that anyone who hastens death, even in the slightest, is guilty of murder. One must therefore take great care not to accelerate death in any way when caring for an individual who is very close to dying (gosseis). For example, if touching the gosseis would hasten death, it is forbidden. Dr. Abraham S. Abraham (Nishmat Avraham 2:244) writes that one may not even administer routine hospital procedures to a gosseis, such as taking blood pressure and temperature, if these procedures will not help him survive, because even such standard procedures may precipitate death, and hence cannot be justified halachically if they do not directly benefit the patient. For similar reasons, Rav Hershel Schachter stated (at a symposium in 2006 sponsored by the Orthodox Union) that it is never permissible to remove a ventilator from a patient if doing so will cause death.1This appears to constitute the consensus rabbinic opinion; see Teshuvot Minchat Shlomo (2:82:2), Teshuvot Tzitz Eliezer (14:81), Rav Levi Yitzchak Halperin (Halachah Urefuah 2:146-168), and Rav Mordechai Willig (Beit Yitzchak 36:44-49). Rav Willig discusses the option, to be used only in very limited circumstances, of reducing the respirator to the rate of normal breathing and the percentage of oxygen to that found under usual conditions. Also see Teshuvot Tzitz Eliezer 13:89 and 14:81 regarding the propriety of placing a patient on a ventilator that is attached to a timer set to turn off automatically such that it will need to be restarted later.
Withholding Medical Treatment
Generally speaking, Halachah considers passive euthanasia comparable to active acceleration of death – the Shulchan Aruch (Y.D. 336:1) writes that one who withholds medical treatment “sheds blood.” Nevertheless, Halachah might allow for withholding certain treatments from a gosseis in extremely limited situations.2We must stress that this applies only to one who is near death. Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 1:91:24), for example, writes that all care must be given to a paralyzed individual even though he is greatly pained by his situation, would prefer death to his current state, and constitutes an enormous psychological and financial burden on his family. The Rama (ibid.) writes that one may, for instance, ask someone to stop chopping wood if the noise is keeping a deathly ill individual from dying. The Rama permits this because “This is not an action, but only the removal of an impediment [to death].”
Obviously, it is extremely difficult to distinguish between the categories of withholding treatment and removing impediments. Dr. Abraham S. Abraham (Nishmat Avraham 2:245-246) cites the following guidelines from Rav Shlomo Zalman Auerbach:
We must distinguish between treatments that fulfill a person’s basic needs or are accepted as routine, and treatments that are not considered routine. For example, Halachah forbids withholding oxygen or nutrition from a patient who is suffering from cancer that has spread throughout the body and [therefore] is near death, even though the patient is experiencing great pain and is suffering terribly. If he is diabetic, one may not withhold insulin from him with the intention that he die sooner. One may [also] not withhold blood or antibiotics that are necessary for his care. One may not withhold these treatments even if the intention in doing so is not to hasten the patient’s death. On the other hand, we are not obligated to administer non-routine and painful treatments, which serve only to lengthen life and do not cure the fundamental problem. This applies especially if the patient objects to such treatment because of the suffering he would be forced to endure as a result.
Dr. Abraham adds that if it is a hopeless situation, there is no obligation to revive a gosseis if doing so will merely serve to amplify his suffering. Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:73:1) essentially agrees with these guidelines.
Rav Shlomo Zalman (Teshuvot Minchat Shlomo 1:91:24) maintains that we withhold these extreme life-saving measures if so requested by the gosseis. He adds that although this is permissible, it is preferable to explain to the patient that Torah philosophy advocates living as long as possible even if one experiences pain, as is indicated by the Mishnah in the context of a sotah3The Torah states that a sotah (woman suspected of adultery, see Bemidbar 5:11-31) who is found guilty will die a hideous death. However, if she has “merit,” Hashem will grant her a few extra years of life, during which she will slowly deteriorate and experience difficult illness. This indicates that it is preferable to die a slow and painful death rather than die immediately, as the Mishnah teaches that the extra years of life involving great suffering result from merit. (Sotah 3:4; also see Rambam Hilchot Sotah 3:20) and the Mishnah (Avot 4:22) that states, “One hour of teshuvah and good deeds in this world is better than all of the world to come.”4See, however, Ketubot 33b, Sotah 46b, Rashi’s comments to Shemot 15:5 s.v. Kemo Even, Teshuvot Igrot Moshe Y.D. 2:174:3, and Rav Hershel Schachter’s B’ikvei Hatzon 34 for situations in which it seems it is preferable to die immediately rather than suffer a prolonged, painful death.
