END OF LIFE ISSUES -PART ONE

General philosophical comments on the subject of death and dying in bioethics;

The symmetry between the bioethical principles regarding the beginning of life and
those concerning the end of life is both of philosophical and theological meaning.
Both fields in modern medical ethics have developed along each other at the same time,
namely in the course of the 1950’s and 1960’s.
The fierce debate about the ethics of abortion and the legitimacy of euthanasia ran
parallel, raising the same issue of the nature of life and the role of human autonomy in
deciding its beginning and its end.
But later on, the debate expanded from the traditional questions of abortion and
euthanasia to completely new issues that were raised by the tremendous development
in medical technologies.
In the field of the beginning of life, decisions had to be made regarding premature
babies born very early and hence with dubious life prospects, IVF technology, surrogate
motherhood, genetic screening, PGD tests, cloning and stem cell research.
All these gave rise to the philosophical question of when life begins and what does that
morally entail.
In the field of the end of life, the second half of the twentieth century gave rise to the
new definition of brain death, to the novel techniques of organ transplantation, and to
an unprecedented power of medicine to extend life for a very long time (sometimes in a
way which looks “artificial” or futile).
Although abortion and euthanasia have always been ethical issues and subjected to
normative regulation (both ethical and legal), the particular problem of the exact timing
of the beginning and end of life has had only marginal import.
There were indeed debates about the status of the foetus as there were debates about
the status of the dying person. But nowadays, crucial ethical issues surround the
subtleties of the manner in which the moment of coming into existence and passing
away is fixed.
Thus, for example, is the very early embryo, three days after conception, a person
protected from intervention for research purposes or for selection in an IVF procedure?
Similarly, in the end-of-life context, is a brain dead but still breathing person dead or
alive and hence eligible or ineligible to donate organs?
 So far for the general changes in philosophical discussions of the symmetrical problems
in the beginning and the end of life.
But the underlying assumption common to both is that life and death are a given in the
sense that we have no control over them.
Theologically, this is captured well in the famous Jewish saying from Pirkei Avot (first
and second centuries A.D.) that man is born and dies by necessity.
‫ וְעַ ל‬,‫ ֶׁשעַ ל כ ְרחֲ ָך אַ תה נֹוצר‬,‫ וְאַ ל י ְַב ִטיחֲ ָך יִצְ ְרָך ֶׁשהַ ְשאֹול ּבֵּ ית מנֹוס ְלָך‬.‫ו ְַדע ֶׁשהַ כֹּל לְ פִ י הַ חֶׁ ְשּבֹון‬
‫ וְעַ ל כ ְרחֲ ָך אַ תה ע ִתיד ִל ֵּתן ִדין ְוחֶׁ ְשּבֹון‬,‫ וְעַ ל כ ְרחֲ ָך אַ תה מֵּ ת‬,‫ וְעַ ל כ ְרחֲ ָך אַ תה חַ י‬,‫כ ְרחֲ ָך אַ תה נֹולד‬
‫לִ פְ נֵּי ֶׁמלֶׁ ְך ַמ ְלכֵּי הַ ְמלכִ ים הַ קדֹוש ּברּוְך הּוא‬:
And know that all is according to the reckoning. And let not your impulse assure thee
that the grave is a place of refuge for you; for against your will were you formed, against
your will were you born, against your will you live, against your will you will die, and
against your will you will give an account and reckoning before the King of the kings of
kings, the Holy One, blessed be He.
I understand this as claiming that human beings have control of much of their life and
hence are accountable and responsible for the way their lives go. But the very fact of
their coming into existence and that of ceasing to live is beyond their power and hence
not a matter of choice.
From a religious point of view this means, of course, that life is not “owned” by human
beings, that it is a divine gift.
This sets the deep philosophical debate about the end of life.
For here, the symmetry between the beginning of life and its end terminates.
We have indeed no control over our birth, but we do have some control over its end.
Death is inevitable, but its timing is not.
Although we cannot have any say about coming into life, once we are alive we do have
at least the power to put an end to it or decide on the way we want to die.
This is the logical or metaphysical background to the big methodological debate about
the ethics of euthanasia.
From the theological point of view, life is not only a gift of God but also a holy gift.
This is the principle of the sanctity of life, life being viewed as a good beyond all goods, a
condition which should not be violated even in the face of suffering or despair.
To put it in more philosophical terms, life is the underlying condition of all value since
without it nothing valuable can be achieved.
 On the other hand, from the human point of view, life itself is a condition which even if
it cannot be created by will (of the subject living this life), it can be terminated at will.
The challenge for that attitude, which views the value of human life as a matter of will, is
that it is hard to articulate any rational standards in the light of which a person can say
that no life is better than a life with certain quality.
Even if autonomy is the governing principle, that is to say, it is legitimate for people to
find death superior to ongoing life, the reasons for such a preference must be of a
different kind than ordinary preferences one makes within one’s life.
For how can we compare the value of a certain kind of life with the value of any other
kind of life?
This raises the most difficult issue of the morality of suicide which although belonging to
the end of life will not be dealt here.
It becomes relevant only when we deal with so-called “voluntary euthanasia”, which is a
subspecies of suicide.
But it should be noticed that suicide which is mentioned a few times in the Tanach (King
Saul being the most famous case) is not condemned there in Sefer Shmuel.
(Nor is it, by the way, condemned as such in Judas’ death in the New Testament.)
It is only in later development of Jewish thought, probably under Christian (Augustinian)
influence, that suicide becomes a grave sin.
The Jewish Attitude to Euthanasia

