Author Archives: Dr. Fred Rosner

Dr. Fred Rosner

About Dr. Fred Rosner

Dr. Fred Rosner is Director of the Department of Medicine of the Mount Sinai Services at the Queens Hospital Center and Professor of Medicine at New York's Mount Sinai School of Medicine. He is a diplomat of the American Board of Internal Medicine and a Fellow of the American College of Physicians.

In Vitro Fertilization: Legal and Ethical Considerations

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

In a situation in which the husband produces far too few sperm with each ejaculate to impregnate his wife or where a woman is unable to move the egg from the ovary into the uterus because of blocked Fallopian tubes, the former Israeli Chief Rabbi Ovadiah Yosef gave his qualified approval to the in vitro [i.e. test tube] fertilization of the woman’s egg with the husband’s sperm and the reimplantation of the fertilized zygote or tiny embryo into the same woman’s womb. 

Another former Chief Rabbi, Shlomo Goren, asserted that conception in this manner is morally repugnant but legally unobjectionable.

This situation represents a type of barrenness akin to physical illness and, therefore, justifies acts which entail a small amount of risk, such as the procurement of eggs from the mother’s ovary by laparoscopy, a minor surgical procedure.

There is certainly no question of adultery involved, since the sperm used is that of the husband. Sperm and egg procurement for this procedure are permissible because the aim is to fulfill the biblical commandment of procreation. The offspring is legitimate and the parents thereby fulfill their obligation of having children.

Moral Considerations

However, certain serious moral and Jewish legal problems relate to this type of test‑tube baby. If one uses sperm other than that of the husband, objections exist. Furthermore, if one obtains several eggs from the mother’s ovary at one time and fertilizes all of them so as to select the best embryo for reimplantation, is one permitted to destroy the other fertilized eggs? Do they not constitute human seed and, therefore, should not be “cast away for naught”? Is one permitted to perform medical research on the unused fertilized eggs? What is the status of other fertilized ova in the test tube? Is the destruction of such fertilized ova tantamount to abortion? Is such a fertilized ovum regarded as “mere water” during the first forty days of its development?

Euthanasia: Medieval Sources

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

The twelfth‑century code of Maimonides treats our subject matter [of euthanasia] as follows:

"One who is in a dying condition is regarded as a living person in all respects. It is not permitted to bind his jaws, to stop up the organs of the lower extremities, or to place metallic or cooling vessels upon his navel in order to prevent swelling. He is not to be rubbed or washed, nor is sand or salt to be put upon him until he expires. He who touches him is guilty of shedding blood. To what may he be compared? To a flickering flame, which is extinguished as soon as one touches it. Whoever closes the eyes of the dying while the soul is about to depart is shedding blood. One should wait a while; perhaps he is only in a swoon."

Thus, we note the prohibition of doing anything that might hasten death. Maimonides does not specifically forbid moving such a patient, as does the Talmud, but such a prohibition is implied in Maimonides’ text. Maimonides also forbids rubbing and washing a dying person, acts which are not mentioned in the Talmud.

Finally, Maimonides raises the problem of the recognition of death, a problem becoming more pronounced as scientific medicine improves the methods for supporting respiration and heart function.

The sixteenth‑century code of Rabbi Joseph Karo devotes an entire chapter to the laws of the dying patient. The individual in whom death is imminent is referred to as a goses. Karo’s code begins, as do Maimonides and the Talmud, with the phrase "A goses is considered as a living person in all respects," and then Karo enumerates various acts that are prohibited.

All the commentaries use the concept "lest they hasten the patient’s death" to explain these prohibitions. One of the forbidden acts not mentioned by Maimonides or the Talmud is the removal of the pillow from beneath the patient’s head. This act had already been prohibited two centuries earlier [than Karo] by Rabbi Jacob ben Asher, known as Tur.

Karo’s text is nearly identical to that of Tur. The latter, however, has the additional general explanation: "the rule in this matter is that any act performed in relation to death should not be carried out until the soul has departed." Thus, not only are physical acts on the patient, such as those described above, forbidden, but one should also not provide a coffin or prepare a grave or make other funeral or related arrangements lest the patient hear of this and his death be hastened. Even psychological stress is prohibited.

