Care and Covenant: A Jewish Bioethics of Responsibility

1. Introduction 2. An outline of 'Jewish bioethics' 3. Health and healthcare 4. Doctor-patient relationship 5. The human body 6. Fertility and very early prenatal life 7. Childbirth and abortion 8. Care for premature neonates 9. Organ transplantation and the brain death debate 10. Terminal care.

Scholars of applied Jewish ethics often describe the 1959 publication of Jewish Medical Ethics, by Rabbi Immanuel Jakobovits, as the birth of Jewish bioethics. The decades following its publication saw prolific scholarship, predominantly by Orthodox rabbis, that examined questions about medical practice and technology through the lens of halakha, or Jewish law. This article offers an alternative genealogy of Jewish bioethics, proposing that the field actually emerged around the 1990s, when academic ethics scholars began offering critiques of the earlier scholarship, which is better understood as medical halakha. This article outlines key features of medical halakha as compared with Jewish bioethics, clarifies differences between the two, and argues that drawing a distinction between these two genres will enable greater diversity and creativity in Jewish bioethics discourse. The article closes by discussing ways to incorporate Jewish philosophy into Jewish bioethics under this new framework.

I thought of that quotation when I was asked to address the topic, Is There a Unique Jewish Bioethics of Human Reproduction? My general answer would be that, in some ways there is. Jewish bioethics on this topic is in some ways like all other religious ethical approaches, in some ways like some other approaches, and in some ways like no other approach. Comparing Jewish bioethics with the bioethics of other faith traditions is a complex matter. There are many differences as well as similarities among Jewish bioethical approaches to reproductive technologies. Also, many similarities as well as differences may be found in comparing Jewish approaches as a group with those of other traditions. Having said this, I believe that there are some distinctive (though on the whole not unique) characteristics that tend to establish a family

Although exclusively secular approaches to xenotransplantation are methodologically necessary to establish a fundamental verdict on its theoretical ethical acceptability, it is nevertheless pragmatically appropriate to take into account specifically religious positions, as religion is a factor relevant to societal acceptability. Apart from the aspect of societal acceptability, Jewish bioethics, like other religiously embedded ethics, may enrich the broader ethical discourse on xenotransplantation, as some of its principles-pikuach nefesh being the most prominent one-are plausible even in the framework of secular ethics. This paper first explores concepts of normativity in Jewish ethics before identifying specific ethical issues in Jewish bioethics and possible resolutions offered within the framework of Jewish ethics, and then finally examine the implications for the broader debate on xenotransplantation. Religions in general and Judaism in specific cannot and should not be systematically excluded from ethical debates, not only because they may provide helpful input, but also because religion, religiousness and the affiliation to a religion can be crucial factors regarding the societal acceptability of specific medical technologies and procedures as they may be important aspects of an individual's identity. The principles of Jewish bioethics may be compelling to those who do not necessarily share the specifically religious prerequisites on which Jewish ethics is established. Among these rather cogent concepts is the status of natural law and naturalness, which is far more open to medical technologies and procedures deemed as unnatural and thus morally wrong by other religious parties in public discourse. Jewish ethics has strong tendencies toward supporting xenotransplantation given a certain criteria is met. No categorical bans on xenotransplantation can be established on the grounds of Halacha.

This chapter investigates two arenas in which normativity is both acknowledged and contested within Jewish bioethics. The first is a discursive arena that for the most part involves Jewish bioethicists. I consider how these scholars, clergy and professionals discuss dying and death, and identify at least three layers of problematic conversational issues. The first layer is terminological: strong disagreements exist regarding the very definitions of who and what is in the throes of dying. The second layer pertains to intervening in someone’s dying. This is complicated by how bioethicists read classic texts. The final layer raises meta-ethical issues of conversing across foundational worldviews. For example, some bioethicists consider moral conundrums predominantly through legal lenses whereas others turn more to narratives and some to theology. It is unclear whether and how such foundations facilitate a coherent Jewish bioethical discourse on, say, death and dying issues. The second arena focuses on the dynamics of authority between rabbis and Jews, especially in regard to thinking about and making decisions regarding dying. This dynamic is most conspicuous in the various advance directives published by the streams of modern Jewry. At one extreme are Orthodox advance directives that mandate signatories to abide by strict interpretations of Jewish law, whereas at the other extreme are Reform advance directives that hardly speak of Jewish law or values, and Conservative forms give options based on positions taken by the movement’s centralized committee on law. Examination of such advance directives reveals explicit and implicit notions of rightful authority in regard to making decisions about dying and, ultimately, death. Speaking about and authorizing dying thus illustrate some of the concerns regarding normativity in contemporary Jewish bioethics.