As a proof to the permissibility of withholding treatment from a gosseis, Rav Moshe cites a passage in the Gemara (Ketubot 104a) that describes the end of Rabi Yehudah Hanasi’s life when he was near death and suffering greatly. His students persisted in tefillah, which kept him alive but did not cure his illness. Rabi Yehudah’s maidservant (described in the Gemara Rosh Hashanah 26b and Megillah 18a as a wise woman) threw a glass into the beit midrash to disrupt the tefillah, at which point Rabi Yehudah died. The Ran (Nedarim 40a s.v. Ein Mevakeish) approves of her actions and accordingly concludes that one may pray for the death of a gravely ill person who is suffering greatly and whom doctors are unable to heal.5One must exercise great caution before taking such a dramatic step, and a Rav must be consulted before engaging in such a tefillah (Chikekei Leiv 1 Y.D. 50). We should also note that Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:47) forbids praying for someone to die. He believes that the Ran does not constitute normative Halachah, as his idea is not presented by the Rambam, the Tur, or the Shulchan Aruch and its commentaries. Indeed, Rav Feivel Cohen mentioned that many gedolim, including the Chazon Ish, would not pray to prolong the life of someone suffering enormously from an incurable disease. Rav Moshe writes that the aforementioned ruling of the Rama regarding the removal of impediments to death is based on this Gemara and comment of the Ran.
Rav Zalman Nechemia Goldberg (Halachah Urefuah 2:169-180) and Rav Mordechai Willig (personal communication) agree that one may withhold certain treatments from a gosseis in accordance with the opinion of Rav Moshe and Rav Shlomo Zalman. The Steipler Rav (Krayna D’igrata 1:190) expresses his inclination toward the approach of Rav Moshe and Rav Shlomo Zalman, but he declines to issue a ruling on this matter.
We should note, however, that although Rav Moshe and Rav Shlomo Zalman agree that nutrition and oxygen never should be withheld from a patient,6Rav Mordechai Willig told me that he agrees with this approach; however, see Rav Hershel Schachter’s opinion, cited in Tradition 34:2:46. providing nutrition in certain limited circumstances may actually harm the patient.7Dr. Beth Popp raised this point at the OU-sponsored symposium. Thus, it is essential that a Rav consult the patient’s doctors and consider their input before rendering a decision.
Who Makes the Decision?
Rav Shlomo Zalman addresses a situation in which the patient is capable of making the decision. What should be done, however, if the patient is incapacitated and unable to communicate his will? Who decides his fate? Rav Hershel Schachter (at the OU-sponsored symposium), based on the opinion of Rav Moshe Feinstein (Teshuvot Igrot Moshe C.M. 2:74:2), stated that in such circumstances, the decision should be made by the patient’s family members, who should assess what the patient would want.8See also Teshuvot Melamed L’ho’il 2:104.
Rav Schachter cautioned, though, that it is very difficult to determine what the desire of the patient would be. Indeed, Rav Zev Schostak (Tradition 34:2:50) writes, “Regrettably, families all too often project their own fears and guilt when making medical decisions on behalf of their loved one. They feel they can no longer bear the emotional burden of the visits, the financial drain of high-tech medical care on their assets (or potential estate).” In addition, there is great potential for dispute among family members in discerning the patient’s will. The only way to make a good decision about this matter and to avoid family fights (whose damage may last for years) is for the individual to designate, in a properly drafted document, a health care proxy who will make decisions for him if he is incapacitated, and to explain to the person designated what he would want should such a situation arise (Heaven forbid). Because of the difficulty and halachic complexities involved in making such decisions, a competent Rav must be consulted in conjunction with drafting these instructions and making the actual decisions. In addition, such instructions should be reviewed and updated every few years, as people’s attitudes about such matters are subject to change.
We also should add that it is not always simple to obtain the accurate medical information necessary for making the awesome decision to withhold certain treatments from a gosseis. Many advise that one seek a second expert opinion before signing a “do not resuscitate” (DNR) order on a gosseis. One should not be intimidated by medical staff pressure not to seek a second opinion. Families who have signed a DNR order should be vigilant (and assertive, if necessary) in ensuring that their loved one receives proper care even after the DNR order has been signed.
We should also note that while Rav Yosef Shalom Eliashiv (cited in Nishmat Avraham 4:153) agrees that one may withhold certain treatments from a gosseis if he is suffering greatly and makes such a request, he also rules that if the patient is unconscious, even if he is defined as brain dead,9Rav Eliashiv emphatically rejects brain death as a definition of death (his responsum on the matter appears in Nishmat Avraham 4:148-150). “As long as it is not clear that he is suffering greatly, we are obligated to provide all medical treatment, including resuscitation, to extend his life.” However, Dr. Abraham S. Abraham (ibid.) cites Rav Shlomo Zalman Auerbach, who rules that “As long as the patient is in the end stage of his [terminal] illness, there is no obligation to undertake any action that will cause great pain, even if the patient is unconscious and is not suffering.” Similarly, Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:174:3) writes that even if the patient is unconscious and the doctors state that he no longer is capable of experiencing pain, one should not believe them, since it is possible that they are incapable of making such a determination.