“ ‫שם ְיהוָ ָ֖ה ְמב ָ ָֹּֽרְך׃‬

ֵׁ֥ ‫אתי] ִמ ֶ ֶּ֣בטֶ ן ִא ִּ֗ ִמי וְעָ ר ֹּ֙ם אָ ֶּ֣שּוב ָָׁ֔שמָ ה יְהוָ ֶּ֣ה נ ָׁ֔ ַָתן וַיהוָ ָ֖ה ל ָ ָָ֑קח י ִ ְִ֛הי‬
ִ ָָ֜‫ַוי ֹּאמֶ ֩ר עָ ֹֹּ֨רם יצתי [יָצ‬

He said, “Naked came I out of my mother’s womb, and naked shall I return there; the LORD
has given, and the LORD has taken away; blessed be the name of the LORD.”

This phrase, originally from the book of Job (1, 21) and recited by Jews in the face of
death, represents the fundamental attitude to death and its inevitability.
It gives absolute sovereignty to God in the decision and timing of the birth and death of
human beings.
The tone of the phrase is resigning, even fatalistic, but as we shall see it does not mean
human passivity.
Indeed, till medieval times, medical intervention was regarded as a suspicious human
intervention in natural (or divinely determined) processes and at most treated as
permissible (primarily meaning that the doctor is immune from blame if his treatment
does not succeed).
Ramban- Nachmanides (13th century) is a good example for an ambivalent attitude to
medical treatment which is an attempt to interfere with divine providence by employing
natural causes. It is at most a tolerated practice.
However, Maimonides (and all major Jewish attitude to medicine ever since) is decisive
in the positive view that trying to heal is not only allowed but a Mitzvah.
The logical consequence of this is that medical effort to restore health and to extend life
has become a direct duty, both for physicians and for their patients.
Theologically, medical treatment should be applied even when the illness itself is
considered as inflicted by God.
Human beings must do their utmost to further life as long as possible, either by not
risking their own lives or by administering the best medical treatment possible to extend
life’s duration.
In more philosophical terms, although life is a natural, universal and inevitable process,
human intervention to delay it is a moral imperative.
Recent medical means of doing so raise however questions about the thin and
controversial line dividing the natural course of events from the artificial, technological
intervention in this course. This is an inner tension which preoccupies the debate
between rabbis about the limits of human intervention in the struggle for life.
To put it simply- we must ask ourselves: “Are we extending life or prolonging death?”
Death is recognized in the Jewish tradition as a process, and hence as making positive
and negative demands on those around the dying person.
These are included in the “laws of the dying person” (gosses).
The striking thing about these debates is that they reflect the modern, philosophical
distinction between passive and active euthanasia, that is to say, between abstention
from intervening in the process of dying and positive action in that sphere, but they
recognize its dubious implications.
Thus, there is a categorical prohibition on moving the dying person from one place to
another (or to close his eyes, wash him, or indeed touch him) lest his death be hastened.
On the other hand, it is not only allowed but actually obligatory to stop chopping wood
(that is to say, to make a lot of noise), which would prevent natural death and the easy
departure of the soul.
One is under a duty, according to Halacha, to remove salt from the dying man’s tongue,
since salt is a hindrance in the natural process of dying.
The logic of this permission or even obligation is according to the Remah , Rabbi Moshe
Isserles (16th century ) is that in the same way as stopping the source of noise as well as
the removal of salt are both just forms of letting the natural process take its course, so
any other removal of a hindrance to the natural process is a positive commandment.
But of course, formally speaking they are “actions” rather than omissions. This is
directly relevant to the current debate about the question whether there is a moral
difference between not connecting a patient to a respiratory in the first place (starting
chopping wood in order to delay the departure of the soul) and disconnecting the
patient at a certain point (stopping chopping wood when it turns out that this is the
obstacle to the soul’s departure).
Both actions are distinguished from the direct intentional action of moving a dying
patient in order that he dies .
Behind these perceptions there is an implicit underlying view regarding the nature of
death and dying.
The ultimate principle is obviously non-intervention in God’s will, especially with regards
to the termination of life which is considered the holiest of divine manifestations in the
created world.
This principle means that we have to distinguish between natural and unnatural death,
between the medical assistance we must provide to sick people so as to extend their
lives and a passive acceptance of death when it approaches and there is nothing more
we can do.
Again, I ask “Are we extending life or prolonging death?”