On the other hand, thirteenth‑century Rabbi Judah ben Samuel the Pious states: "if a person is dying and someone near his house is chopping wood, so that the soul cannot depart, then one should remove the [wood] chopper from there."

Based on this ruling, Rabbi Moses Isserles, known as Rema, in his famous gloss on Karo’s code, asserts:

"…if there is anything which causes a hindrance to the departure of the soul, such as the presence near the patient’s house of a knocking noise, such as wood chopping, or if there is salt on the patient’s tongue, and these hinder the soul’s departure, it is permissible to remove them from there because there is no act involved in this at all but only the removal of the impediment."

Furthermore, Rabbi Solomon Eger, in his commentary on Karo’s code, quotes another rabbinic authority, who states "it is forbidden to hinder the soul by the use of medicines." Other rabbinic authorities, however, disagree with the latter view.

Rabbi Joshua Boaz Baruch, known as Shiltei Gibborim, pleads for the abolition of the custom of those who remove the pillow from beneath the dying person’s head, following the popular belief that the bird feathers contained in the pillow prevent the soul from departing. He further states that Rabbi Nathan of Igra specifically permitted this act.

Euthanasia: Jewish Biblical and Rabbinic Sources

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

In the Bible we find: Whoso sheddeth man’s blood, by man shall his blood be shed (Genesis 9:6). In the second book of the Pentateuch it is stated: Thou shalt not murder (Exodus 20:13), and in the next chapter, And if a man come presumptuously upon his neighbor, to slay him with guile: thou shalt take him from Mine altar, that he may die (Exodus 21:14). 

In the next book is the phrase And he that smiteth any man mortally shall surely be put to death (Leviticus 24:17), and four sentences later, And he that killeth a man shalt be put to death. In Numbers (35:30) it states: Whoso killeth any person, the murderer shall be slain at the mouth of witnesses. Finally, the sixth commandment of the Decalogue is repeated: Thou shalt not murder (Deuteronomy 5:17).

Thus, in every book of the Pentateuch, we find at least one reference to murder or killing. Accidental death or homicide is dealt with separately in the Bible and represents another subject entirely.

King Saul’s (Assisted) Suicide

Probably the first recorded instance of euthanasia concerns the death of King Saul in the year 1013 B.C.E. At the end of the First Book of Samuel, we find the following:

“Now the Philistines fought against Israel, and the men of Israel fled from before the Philistines and fell down slain in Mount Gilboa. And the Philistines pursued hard upon Saul and upon his sons; and the Philistines slew Jonathan and Abinadab and Malchishua, the sons of Saul. And the battle went sore against Saul, and the archers overtook him, and he was greatly afraid by reason of the archers. Then said Saul to his armor‑bearer: ‘Draw thy sword, and thrust me through therewith, lest these uncircumcised come and thrust me through and make a mock of me.’ But his armor‑bearer would not, for he was sore afraid. Therefore, Saul took his sword and fell upon it. And when the armor‑bearer saw that Saul was dead, he likewise fell upon his sword and died with him. So Saul died and his three sons, and his armor‑bearer, and all his men, that same day together (I Samuel 31:1-6).”

Genetic Diseases in Traditional Jewish Sources

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

Ancient Jewish writings, including the Bible and Talmud, are not devoid of material relating to genetics. One writer describes in some detail how the laws of Mendelian genetics were applied by Jacob in the biblical narrative (Genesis 30:32) of the speckled and spotted sheep (Y. Flicks, “Heredity and Environment,” Techumin, 1982). Hemophilia and its precise genetic transmission is described in the Talmud (Yebamot 64b). The sages in the Talmud and subsequent rabbinic authorities had a remarkable knowledge of the genetics of this sex‑linked disorder [and recognized] that females transmit the disease but do not suffer from it. A few rabbis also considered the possibility of its transmission through males.genetic screening 

Elsewhere (Ketubot 10b), the Talmud portrays a family whose women had hereditary absence of menstruation and no blood of virginity and were obviously childless. The exact nature of the anatomical or physiological abnormality is not described.

