Review of Recent Medical Halakhah
Assia 119-120, May 2021
In a true testament to the influence of Jewish Law on Israeli ethics, the offical recommendations of the Israeli Medical establishments for allocating scarce resources during the COVID-19 pandemic largely followed halakhic prinicples. In fact, “Chapter 2: Ethical, Legal, and Moral Principles” opens its discussion of equity and equality by quoting Sanhedrin (37a), לפיכך נברא האדם יחידי, ללמדך שכל המאבד נפש אחת מעלה עליו הכתוב כאילו איבד עולם מלא, וכל המקיים נפש אחת מעלה עליו הכתוב כאילו קיים עולם מלא (destroying one life is compared to destroying the world and saving one life is equivalent to saving the entire world).
Chaired by the indefatigable Rabbi Prof. Avraham Steinberg, the נייר עמדה של הוועד הציבורית לתיעדוף חולים קשים בתקופת מגפת הקורונה (“Position Paper of the Public Committee for Deciding Triage of Sick Patients During the Coronavirus Pandemic”) spells out a number of different protocols to become active during different phases of the pandemic’s utilization of healthcare resources. Assia actually first prints Rabbi Steinberg’s own halakhic analysis before presenting the complete Position Paper; the latter indeed flows quite nicely from the former.
Life Saving for the Masses
One particular area of interest is the notion of maximizing the number of lives saved. We’ve explored this issue previously and it underlies much of Rabbi Steinberg’s halakhic analysis. He frames the issue of choosing who to save as an extreme of example of the more mundane notion of choosing between mitzvot. In his classic encyclopedic style, Rabbi Steinberg culls examples where mutually exclusive mitzvot occur simultaneously or when priority must be given to one mitzvah over another. Considering that saving each life fulfils a mitzvah of pikuach nefesh, the optimal choice when faced with a dilemma would be to opt for more mitzvot than fewer. Meaning, if saving one patient would require five hours, but in that time, were personnel and resources made available, five other patients could be saved — priority should clearly be given to the larger number of patients.
Rabbi Yehoshua Weisinger (in the very next article, תיעדוף חולים קשים – הארות והבטים הלכתיים) takes Rabbi Steinberg to task over this very point. Although Rabbi Steinberg doesn’t actually make this direct point in this analysis,1 Rabbi Weisinger correctly notes that this very idea underlies many of Rabbi Steinberg’s points and finds room for a serious critique.
What is fair?
Rabbi Weisinger notes that the medical system — including its medicines, therapies, and use of its staff — are to be considered ‘owned’ by each member of society equally. In most modern medical systems, no individual can lay a greater claim to any of particular hospital bed, staff, medicine, or technology. He therefore argues that appropriate triage decisions must take the equal partnership status of each of the potential patients into consideration and not solely focused on the outcome of saving the greatest number of lives. The resulting conclusion is that each person is equally deserving of full use of any and all treatment and therapy modalities. Practically speaking, this means that in the case described above, the first patient (who needs a full five hours of medical attention) is equally deserving of that attention (medicines, therapy, care, etc.) and denying him those available treatments to save other people, even if they are greater in number, is inherently unfair, unjust, and a violation of the basic social contract of partnership of communal resources.
Although perhaps somewhat counterintuitive, this argument is reminiscent of Dr. Scott Hershovitz’s recent (NY Times in May 2020) presentation of Prof. John Taurek’s argument from his famed 1977 paper, “Should the Numbers Count?” in which he argues that in indeed, they should not matter. Describing the hypothetical of distributing a larger dose of a drug to one very sick patient or dividing into five smaller doses to save patients who are less sick,
He said he’d flip a coin to decide whether to divide the drug among the five or give it to the one who needs it all ... Why? Professor Taurek observed that the stakes are the same for all six people: Each will die without the needed dose. If we direct the drug to the patient who needs the entire supply, it’s true that more people will die — five instead of one. But no one dies five times; each person dies just once. That means that none of the five could say to the one, “I would suffer more than you without the drug...” Each could ask the person who needs the whole supply to give it up for the benefit of all the others. But none of them could say that she needed it more... Since the stakes are the same for everyone involved, Professor Taurek thought all six deserved an equal shot at survival. This is why he said he would flip a coin. If it comes up heads, we save the person who needs the entire supply. If it comes up tails, we save the other five. Everyone has a 50-50 shot at survival.
Although framing the argument somewhat differently, the starting points are similar. Put somewhat differently, Rabbi Weisinger is essentially arguing that each person deserves an equal shot at survival. This is what equality — the basis for the entire discussion by Rabbi Steinberg and the Israeli Medical Establishment — really demands. Why does Rabbi Steinberg and seemingly the rest of the rabbinical establishment who recently weighed in on this issue disagree?
Defining Halakhic equity
The idea of respecting each and every life isn’t up for debate. It’s taken for granted by all Poskim and under normal circumstances, demands doing our utmost to save, protect, and maintain each and every life wheneve reasonably possible (clearly, with exceptions, ואכמ”ל). It’s only when tragic choices need to be made that these discussions are even entertained. And it’s precisely the theory of equity that drives this approach.
We treat each life equally. Meaning that nobody’s life has preference to anybody else’s. And if each life counts the same, then we as a society have a responsibility to maximize the number of lives that we can save.2 The question of equity is what are we trying to equalize.
It’s indeed true that in prioritizing the many we may not be treating each person’s likelihood of survival equally, as Prof. Taurek noted. But the mitzvah of pikuach nefesh isn’t to maximize chances of survival, but to save lives. It’s not the chances of survival that should be treated equally but the lives themselves. Treating each life equally means that effectively, they are each “worth” the same – irrespective of how we might come to assess that worth. It means not being able to prioritize one over another and therefore when presented with the opportunity to save the most lives possible, we must strive to do so.
When presented with the opportunity to perform one mitzvah or five mitzvot, we should opt for the five mitzvot. Not only are we maximizing our mitzvah performance, but we are doing it while preserving and promoting equity.
- The point Rabbi Steinberg is making is that while normally Halakhah only takes cognizance of those patients that are currently presenting – חולים בפנינו – in the case of a pandemic, where it’s clear that additional patients are on the verge of admission to the hospital, the needs of the greater number take precedence, even though they aren’t currently in the hospital. Supporting this position, Rabbi Steinberg cites the Tzitz Eliezer, Rav Menashe Klein, Rav Moshe Sternbuch, and Rav Hershel Schachter. Leaving the issue of taking those not-yet-but-soon-to-be hospitalized patients into consideration, the underlying assumption is that the needs of the many trump those of any individual with respect to pikuach nefesh. [↩]
- This is similar to the argument that Hershovitz cites from Derek Parfit. [↩]
