EXOD229 Medical Intervention: The Theological Dilemma. Application of this principle to medical intervention for the purpose of preserving life is not without theological and philosophical difficulties. It is to be anticipated that a theology which ascribes providential concern to the Deity will view sickness as part of the Divine scheme. A personal God does not allow His creatures, over whom He exercises providential guardianship, to become ill unless the affliction is divinely ordained as a means of punishment, for purposes of expiation of sin or for some other beneficial purpose entirely comprehensible to the Deity, if not to man. Thus, while the ancient Greeks regarded illness as a curse and the sick as inferior persons because, to them, malady represented the disruption of the harmony of the body which is synonymous with health, in Christianity suffering was deemed to be a manifestation of divine grace because it effected purification of the afflicted and served as an enobling process. Since illness resulted in a state of enhanced spiritual perfection, the sick man was viewed as marked by divine favor. Human intervention in causing or speeding of the therapeutic process is, then, in a sense, interference with the deliberate design of providence. The patient in seeking medical attention betrays a lack of faith in failing to put his trust in God. This attitude is reflected in the teaching of a number of early and medieval Christian theologians who counseled against seeking medical attention [See T.C. Allbutt, Greek Medicine in Rome (New York, 1921), p. 402). The Karaites rejected all forms of human healing and relied entirely upon prayer. Consistent with their fundamentalist orientation they based their position on a quite literal reading of [this verse]. A literal translation of the Hebrew text of the passage reads as follows: "I will put none of the diseases upon thee which I have put upon the Egyptians, for I am the Lord thy physician." [See Abraham ibn Ezra, Commentary on the Bible, ad locum]. Hence, the Karaites taught that God alone should be sought as physician. [See A. Harkavy, Likkuei Kadmoniyot (St. Petersburg, 1903), II, 148 and Harry Friedenald, The Jews and Medicine (Baltimore, 1944), p.9]. This view was rejected in normative Jewish teaching, but not without due recognition of the cogency of the theological argument upon which it is based. Rabbinic teaching recognized that intervention for the purpose of thwarting the natural course of the disease could be sanctioned only on the basis of specific divine dispensation. Such license is found, on the basis of Talmudic exegesis, in the scriptural passage dealing with compensation for personal injury [Exodus 21:18-19]. Ostensibly, this passage refers simply to financial liability incurred as a result of an act of assault. However, since specific reference is made to liability for medical expenses it follows that liability for such expenses implies Biblical license to incur those expenses in the course of seeking the ministrations of a practitioner of the healing arts. Thus, the Talmud, Bava Kamma 85a, comments, "From here [It is derived] that the physician is granted permission to cure."

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EXOD445 Masturbation to obtain sperm [for artificial insemination] is strongly condemned by Rabbi [Moshe] Feinstein, based upon the following Talmudic passage: "… Rabbi Eleazar stated: Who are referred to in the scriptural text "Your hands are full of blood" (Isaiah 1:15)? Those who commit masturbation with their hands. It was taught at the school of Rabbi Ishmael "That shalt not commit adultery" [this verse] implies that thou shalt not practice masturbation either with hand or with foot ...". (Niddah 13b).

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EXOD446 See [[LEV834]] Leviticus 20:10 ROSNER-BLEICH 128-9

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EXOD462 A published responsum dealing specifically with heart transplants is that of Rabbi Unterman [Unterman, I.Y., "Points of Halakhah in the Question of Heart Transplantation" (From an address to the Congress of Oral Law), Jerusalem, Elul, 5728 (August, 1968)] who begins by stating that consent from the family of the donor must be obtained. Otherwise, the doctors and the recipient would transgress the prohibition of "Thou shall not steal" [this verse and Deut. 5:17]. The Chief Rabbi then reviews the halakhic definition of death. He states that under ordinary circumstances, death occurs when respiration ceases. However, sudden unexplained death in young otherwise healthy individuals should be followed by resuscitative measures. A goses need not be resuscitated when respiration ceases. Rabbi Unterman then briefly mentions the problem of organ banks by stating that freezing organs for later use is allowed provided there is a good chance they will be used to save a life. Then, the situation would be comparable to having the recipient at hand (lefaneinu).

