Morality in Medico-Legal Problems
by Emanuel Rackman
I – The Patient’s Right to Know the Truth
With Dr. Fletcher I agree that ethical integrity requires freedom of choice based upon full knowledge of the facts. For that reason I personally would always want my doctor to tell me the whole truth. Only then could I act as a moral person in the situation calling for action. However, for that very same reason I cannot accept changes in the law which would deny physicians the very freedom of choice which I crave for myself. For to impose criminal, or even civil liability upon doctors for not telling their patients the truth, is to deny them the prerogative of weighing the many circumstances that they, as moral persons, ought to consider before they arrive at decisions as to what they shall do. I do not see it as a function of the law to relieve doctors of the onus of making decisions, for they are more than the mere observers of symptoms and prescribers of remedies. A statutory requirement that they invariably tell their patients the “truth” would make of each of them an “it” instead of a “thou,” and while patients may have the “right” (in an ethical sense) “to know the medical facts” about themselves, such right should not be converted into a “claim” (in the legal or “Hohfeldian” sense) so that a correlative duty devolves upon the physician to reveal everything he knows or suffer the consequences provided by statute.
Such a law would also be unenforceable. For it is in the rare case that doctors conceal their diagnosis. In some cases, as in psychotherapy, Dr. Fletcher concedes that disclosure might adversely affect the cure and aggravate the patient’s symptoms and misery. Yet, who knows better than Dr. Fletcher how virtually indistinguishable are psychic from somatic diseases! Therefore, to enact a law which would permit the withholding of facts in the case of the former and deny such permission in the case of the latter is to enact legislation that will become a mockery. A doctor could always certify that he deluded his patient because in addition to the cancer, the patient had one neurosis or another. It is much more expedient to leave the problem where it belongs—in the realm of ethics. Dr. Fletcher renders a great service when he apprises doctors that more and more people want the truth.
However, if the doctors will have misjudged the moral calibre of their patients, then, alas, they will have erred and to err is human. A mandatory law might spare them the possibility of error, but it hardly enhances their freedom, and they too are entitled to the freedom required to be moral persons who can make moral choices.
I also think that in Dr. Fletcher’s analysis the legal character of the contract between the physician and the patient plays too important a role. It is not a legal contract that gives rise to the obligation to tell the truth. Let us assume that I am not a physician but I know facts about my friend which are unknown to him. Must I not disclose them if they are of significance to him? Though the Bible prohibits “talebearing,” in the same verse it orders me to testify when I have information that would, for example, save a prisoner from execution,1 though I am under no contractual obligation to the accused and though my testimony may incriminate another. Yet, at the same time, Jewish codes2 regard him as a fool who divulges information to a friend when such information can only cause grief and inconvenience, albeit that the friend might be a masochist and might prefer to suffer distress. Furthermore, the fact that the doctor has a contractual relationship with the patient means no more than that for a breach of the contract he can be sued for damages. Whether or not he will “specifically perform” the contract will always remain a moral question for the doctor to resolve, and it is no different in essence from the moral problem of any human being having knowledge of facts that are material to another.
By the same token, Dr. Fletcher goes too far when he virtually creates a property right in the patient to the facts which the doctor acquires in the course of the physical examination, which facts the doctor may “steal” from the patient by failure to disclose them. Even if those facts became the basis for a monetary gain, as in the case of a profitable lecture or book based upon a case history, the patient has no claim to them. The most that one could say about the “facts” is that since the patient exposed himself to examination for the purpose of learning facts about himself, the failure of the doctor to disclose the facts means that the patient’s right of privacy has been yielded in vain. But no legal system would go so far as to provide sanctions to protect such a right of privacy in the patient-physician relationship when to do so would inhibit physicians in the course of their examinations lest they exceed the bounds within which they are protected by law. Thus to expand the scope of the law’s protection of the rights of privacy would be against public policy.
II – Contraception
As in the case of the doctor’s telling the truth, so in the matter of contraceptives, I favor minimum interference by the law. The most that the law should do is regulate their production and sale in the same manner that it regulates the purity of other drugs and surgical or medical equipment. It is not the law’s function to protect one moral code in the community when an antithetical one enjoys as much loyalty from citizens of the state.