Challenges to the Rulings of Rav Moshe and Rav Shlomo Zalman
Some authorities disagree with Rav Moshe and Rav Shlomo Zalman’s ruling. These authorities believe that one must prolong life under all circumstances, (see Teshuvot Tzitz Eliezer10The Tzitz Eliezer makes this exception: “If it is recognized that the time for the departure of the soul has arrived.” Under such circumstances, he does not require the administration of all medical treatments. 14:80 and Rav J. David Bleich’s Judaism and Healing pp. 134-145), forbidding caretakers to withhold any medical treatment from any patient. They argue that the Rama permits removing only a non-medical impediment, such as the woodchopper in the situation he addressed.
Rav Feivel Cohen stated (in a lecture to the Council of Young Israel Rabbis) that he agrees with this approach, noting that Halachah requires us to violate Shabbat in order to save someone even if he is expected to die very shortly (Shulchan Aruch O.C. 329:4 and Bei’ur Halachah ibid. s.v. Ela). Certainly, then, such efforts to extend the life of a terminally ill patient are required when it is not Shabbat. The Shulchan Aruch, discussing a case of someone on whom a building collapsed and presumably is experiencing great pain, rules that we are required to extend his life. Rav Cohen derived from this ruling that we must act boldly to extend someone’s life even if that person is experiencing great pain and little “quality of life.”11See, however, Tiferet Yisrael (Yoma 8:3 in Boaz), who explains that we remove the building debris from him because “One certainly reduces his pain even if he will now experience pain longer. Nonetheless, it is better for him to die slowly than to have his life shortened and die a painful death under the weight of the stones.” He argued, paradoxically, that even though the Ran permits praying for the death of one who is suffering greatly from an incurable illness, Halachah obligates one to undertake all measures to help save such an individual.
Rav Cohen noted that even Rav Moshe and Rav Shlomo Zalman would agree that in many circumstances, it is forbidden for a patient to sign a DNR order. Indeed, one must exercise great care, and consult his Rav before signing a DNR order, as some hospitals and doctors encourage (and sometimes even push strongly for) the signing of such orders when there is absolutely no halachic justification for doing so. Rav Cohen also stated that Rav Moshe’s ruling applies only if the patient is suffering to the extent that he would prefer to die rather than experience such pain.
In any case, experience teaches, as we mentioned above, that one must be absolutely certain that he has an expert medical evaluation before signing a DNR order, which might necessitate seeking a second expert opinion. Rav Cohen noted that Halachah obligates family members of gravely ill patients to ensure that health care providers are following hospital protocols when treating their loved ones. Unfortunately, some providers tend to neglect the needs of gravely ill patients who are close to death.
Accordingly, it is vital that one complete a health care proxy in which he clearly chooses and empowers a Rav to render an appropriate decision should the situation (God forbid) arise. Otherwise, it will be difficult to assert his rights to hospital administrators and health insurance providers.12Insurance providers might not cover end-of-life care that they believe to be unnecessary. If the patient left directions to provide halachically appropriate medical care until the end, however, the insurance providers are more likely to cover the costs. Moreover, a statement indicating one’s attitude toward receiving intensive end-of-life care can sometimes constitute an important component of a halachic authority’s decision in this area.13As noted, Rav Shlomo Zalman Auerbach and Rav Moshe Feinstein leave some of the decision-making power in the patient’s hands.
We should note, though, that a living will must be formulated with great care, as an improperly drafted living will might be used to deny necessary medical treatment.
Narcotics and Other Pain Relievers for Patients near Death
Narcotics or other pain relievers are commonly administered to relieve pain and suffering. This is especially true when doctors have given up hope of curing a patient who is near death. The question arises whether Halachah permits the administration of pain relief in circumstances in which the medication may hasten death.
Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 13:87) permits the administration of pain medication in such circumstances. He presents two reasons for this ruling. First, relieving pain is a legitimate medical objective,14For a discussion of this issue, see Rav J. David Bleich’s essay in Tradition (36:1:89-114). and Halachah permits caregivers to take risks in the attempt to heal a patient (see Ramban, Torat Ha’adam 2:43 in Rav Chavel’s Kol Kitvei Haramban). Hence, one may risk the life of the patient in an attempt to eliminate his pain. Second, the serious pain endured by the patient may itself cause harm or even death if left untreated. Thus, in some circumstances, pain relief may actually extend the life of the patient.