It is prohibited in Jewish law to marry a woman from a family of epileptics or lepers (Yebamot 64b; Maimonides’ Mishneh Torah, Issurei Biyah 21:30; Shulhan Aruch, Even Haezer 2:7) lest the illness be genetically transmitted to future generations. According to Rashi (Yebamot 64b), any hereditary disease is included in this category. This talmudic ruling “may well represent the first eugenic enactment, and the only legislative bar to the procreation of a diseased progeny, in ancient and even medieval times (I. Jakobovits, Jewish Medical Ethics).” On the basis of the higher frequency of defective births resulting from union among blood relatives, Rabbi Judah the Pious (died 1217), in his Ethical Will, prohibited marriages between first cousins and between uncles and nieces. Yet such marriages are sanctioned in the Bible and expressly encouraged in the Talmud (Yebamot 62b and Sanhedrin 76b), perhaps to propagate “good genes.” Since consanguineous marriages do not cause birth defects but merely increase their risk, most rabbis do not ban such marriages. Some rabbis, however, strongly caution against it.

Genetic disease was recognized by Maimonides who prescribes a regimen of health for all Jews, since one cannot serve the Lord when one is ill (Mishneh Torah, Deot 4:1). He guarantees anyone who follows his regimen that he will be healthy all his life unless he was born with a hereditary or genetic defect (ibid. 4:20).

The Genome Project and Jewish Law

The U.S. Human Genome Project was initiated in 1990 by the Department of Energy and the National Institutes of Health, with the aim of identifying the 30,000 genes in human DNA. Several maps of the human genome have already been completed. This research can be used in developing therapies to treat or cure genetic diseases. Though the author of this article endorses the project, and few thinkers question the potential therapeutic benefits of it, others are more skeptical. People like Richard Greenberg worry that society will overstate the significance of genetics and submit to a belief in genetic determinism in which one cannot be held responsible for ones own actions. Greenberg suggests that this would contradict Judaism’s belief in free will. Others, like Yitzchok Adlerstein, worry about the moral ramifications of moving procreation from the home to the laboratory. The following article is reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

genome projectIs the genome project an encroachment on the divine plan for this world by interfering with nature as God created it? Although one rabbi [Moshe Hershler] answers in the affirmative, most rabbis consider the acquisition of knowledge for the sake of finding cures for human illnesses to be divinely sanctioned, if not in fact mandated. God blessed mankind with the phrase: replenish the earth and subdue it (Genesis 1:28). This phrase is interpreted by Nachmanides (Ramban) to mean that God gave man dominion over the world to use animals and insects and all creeping things for the benefit of mankind. To subdue the earth, according to Rabbi Samson Raphael Hirsch, is to master, appropriate, and transform the earth and its products for human purposes. To have “dominion over the fish and over the birds and over every living thing on earth” (Genesis 1:28) means to use them for the benefit of mankind. The pursuit of scientific knowledge does not constitute prohibited eating from the tree of knowledge (Genesis 2:17). Whatever is good for mankind must be permissible and praiseworthy. However, good is often not pure good but is mixed with some potential danger. The genome project is certainly good in terms of its potential to lead to cure of diseases but the project also raises many concerns.

Maimonides on the Six Orders of the Mishnah

Maimonides, also known as Rambam, was a Jewish legal codifier, a philosopher, and a physician. He also wrote a commentary on the Mishnah in Arabic. In his introduction to that commentary, Maimonides  explains the sequence of the six sedarim (orders)  of the Mishnah by finding parallels between the order of the sedarim and several passages from the Torah. Reprinted with permission from Maimonides’ Introduction to His Commentary on the Mishnah, translated and annotated by Fred Rosner, and published by Jason Aronson.

When the author of the Mishnah considered its editing, he saw fit to divide this work into sections and therefore di­vided it into six sections.

The first section deals with commandments per­taining to the plants of the land such as laws of prohibited mixtures, laws of the Sabbatical year, Orlah (fruit prohibited in the first years of a trees production), heave offerings, tithes, and other laws of agricultural gifts.

 

The second section deals with the holidays and the festivals their requirements and their varying laws, that which is prohibited, desirable and permitted therein, and those laws and command­ments that are properly associated with each of these holidays.

the mishnahThe third section deals with conjugal relations and enumeration of the laws pertaining to rela­tions between men and women such as the Levirate marriage, Halitzah (a surviving brother’s refusal to marry his deceased brother’s wife), the marriage settle­ment document, betrothals and divorces, and all that is deemed necessary to be stated for each of these subsections.

