Nomos and Narrative in Jewish Law: The Care of the Dying Patient and the Prayer of the Handmaid

Introduction

The most frequent and difficult moral quandary faced by medical ethicists is how much effort must be expended to treat a dying patient. This dilemma is a daily occurrence in modern hospitals and causes much anguish to patients and their families. With the advent of new technologies such as mechanical ventilation and dialysis, patients that would have died quickly in the past can now linger for months dependent on these machines for their survival. These developments forced the issue of whether all patients should receive these life extending treatments or be allowed to die without aggressive treatment. The Western liberal answer to this question based on the principles of autonomy and human freedom, has been to let the patient decide how they want to die. The Catholic Church has differentiated between ordinary care which they require and extraordinary care which they leave to the patient's discretion.¹ Naturally, Jewish decisors where also called upon to address the issue. The primary halachic source for the discussion is the gloss of the Rama in the authoritative Code of Jewish Law:

It is forbidden to cause the dying to die quickly; such as one who is moribund (gosses) for a prolonged time and cannot die, it is forbidden to remove the pillow from under him on the assumption that certain bird feathers prevent his death. So too one may not move him from his place. Similarly, one cannot place the keys of the synagogue beneath his head [because of the belief that their presence may hasten death] or move him that he may die. But if there is something that delays his death such as a nearby woodchopper making noise or there is salt on his tongue, and these prevent his imminent death, one can remove them, for this does not involve any action at all, but rather the removal of the hindrance to death.²

However, Newman wonders if "these texts provide appropriate analogies, and so precedents, for contemporary case of euthanasia?"³ For example,

1. 1. How does one define "dying" in an age of mechanical ventilation, left ventricular assist devices and dialysis? Due to the advance of modern medicine the dying can be kept alive for a prolonged period of time; are they therefore no longer considered dying?

2. 2. The medieval ruling deals with practices that from a modern perspective are difficult to understand. For whatever reason, one is not allowed to move the pillow but one is allowed to remove the salt from his mouth. How do these "treatments" relate to modern medical care such as the use of antibiotics and insulin, not to mention mechanical ventilation or artificial nutrition? Are these treatments also preventing the dying process or are they more akin to the feathers of the pillow which one is not allowed to remove or another category altogether?

The "Maximalist" Position

Rabbi Eliezer Waldenberg, a former member of the supreme Rabbinical court of Jerusalem and halachic authority for Sharei Tzedek Hospital, argued strenuously over many decades, that maximal effort must be made to extend every minute of life even in a dying patient. Rabbi Waldenberg claims that if one is allowed to desecrate the Shabbat for a dying patient then it follows that is one is required to do everything humanely possible to extend the life of a terminal patient in every situation, even if they are suffering.⁴ According to Rabbi Waldenberg, the reason for this requirement to extend life in every situation is that every moment of life is valuable, for there are people who justify their entire existence with a thought of repentance at the end of life.⁵ In addition, suffering has the potential to erase one's culpability from sin⁶.

Rabbi Waldenberg maintains that the normative obligation requiring a physician to heal the sick is all encompassing and applies to all patients at all times even in the midst of great suffering.⁷ He has harsh words for physicians who "wrap themselves in the cloak of mercy" and actively end patients life and is also concerned...