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EXOD532 In a Jewish marriage, over and above the question procreation, there exists the conjugal rights of the wife, technically termed onah. Thus, non-procreative intercourse such as occurs if the wife is too young to bear children, or is barren, or is pregnant, or post- menopausal, or following a hysterectomy, is not only allowed but required. Improper emission of seed (hashhatat zara) is not involved or is canceled out so long as the intercourse is in the manner of procreation. Not only are such sexual activities permitted, but they are in fact required by Biblical law based on [this verse]. "Marriage and marital relations are both independent of procreation, achieving the many desiderata spoken of in Talmudic, responsa, and mystic literatures." (Feldman, D. Birth Control in Jewish Law, 1968, New York Univ. Press, 322 pp.) Such goals include fulfilling the wife's desire, physical release of the husband's sexual pressures, and the maintenance of marital harmony and domestic peace. A lengthy chapter in Feldman's book is devoted to a discussion of the legitimacy of sexual pleasure in Judaism. He quotes Nahmanidies who said that "Sexual intercourse is holy and pure when carried on properly, in the proper time and with the proper intentions. No one should claim that it is ugly or unseemly. God forbid! ..." In a similar vein, Rabbi Jacob Emden is cited as having said: "... To us the sexual act is worthy, good and beneficial even to the soul. No other human activity compares with it; when performed with pure and clean intention it is certainly holy. There is nothing impure or defective about it, rather much exaltation..." Thus, whereas Christian teaching promulgates that procreation is the sole purpose of marriage and sexual intercourse, Judaism requires that not only need procreation result from sex, but mutual pleasure is sufficient reason for the sex act.

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EXOD543 Abortion in the Bible. The legislation of the Bible makes only one reference to our subject, and this is by implication: [Exodus 21:22-23]. A. The Jewish Interpretation. -- This crucial passage, by one of the most curious twists of literary fortunes, marks the parting of the ways between the Jewish and Christian rulings on abortion. According to the Jewish interpretation, if "no harm follow" the "hurt" to the woman resulting in the loss of her fruit refers to the survival of the woman following her miscarriage; in that case there is no capital guilt involved, and the attacker is merely liable to pay compensation for the loss of her fruit. "But if any harm follow," i.e., if the woman is fatally injured, then the man responsible for her death has to "give life for life"; in that event the capital charge of murder exempts him from any monetary liability for the aborted fruit. [Mekhilta and Rashi. For a translation of these sources, see 3 Lauterbach, Mekhilta 66-67 (1935); Rosenbaum & Silbermann, Pentateuch with Rashi's Commentary, 112-13 (1930)]. This interpretation is also borne out by the rabbinical exegesis of the verse defining the law of murder: "He that smites a man, so that he dieth, shall surely be put to death ..." [this verse] which the rabbis construed to mean "a man, but not a fetus." [Mekhilta and Rashi. For a translation of these sources, see 3 Lauterbach, Mekhilta 32-33; Rosenbaum & Silbermann, Pentateuch with Rashi's Commentary, 110-10a] These passages clearly indicate that the killing of an unborn child is not considered as murder punishable by death in Jewish law. B. The Christian Interpretation. -- The Christian tradition disputing this view goes back to a mistranslation in the Septuagint. There, the Hebrew for "no harm follow" was replaced by the Greek for "[her child be born] imperfectly formed." [The mistranslation, also followed in the Samaritan and Karaite versions, is evidently based on reading zurah or surah (meaning "form") for ason (meaning "harm" or "accident"). See Kaufmann, Gedenkschrift 186 (1900)]. This interpretation, distinguishing between an unformed and a formed fetus and branding the killing of the latter as murder, was accepted by Tertullian, who was ignorant of Hebrew, and by later church fathers. The distinction was subsequently embodied in canon law as well as in Justinian Law. [See Westermarck, Christianity and Morals 243 (1939)]. This position was further reinforced by the belief that the "animation" (entry of the soul) of a fetus occurred on the fortieth or eightieth day after conception for males and females respectively, an idea first expressed by Aristotle [Aristotle, De Anim. Hist. vii. 3; see 1 Catholic Encyclopedia 46-48 (1907)], and by the doctrine, firmly enunciated by St. Augustine and other early Christian authorities, that the unborn child was included among those condemned to eternal perdition if he died unbaptized. [See 1 Ploss & Bartels, Woman 483 (1935); 2 Catholic Encyclopedia 26-67 (1907)] Some even regarded the death or murder of an unborn child as a greater calamity than that of a baptized person [See 2 Lecky, History of European Morals 23-24 (3d ed. 1891)]. Eventually the distinction between animate and inanimate fetuses was lost; and since 1588, the Catholic Church has considered as murder the killing of any human fruit from the moment of conception.[See 1 Ploss & Bartels, op. cit, at 484; Bonnar; The Catholic Doctor 78 (1948)]. This position is maintained to the present-day [See, e.g., Catholic Hospital Association of the United States and Canada, Ethical and Religious Directives for Catholic Hospitals 4 (1949)]. It assumes that potential life, even in the earliest stages of justation, enjoys the same value as any existing adult life. Hence, the Catholic Church never tolerates any direct abortion, even when, by allowing the pregnancy to continue, both mother and child will perish [See Bonnar, op. cit, at 84]; for "better two deaths than one murder." [Tiberghien, "Principles et Conscience Morale," Cahiers Laennac, Oct. 1946, p. 13].