The fourth section deals with civil and criminal laws, disputes between man and his neighbor, trade, business dealings, partnership in real es­tate and the like.

The fifth section deals with sacrifices according to their varying laws and multitude of types.

The sixth section deals with the matter of puri­fications and their opposites.

Each of these sections is called a Seder (order). The first section is called Seder Zera’im (seeds, agriculture), the second Seder Mo’ed (appointed times), the third Seder Nashim (women), the fourth Seder Nezikin (damages), the fifth Seder Kodashim (holy things), and the sixth Seder Tohorot (purities).

The Fetus in Jewish Law

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

An unborn fetus in Jewish law is not considered a person (Heb. nefesh, lit. “soul”) until it has been born. The fetus is regarded as a part of the mother’s body and not a separate being until it begins to egress from the womb during parturition (childbirth). In fact, until forty days after conception, the fertilized egg is considered as “mere fluid.” These facts form the basis for the Jewish legal view on abortion. Biblical, talmudic, and rabbinic support for these statements will now be presented.

Fetus in Jewish lawIntentional abortion is not mentioned directly in the Bible, but a case of accidental abortion is discussed in Exodus 21:22‑23, where Scripture states: “When men fight and one of them pushes a pregnant woman and a miscarriage results, but no other misfortune ensues, the one responsible shall be fined as the woman’s husband may exact from him, the payment to be based on judges’ reckoning. But if other misfortune ensues, the penalty shall be life for life.”

The famous medieval biblical commentator Solomon ben Isaac, known as Rashi, interprets “no other misfortune” to mean no fatal injury to the woman following her miscarriage. In that case, the attacker pays only financial compensation for having unintentionally caused the miscarriage, no differently than if he had accidentally injured the woman elsewhere on her body. Most other Jewish Bible commentators, including Moses Nachmanides (Ramban), Abraham Ibn Ezra, Meir Leib ben Yechiel Michael (Malbim), Baruch Malawi Epstein (Torah Temimah), Samson Raphael Hirsch, Joseph Hertz, and others, agree with Rashi’s interpretation. We can thus conclude that when the mother is otherwise unharmed following trauma to her abdomen during which the fetus is lost, the only rabbinic concern is to have the one responsible pay damages to the woman and her husband for the loss of the fetus. None of the rabbis raise the possibility of involuntary manslaughter being involved because the unborn fetus is not legally a person and, therefore, there is no question of murder involved when a fetus is aborted.

Gene Therapy and Genetic Engineering in Judaism

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

The literature on gene therapy and genetic engineering in Jewish law is very sparse indeed. Two rabbinic articles with genetic engi­neering in their titles deal primarily with artificial insemination, in vitro fertilization and surrogate motherhood, and only briefly men­tion cloning. The production of hormones such as insulin and erythropoietin, and antibiotics and other therapeutic substances by genetic engineering through recombinant DNA technology, is certainly permissible in Jewish law because nature is being properly used by man for his benefit for the treatment and cure of illnesses. Gene therapy, such as the replacement of the missing enzyme in Tay-Sachs disease or the missing hormone in diabetes, or the repair of the defective gene in hemophilia or Huntington’s disease, if and when these become scientifically feasible, is also probably sanc­tioned in Jewish law because it is meant to restore health and preserve and prolong life. 

The technical medical problems of modifying the defective gene or genes in an individual sperm, ovum or zygote by gene surgery and implanting the replaced or repaired genes into the mother thereby producing a healthy child have not yet been surmounted. However, assuming such surgery can be successfully performed, gene sur­gery will probably be sanctioned by rabbinic authorities as a legiti­mate implementation of the mandate on physicians to heal the sick. Further, argues Rabbi Azriel Rosenfeld, genes are submicroscopic particles and no process invisible to the naked eye is forbidden in Jewish law. For example, laws of forbidden foods do not apply to microorganisms. In addition, a priest only declares ritually unclean that which his eyes can see.