Judaism has a considerable literature on the subject and there is no agreement among rabbis as to the morality or immorality of planned parenthood. The rules applicable to continence during, and for a week after, the menstrual period already greatly reduce the incidence of pregnancy. Moreover, abundant authority there is for the use of contraceptives when the welfare of an already born child may be affected by another pregnancy, as in the case of a mother who is breast-feeding her child and another pregnancy would cut off the flow of milk from her mammary glands. Some rabbis see no difference between such a case and planned parenthood for the economic welfare of offspring, particularly since the Talmud regards nursing as an economic rather than biological function of the mother.3 Thus, for example, if the child is so young that it does not yet recognize its mother, the husband may in many instances be required to engage some other woman to do the nursing, and relieve his wife of that responsibility. One of the most distinguished Talmudic commentators, Rabbenu Tom (12th century), held that there never was a prohibition against birth control by the wife.4 In some cases, however, he regarded it as mandatory. The case of the nursing mother is one such instance. Most authorities insist that only the wife may practice contraception on the theory that hers is not the command to be fruitful.5 She is even permitted to imbibe drugs to prevent conception.6 Her role in procreation is only passive. And since it is the male who must fulfill the mandate of Genesis to multiply, it is urged that he should not be guilty of active evasion of his obligation. Yet a man fulfills his obligation when he has already had a son and a daughter. Moreover, the mandate of Genesis is explicitly for the purpose of “filling the earth.”7 One could reasonably argue that when there already exists a threat of over-population the divine command has been fulfilled. In any event, overpopulation has more than economic importance. It is at least as directly related to the health of humanity as the conception of any second child is to the breast-feeding of the first.
With Dr. Fletcher I concur that there has been too much sophistry in all religious traditions with regard to the subject and anyone who will grapple with the total Jewish legal tradition will have to concede that sexual intercourse is not exclusively for procreation. By Jewish law, one may cohabit with one’s sterile wife.* 8 And one may cohabit with one’s wife during her pregnancy and after her menopause. If anything may be learned from the story of Onan in Genesis,9 it is that contraception by withdrawal is to be discouraged—for good psychical reasons. But the story may not be authority even for such a limited prohibition. As Dr. Fletcher indicates, it is authority for the proposition that he who would fulfill the evirate law cannot vitiate it by dropping his seed earthward. Onan had married his deceased brother’s childless widow and the only justification for such a marriage, in the face of the prohibition against it, was that he would cause her to conceive.
In any event, the law should not be the instrument for the further benighting of the benighted. Ignorance may be bliss but it is immoral to use the law to withhold from the depressed elements of the population information already available to the majority. The least that Jewish law insists upon is that all Jews shall study the Law which includes discussions of the facts and methods of contraception. As I oppose the use of the law to compel the disclosure of facts by doctors so I oppose its use to prevent the dissemination of information by the same people or equally competent and trained individuals. Whether or not the information will be used by the adherents of different faiths should always remain a matter of moral choice.
III – Artificial Insemination
I do favor the legislation which Dr. Fletcher seeks with regard to all forms of artificial insemination. The legislation he seeks would correct existing statutes or vitiate unfortunate interpretations already given them. In this connection Jewish law is exceedingly liberal. A woman is not guilty of adultery when she is impregnated artificially with the sperm of a donor and the child is legitimate, whether or not the mother is married.10 The doctor cannot be regarded as a criminal since the wife or unwed mother has committed no crime and one cannot be an “accomplice” to “no-crime.”
According to Jewish law, however, the donor remains the natural father of the child—so that the child by A.I.D. would not be permitted to marry any other children that the anonymous donor may then or subsequently cause to be conceived. Such a marriage would be incestuous. It is principally for this reason that A.I.D. has not been encouraged by rabbis. Though a few rabbis question the moral character of the donor’s act in permitting sperm to be taken from him, the greater objection is that A.I.D. increases the possibility of children marrying their half brothers or sisters, whom they don’t know to be such. Yet even this remote fear would hardly convince many in a Jewish state to prohibit the practice, particularly since no stigma ever attaches to donor, mother, or child.11 The most that the law would do would be to encourage the selection of donors in such a way that incest could never follow (e.g., by using donors of a religious faith other than the mother) or to require such registration of donors that the state’s authority charged with the task of solemnizing marriages would be able to ascertain whether incest is involved.
It has been suggested that while A.I.D. is not adultery, nonetheless, when the wife continues to cohabit with her husband while A.I.D. is being performed upon her, one may never know through whom she became pregnant and Judaism does regard the unequivocal identity of one’s parents as a goal much to be cherished. For this reason one rabbi even suggested that while A.I.D. is being performed upon the wife, the husband and wife should be divorced from each other for the duration of the pregnancy.12 While the suggestion may help to make sure that we know who the real father is, it is hardly humane, for it is precisely during that period that husband and wife require all the warmth and understanding of which they are capable. Nonetheless, it seems clear that Jewish criminal and personal status law creates no problems with regard to the alleged adultery of the A.I.D. mother or the legitimacy of the issue.