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EXOD544 The basic halakhic principle governing abortion practices is recorded in the Mishnah, Oholot 7:6, in the declaration that when "hard travail" of labor endangers the life of the mother an embryotomy may be performed and the embryo extracted member by member. This ruling is cited as definitive by Rambam, Hilkhot Roze'ah 1:9, and Shulhan Arukh, Hoshen Mishpat 425:2. The halakhic reasoning underlying this provision is incorporated in the text of the Mishnah and succinctly couched in the explanatory phrase "for her [mother's] life has priority over its [the fetus'] life." In the concluding clause of the Mishnah, a distinction is sharply drawn between the status of the fetus and that of a newly born infant. The Mishnah stipulates that from the moment at which birth, as halakhically defined [Yoreh De'ah 194:10], is considered to have occurred, no interference with natural processes is permitted, since "one life is not to be set aside for the sake of another life." It may readily be inferred from this statement that destruction of the fetus is prohibited in situations not involving a threat to the life of the pregnant mother. Incorporation of the justificatory statement "for her life takes precedence over its life" within the text of the Mishnah indicates that in the absence of this consideration abortion is not sanctioned. Tosafot (Sanhedrin 59a; Hullin 33a) states explicitly that feticide, although entailing no statutory punishment, is nevertheless forbidden. Elsewhere we find that according to rabbinic exegesis (Mekhilta, this verse; Sanhedrin 84a) the killing of an unborn child is not considered to be a capital crime --an implication derived from the verse "He that smiteth a man so that he dieth, shall surely be put to death" [this verse]. Tosafot, on the basis of the Mishnah, apparently reasons that although feticide does not occasion capital punishment, the fetus is nevertheless sufficiently human to render its destruction a moral offense.

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EXOD561 See [[LEV213]] Leviticus 18:5 live ROSNER-BLEICH 144

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EXOD575 Dispensation to intervene in the natural order is derived from [this verse]; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation. Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance as is the case with regard to the restoration of lost property, but, by virtue of the negative commandant, "You shall not stand idly by the blood of your neighbor"(Leviticus 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving the life of one's fellowman.

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EXOD576 See [[EXOD229]] Exodus 15:26 diseases ROSNER 20-1

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