DNAAnother argument favoring the permissibility of gene surgery or genetic manipulation is the fact that a sperm or ovum or even the fertilized zygote is not a person. Thus, gene manipulation is not considered as tampering with an existing or even potential human being, since that status in Jewish law is only bestowed upon a fetus implanted in the mother’s womb. One can also argue that any sur­gery performed on a live human being must certainly be permitted on a sperm or ovum or fertilized zygote. For example, if a surgical cure for hemophilia, Tay-Sachs disease or Huntington’s disease were possible, it would surely be permissible. Hence, it should cer­tainly be permissible to cure or prevent these diseases by gene sur­gery.

The Beginning of Life in Judaism

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

Let us first establish the time that a fetus legally acquires the status equal to an adult human being. The Talmud states in part that if the “greater part was already born, one may not touch it, for one may not set aside one person’s life for that of another.” Thus the act of birth changes the status of the fetus from a nonperson to a person (nefesh). Killing the newborn after this point is infanticide. Many talmudic sources and commentators on the Talmud substitute the word “head” for “greater part.” Others maintain the “greater part” verbatim. Maimonides and Karo also consider the extrusion of the head to indicate birth. They both further state that by rabbinic decree, even if only one limb of the fetus was extruded and then retracted, childbirth is considered to have occurred.

 

Not only is the precise time of the birth of paramount importance in adjudicating whether aborting the fetus is permissible to save the mother’s life, but the viability of the fetus must also be taken into account. The newborn child is not considered fully viable until it has survived thirty days following birth, as is stated in the Talmud: “Rabban Simeon ben Gamliel said: Any human being who lives thirty days is not a nephel [abortus] because it is stated: ‘And those that are to be redeemed of them from a month old shalt thou redeem (Num. 18:16),’ since prior to thirty days it is not certain that he will survive.” Further support for the necessity of a thirty‑day postpartum viability period for adjudicating various Jewish legal matters pertaining to the newborn comes from Maimonides, who asserts: “Whether one kills an adult or a day‑old child, a male or a female, he must be put to death if he kills deliberately…provided that the child is born after a full‑term pregnancy. But, if it is born before the end of nine months, it is regarded as an abortion until it has lived for thirty days, and if one kills it during these thirty days, one is not put to death on its account.”

Thus, although the newborn infant reaches the status of a person or nefesh, which it didn’t have prior to birth, it still does not enjoy all the legal rights of an adult until it has survived for thirty days postpartum. The death penalty is not imposed if one kills such a child before it has established its viability, but killing it is certainly prohibited because “one may not set aside one person’s life for that of another.”

Halakhic Questions about Organ Transplants

Reprinted with permission from Biomedical Ethics and Jewish Law, published by KTAV.

The halakhic (Jewish legal) issues concerning the transplantation of a human organ can be conveniently subdivided into those which pertain to the recipient, those that involve the physician or medical team, and those that primarily affect the donor.

 

In regard to the recipient, what is the status of the transplanted organ? Does it become a permanent part of the recipient, or must it be returned to the donor upon the eventual death of the recipient? The donor may long since have been buried, and his identity and/or burial site may not be known.

Furthermore, where a diseased organ such as a heart, liver, or lung is removed before implantation of a new organ, what does one do with the “old” or diseased organ? Can one just discard it? Must it be buried? Can one incinerate it or place it in formalin for preservation? Must it be treated with respect as part of a human being who was created in the image of God? This problem is not unique to organ transplantation but applies to any organ or part removed from a living human being. Thus, the rabbis discuss whether or not a gallbladder, stomach, uterus, appendix, foot, leg, or other diseased organ or limb removed at surgery or traumatically avulsed requires burial. An entire chapter in Rabbi Joseph Karo’s code of Jewish law [the Shulkhan Aruch] is devoted to this question.

Another halakhic question is whether or not the recipient is allowed to subject himself to the danger of the operative procedure. In Judaism, it is not proper to intentionally wound oneself for no valid medical reason. Does this rule apply to surgery in general and to an organ transplant in particular? Furthermore, does the recipient transgress the biblical commandments “Take heed to thyself” and “Keep thy soul diligently and take ye therefore good heed unto yourselves,” which both the Talmud and Maimonides interpret to mean the removal (i.e., avoidance) of all danger to one’s physical well‑being?

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