More difficult to resolve, however, is the civil liability of the father-donor to the offspring. By Jewish law he is the natural father and a natural parent can never rid himself of his tie to his child, nor can the child ever sever his tie with his natural forbears. Yet this rule does not preclude the fostering of a foster-parent relationship in addition to the natural relationship. That is why Jewish law never provided for adoptions, though one could always voluntarily raise another’s child. Insofar as the adoption releases the natural parent from all parental obligations it was objectionable. Yet Jewish civil law is flexible enough to permit such amendments as will relieve the father-donor of liability for support of his offspring, and remove his estate from claims of inheritance by children he has never seen. Israel’s Chief Rabbi Herzog has already recommended proposals which would modify the traditional Jewish law of inheritance in other respects and make it accord with such sentiments of obligation as prevail in the modern family.13 Further amendments of Jewish law to protect the father-donor would also appear to be possible and necessary.
That Jewish law is so much more liberal than Christian law is due to the fact that the two legal systems parted ways centuries ago with regard to their conceptions of illegitimacy. According to Judaism, the child of an unwed mother is not illegitimate. A child is illegitimate only when it is conclusively established that it was born of an adulterous or incestuous relationship, and since it is virtually impossible ever to prove that any conception is due to adultery or incest—for the husband is always presumed to be the father of his wife’s children, even if he proves that he was on another planet for years—illegitimacy is a status that is more a threat than a legal reality. Furthermore, to be guilty of either adultery or incest, the male must at least begin to penetrate the vagina or anus. Anything less than that may be immoral but it is not punishable, nor does it ever create any clouds over status. A.I.D. involves no such penetration.
IV – Sterilization
With regard to compulsory sterilization, Jewish law is not so liberal as are already prevailing statutes. Who better than Jews know the consequences of allowing the state too much control over the gift of life! As modernistic in outlook as we essay to be, the memory of Nazi terror is still too fresh for us to permit any tampering with time-honored rules. And it is not the Fascists alone who have created states with no respect for human life and dignity. The whole story of Communist terror must yet be told. Liberals, and I among them, have helped the Communists to conceal their nefarious achievements. We were deluded for a long time by the profession of high ideals and we presumed that a better society was really their goal. Having just returned from a visit to the U.S.S.R., I have one firm conviction: states must be kept at bay. And to vest the state with more power over life and death than it already has is dangerous. Judaism is very much “anti-statist.” No legal philosophy is more inconsistent with Judaism than Austin’s, Kelsen’s, and now the Soviet Union’s, to wit: that law is the creature of the state. And this “anti-statism” must have inspired Jewish sages millennia ago to deplore even capital punishment.14 They did not altogether abolish it as many people believe; even in the Middle Ages they resorted to it, particularly in the case of informers. But the trend to shear the state of power over life and death was unmistakable.
Killing in self-defense remained a part of the law. On that basis one can defend the compulsory sterilization of criminals. Though the Bible prohibits sterilization, that prohibition yields, as do all others, to the supreme command to save life and the sterilization of criminals may be necessary to save lives. Society may do it in self-defense if no other preventive is absolutely effective. But the procreation of idiots is an evil against which the state can protect itself. Idiots can be institutionalized. True, the cost is great but unless the cost is so great that the survival of the group is threatened by it, compulsory sterilization is the exercise of a police power not for the good of the sterilized—who are incapable of knowing good or evil—but for the convenience of the majority. This is precisely the type of logic by which Hitler justified the cremation of millions of “inferior” peoples.
Dr. Fletcher’s plea for the right of children to be born normal is an appealing one. Would we, therefore, kill children born blind? Or crippled? Dr. Fletcher really sheds crocodile tears for the rights of idiots who are unaware of their lot or status. The ultimate rationalization of our defense of their sterilization is that we, the normal ones, want to be spared the burden of their maintenance. And I submit that that burden is a small price to pay for the safeguards we require against the enlargement of the state’s power over life and death.
Judaism’s general position on sterilization is quite clear. It is prohibited. At least, the rabbis so understood the prohibition of Deuteronomy.15 And in the light of the anthropological data available to us, which indicate the extent to which sterilization was a rite of pagan religion, one can understand why the Bible sought to exorcise this vestige of paganism. In its unalterable opposition to paganism it outlawed this pagan practice as well.
Yet, while the Bible prohibits him who caused himself to be made sterile from marrying into the Congregation of Israel—this is his punishment—the Talmud did make it clear that the prohibition does not apply to those made sterile by acts of God.16 For that reason a group of rabbis recently informed the Veteran’s Administration that those who become paraplegics as a result of injuries sustained in combat may marry in accordance with Jewish law.
Furthermore, the question was raised as to whether, in the light of the Biblical prohibition against castration, one may permit the removal of one’s prostate gland. However, as already indicated, almost all Biblical prohibitions yield to the requirement of self-preservation. If the prohibition against murder must be suspended to save life, it is an a fortiori case that the prohibition against sterilization can also be suspended to save life.