The religious legitimacy of medical practice was an issue of serious contention amongst medieval Jewish scholars. For Nahmanides, altering the patient's fate through manipulation of natural causality amounts to circumventing divine judgment. For Maimonides, however, human accomplishment is part of God's providential design; this view generally prevails in contemporary Jewish bioethics. But the doctrine of deligitimizing human intervention continues, even while unacknowledged, the underlie certain contemporary positions. These include arguments within Jewish bioethics about end-of-life decisions, which are therefore imbued with inconsistencies. It is suggested that, given the overall endorsement of modern medicine, the Nahmanidean approach must be explicitly confronted.

This anthology of original essays by leading thinkers in the field gathers together in one place voices from diverse theological and practical commitments. Unlike other publications on Jewish bioethics, it adopts an explicitly pluralistic stance. The book addresses tension between the 'quality of life' and the 'sanctity of life' issues, and will be of interest to lay readers, graduate students of bioethics, and rabbis.

Readers of this Yearbook have, over the years, been informed of the developments in Jewish bioethics as propounded by Orthodox rabbis. The Orthodox have indeed been the most prolific segment of the Jewish community in addressing the issues in bioethics. They represent, however, only five to ten per cent of the Jewish community in North America, and their rabbis’ rulings flow out of their particular understanding of the Jewish tradition and their methodology for applying it. Consequently, they cannot speak for the large majority of North America’s Jews.

From the Jewish Perspective of God’s Benediction “Be fruitful and multiply...” (Gen 1:28) God’s first blessing which was already perceived in the ancient texts of Judaism as a commandment and a duty (mitzvah) were the words of the Torah: pru urvu – lit. ‘be fruitful and multiply...’ (Gen 1:28). On the basis of the source texts of Judaism the author first presents the above-mentioned words in their ancient context of the Written Torah, and then in the context of the Oral Torah with special reference to the Mishnah, Tosefta and both Talmuds. The source texts clearly indicate that the duty of procreation lies with a man, not a woman. The minimum necessary to fulfill this obligation is to have two children, son and daughter, according to the opinion of the House of Hillel, and according to the opinion of the House of Shammai, a minimum of two sons is necessary. The author also explains after Mishnah the problem of social hierarchy resulting from birth and he points to the impact that ancient opinions and Halachic provisions have had on the issues associated with fertility and procreation. Key words: Fertility, Procreation, Judaism, Rabbinic Law, Jewish Bioethics

"Jewish Bioethics" as currently formulated has been criticized as being of parochial concern, drawing on obscure methodology, employing an authoritarian (and, to the modern mind, unintelligible) method of discourse and as being of little relevance to the wider community. We analyze Jewish bioethics in terms of rule and principle theory and demonstrate that it is based on rational consideration and reproducible reasoning. This approach allows methodological and terminological translation into a Western method of discourse that, in turn, has much to contribute to clarifying underlying principles and methods of application of modern bioethics.

Review of a book: Tomasz P. Terlikowski, Tora miedzy zyciem a śmiercią. Bioetyki zydowskie w dialogu , Wydawnictwo RHETOS, Warszawa 2007.