Rav Shlomo Zalman Auerbach (cited in Nishmat Avraham 2:246; also see Teshuvot Igrot Moshe C.M. 2:73:1) essentially agrees with this ruling, except for one application: administering morphine when a particular injection entails the risk of depressing the patient’s breathing. He permits administering morphine only when each shot will not by itself endanger the patient’s life. Rav Auerbach and Rav Waldenberg also insist that the morphine be administered solely for the purpose of pain relief, not as a backhanded form of euthanasia. The risk in many situations is minimal, so pain relief likely is permissible; however, the benefits and risks can vary considerably depending on the patient’s condition and the procedures to be followed. Because of the complexities involved in implementing these guidelines, it is vitally important to designate (in the health care proxy) a halachic authority who will consult with the attending physician and help decide which course of action should be followed in the patient’s particular circumstances.
Practical Considerations
One must account for a number of practical considerations when planning a living will to ensure that his intent to follow Halachah is respected. Separate documents should be signed for the living will and the health care proxy. The health care proxy alone, while effective to a certain extent, does not allow the patient to express whether he wishes to have extraordinary measures taken to prolong even minimal life in case of great suffering if he becomes a gosseis (Heaven forfend). It is also worth considering the option of merely filling out a health care proxy and subsequently writing an informal, non-binding document that is addressed to the proxy and to one’s Rav in which he expresses his feelings regarding the extension of life in case of enormous suffering and no hope for cure. Again, we must stress that one must be exceedingly careful to ensure that a living will does not prevent one from receiving proper medical care. In addition, as Rav Cohen noted, many of the standard forms of a living will are entirely incompatible with Halachah even according to Rav Moshe Feinstein and Rav Shlomo Zalman Auerbach’s standards outlined above. Thus, if one chooses to execute a living will, he must use utmost caution and receive competent rabbinic and legal guidance.
Each document should specify that health care decisions are to be applied in a manner consistent with Orthodox Jewish law (Halachah). One should clarify that a particular Rav, either selected by his agent or appointed by an organization, is authorized to resolve any halachic issues.
Attorney Martin Shenkman advises that it is critical to anticipate practical problems: if the Rav one names cannot be reached, who will address halachic issues? Several alternates should be listed in the document with several telephone numbers for each (home, office, and cellular). One should sign several original documents and distribute them to his doctor, his Rav, and his agent. He also should endeavor, although it is difficult, to discuss these issues in advance with family, the people named as agents, and his Rav. These discussions will enable those involved to better implement his wishes within the guidelines of Halachah. It will help them better anticipate how different circumstances may affect the person. One must be sure, though, that his oral instructions conform to his written decisions. His oral instructions should be clear and simple, leaving no room for ambiguity. Most importantly, these discussions, however difficult, will make the decision-making process less traumatic for the family if (God forbid) such a situation arises. One might also consider carrying a card identifying one’s health care proxy at all times. This helps assure that medical personnel will be able to contact the health care proxy in the event of an emergency.
Organ Donation
A proper living will specifies which organs, if any, one wishes to donate. Although the particulars are beyond the scope of this discussion, there are many areas of debate among halachic authorities regarding organ donation, including, first and foremost, whether Halachah defines brain death as genuine death. It is possible to contemplate the permissibility of donating a heart, lung, or liver15Kidneys, too, might be included in this list. only if brain death is considered halachic death, because currently, doctors can harvest these organs only from donors whose hearts are still functioning.16The Rabbinical Council of America’s Halachah Committee has devoted nearly two years to studying this issue and (as of this writing) is expected in the near future to issue rulings regarding the halachic propriety of organ transplants. These rulings are expected to include thorough discussions of the issues and extensive citations of classic and contemporary discussions of this question. It is anticipated that the rulings will become available at www.rabbis.org. In order to avoid family fights (with the potential for great acrimony), one should designate a Rav who will resolve such issues. Otherwise, family members are likely to become embroiled in a fight over which Rav should be consulted.
Conclusion
Rav Yisrael Meir Lau (in a responsum printed in Nishmat Avraham 4:155-156) writes that it must be strongly emphasized that in regard to the treatment of a gosseis, cases are not identical, and a halachic ruling in regard to one patient cannot be regarded as a precedent regarding another patient “even if the cases appear as identical as two drops of water.” Thus, we must emphasize in the strongest of terms that a competent Rav must be consulted regarding each and every situation of a gosseis. It is essential for everyone to execute a properly formulated health care proxy that facilitates such rabbinic consultation. One also should carefully consider executing a properly formulated and halachically valid living will. With proper planning, it is possible to ensure that even in the worst of situations, both Halachah and the will of the patient will be executed properly.