With regard to the Sabbath we have a recent unpublished rabbinic ruling that extends the suspension of the Sabbath’s operation when life is at stake to such an extent that a state—the State of Israel for example, where the problem is not an academic one—may render through its employees many services on the Sabbath that individuals may not perform. The state may maintain dynamos and generate
electricity which an individual for personal reasons may not do. However, for the state, the availability of electric power is essential to operate its round-the-clock activities in diplomatic and military communications centers and in hospitals. To secure the state is tantamount to securing the lives of its citizens and consequently many Sabbath rules are suspended.
Can the same reasoning be applied to the sterilization of incompetents? Should not the Biblical prohibition against sterilization—of far less significance in the hierarchy of Jewish values than the Sabbath—also yield to the need that the state protect itself against such procreation as can only constitute a drain on its resources and energies? I am not prepared to answer affirmatively. True, the state could use the money it will require to maintain the incompetents for the greater good of the competent. But I dread the extension of the state’s police power to include control of the procreative faculties of one person for the benefit of another.
V – Euthanasia
Even more than in the case of compulsory sterilization, Judaism would be unalterably opposed to any legislation that would make homicide by physicians or by agents of the state mandatory or permissive. Judaism’s position may appear paradoxical. On the one hand, he who accelerates the death of a patient may not be tried as a murderer—for he killed one who was afflicted with an incurable malady and is there-fore, from the point of view of the homicide, already legally dead.17 Moreover, no people can boast as many martyrs as Jews do and martyrs are individuals who for the glory of God permit themselves to be slaughtered when they could save their lives by one form of apostasy or another. This means that the tradition did not glorify the continuance of life as an end beyond which there is no end. Yet, at the same time Jewish ethics prohibit suicide—without exception— and also euthanasia—without exception.
However, the seeming paradox makes for the very ethical integrity which is the heart of Dr. Fletcher’s moral position.
For the law to relieve men of all crucial moral decisions is to deny them that spiritual autonomy which is of the essence of their moral and religious experience. Confronted by a suffering fellow-man, the doctor must make decisions. Or the members of the family must make them. And they must steer a course between two antinomies—the inviolability of the right to life and the command to mitigate suffering. Whatever the decision, there will be no punishment by human tribunals —according to Judaism. Mercy killing will not be murder. The freedom to act morally is, therefore, absolute. One acts only under God and with one’s own conscience as one’s guide. And one will have to live with that decision forever after. The law, however, plays no part.
The Model Legislation.—Petitions for euthanasia would definitely be objectionable from Judaism’s point of view. If the patient wants to commit suicide, he will have to make a moral decision comparable to that which the physician makes when he commits a mercy killing. However, the law should not be amended so as to give the state more power over life and death than it already has. The misery of the few who might seek to take advantage of the legislation proposed is naught by comparison with the misery of multitudes whom the Leviathan will destroy when and if we raze the ramparts which religion has reared for millenia around the sanctity of life.
Dr. Fletcher’s plea for the afflicted is moving. But alas, as mindful as one wants to be of the welfare of the individual, one must not forget that the law, and ethics, must also be mindful of the general welfare of society. Lawyers often speak of hard cases making bad law. In the refinement and development of justice, one must frequently ignore the hard case and permit the generally just rule to remain inviolate. The proponents of legislation regulating euthanasia are preoccupied with the plight of individuals who, at best, will be few in number. For while many patients may beg for death, few will petition for it. And while doctors technically kill with pain-relieving drugs, the drugs do relieve pain and diminish the likelihood of legal action by patients. For the rare case, therefore, in which the legislation would be used, it would be most unfortunate if, in an age which has tolerated as much wholesale slaughter as ours already has, we should take further steps to let the state play God.
1 Leviticus 19:16
2 Karo and Isserlis, Shulhan Aruh, Yoreh Deah 402, 12
3 Babylonian Talmud, Ketubot, 60b.
4 Commentaries on Babylonian Talmud, Ketubot, 39a.
5 Maimonides, Yad, Hilhot Ishut c. 15, If 2.
6 Babylonian Talmud, Shabbot, 110b; Maimonides, Yad, Hilhot Isurai Biah c. 16, 12
7 Genesis 1:28.
8 Rabbenu Tom, op. cit. supra note 4.
10 B. Z. Uziel, Mishpete Uziel, Even ha-’Ezer, No. 19.
11 No stigma whatever attaches to the child if a record is kept of the name of the donor, even though the record is not available to everyone.
12 Rabbi Meyer Karlin of Brooklyn, N.Y., made this suggestion in an unpublished responsum read before the Rabbinic Alumni of Yeshiva University.
13 “Hazoat Taqonot bi-Yerushot,” in Talpiot 36-50 (Yeshiva University 1953).
14 Babylonian Talmud, Makot, 7a.
16 Babylonian Talmud, Yevamot, 75b.
17 The victim must be suffering from an incurable disease, not simply an old man who would soon die anyway.
Rabbi Emanuel Rackman was Rabbi of Congregation Shaaray Tefila and President of the New York Board of Rabbis.