Second Texts and Second Opinions: Essays Toward a Jewish Bioethics, By Laurie ZolothCare and Covenant: A Jewish Bioethics of Responsibility, By Jason Weiner

Reviewed by: Jewish Bioethics Edward Simon Jewish Bioethics, by Fred Rosner and J. David Bleich. Hoboken, NJ: Ktav, 2000. 454 pp. $24.95. Some books can be safely recommended just by looking at their cover. The editors (outstanding experts in medicine and Jewish law) and the publisher speak for themselves. Sometimes you will be fooled. This book falls in between. It is basically a reprint of a classic 1979 text which itself is a compilation of slightly updated older articles. In this “augmented” edition only three short articles have been added: “Pigeons as a Remedy for Jaundice,” “Sex Preselection,” and “Research on the Newly Dead.” Jewish law is not static. It evolves constantly as new problems arise and new insights are accepted. Not infrequently, modern science will raise not only new issues (microwave ovens, heart transplants) but new solutions to old problems (shabbos clocks, noninvasive procedures). On the other hand, the pace of innovation is not nearly as fast as that of scientific discoveries, so it is not surprising that a twenty-year-old work should still be a valuable reference. Furthermore, Jewish law is firmly rooted in classic texts (Torah and Talmud) and ancient commentaries (Maimonides), and those do not change at all. The contributors to this volume are internationally known experts in medicine, rabbinics, or ethics, often in more than one of them. If the essays are not quite “state of the art,” they will nevertheless illustrate the thought processes involved and show the reader the dimensions of the problem and the different points of view involved. “Autopsy in Jewish Law and the Israeli Autopsy Controversy,” by Fred Rosner, is a case in point. When the article was written in 1971, the problem of autopsies was literally ripping the country apart. Many people, religious and otherwise, were afraid to go to the most prominent hospitals in the country for fear that their body parts would be discarded. In more than a few instances this fear was well founded. By 1977 things had settled down, but the controversy was still simmering, since the original laws were [End Page 147] still in place. Today the furor is gone. But what, if anything, has actually changed? A page or even a paragraph updating the situation would have been most welcome. But the discussion of Jewish law (halacha) remains valid. The basic law is derived from Deut. 21:22–23: “And if a man has committed a sin worthy of death, and he be put to death, and you hang him on a tree, his body shall not remain all night upon the tree but thou shalt surely bury him the same day.” What does this have to do with autopsies? The Talmud (Sanhedrin 47a) explains that just as hanging on a tree all night is a disgrace to the human body, so too any other disgraceful action (such as dissection and destruction of organs) is prohibited. And if the Torah shows such concern for a murderer, how much more so for the rest of us. Other objections to autopsy are addressed elsewhere in the Talmud. A major concern is the need to bury the body as quickly as possible. (The current custom in the United States of delaying one or two days is to allow the family to gather and hence increase the honor paid to the deceased.) Another is the prohibition of deriving any benefit from the dead. For this reason it is questionable if one can even sit on a tombstone. What then about organ transplants? This is covered by two other articles, one by Dr. Rosner, the other by Rabbi Nachum Rabinovitch. The problem has been widely discussed. The key ruling is that the Torah states that it provides “laws to live by,” and therefore the prohibition against desecrating the dead is overshadowed by the sanctity of life and the need to preserve it. Similarly, autopsies in general can be performed only if they will be of immediate benefit to another patient. How does the age of the internet change these parameters? In fact, Dr. Rosner’s account touches on this issue, but it is left to the reader to extrapolate his conclusions twenty years into the future...

The goal of this essay1 is to give an overview of methodology in Jewish bioethics (which of course is simply Jewish ethics applied to a specific con­stellation of issues). To the extent possible in one paper, I will introduce the reader to the process by which Jewish ethical reasoning brings old insights to bear on new problems.

The introduction sets out the concept of the book itself, describes the public hospital where it takes place, and considers the need in the field of bioethics for a different sort of book in Jewish bioethics. It sets in place the story of Esther as the first proof text of my method, which is to use close textual reasoning to illuminate classic narrative, from Hebrew Scripture or the Talmudic literature, and use the logic of that text as a way of thinking about a particular issue or case in clinical ethics. I explore a detail at the end of the Biblical story of Esther, which notes that Esther writes a second account of the story itself, in addition to the account made by Mordechai, and argue that this shows the importance of a “second scroll” or second text in Jewish ethics. This chapter introduces the way that memory about a clinical case, and reflective consideration of the case, can add much to our thinking about bioethics.