The sanctity of life may entail the implementation of so-called aggressive medical
treatment as well as the violation of religious commandments (like keeping the
Sabbath), but it is also compatible with the recognition of the inevitability of death when
it gets unavoidably close.
Although the terminology of euthanasia in the sense of “mercy killing” is alien to Jewish
religious thought, its original etymologically related sense – that is “good or easy death”
– is not.
Even in the Talmud, in Gemarah Sanhedrin, we find that “love thy neighbour as thyself,
implies: choose an easy death for him”. Although this phrase comes in the context of the
humane manner in which executions should be carried out, it is relevant to the attitude
towards the dying person to whom we should show compassion.
The policy of “hands off” or “do not touch” was fairly easy to implement in older times
since the means of delaying death without really giving more life in the full sense of the
word were very limited.
Thus, the techniques of putting salt on the patient’s tongue or blasting sound in his ears
were justifiably considered as unnaturally blocking the easy departure of the soul.
But today, we have extraordinary means of extending one’s life by months and years
and the dividing line between the natural and the unnatural has become blurred.
The Talmudic status of gosses extended for a few hours, or at most a few days. Today,
people are kept alive for years.
Furthermore, as we shall see, the active/passive distinction has become much more
complex and controversial.
So we are faced with a tension in the Jewish tradition regarding the treatment of a dying
person.
On the one hand, any active intervention in the process with the intention of hastening
death is considered murder. Furthermore, the good intention of alleviating the person’s
suffering is no excuse, if one also had the intention to shorten life (Remember the case
of Dr David Moor from week 1).
Compassion, as in the concept of “mercy killing” has no force in the treatment of the
dying. It is God’s sovereign domain to decide the moment of death and even its
circumstances (the degree of suffering involved).
Yet, on the other hand, we see explicit expressions of the place of subtle distinctions to
the effect that beyond a particular point in the process of dying, there is at least a
permission, and maybe even a duty, to remove obstacles from the natural course of
dying and of course not to take active measures to extend it, namely what we today
refer to as “heroic” efforts to keep the dying person alive for a limited time.
Again, I ask “Are we extending life or prolonging death?”
The absolute constraint on such practices is that they are not direct and intentional and
may be considered as a kind of omissions.
This constraint pays due to the absolute relegation of the power to fix the time of death
to God. But these arguments which do not adhere to the literal absolute principle of the
sanctity of life have had a major role in the formation of Jewish approaches to the
modern issue of the treatment of dying patients and some innovative solutions.
It must also be noted that the concept of the sanctity of life is relatively new in Jewish
discourse and mostly absent from the traditional rabbinical debates. This does not mean
that life has lesser value than in other cultures.
On the contrary, from the book of Genesis life is hailed as the ultimate value and its
creation the first and foremost command. Temporary life is often considered of no
lesser worth than eternal life, thus making life’s length irrelevant to its value (“better is
one hour of repentance and good deeds in this world than the whole life in the world to
come”).
Furthermore, the Talmud says that saving one life is equal to saving the whole world,
implying by this hyperbole that a single life is of an infinite value and hence cannot be
“weighted” by any quantitative measure.
However, the Jewish view of the value of life is more “proactive” than that encapsulated
by the concept of sanctity.
The tradition of Jewish debates about the morality of euthanasia does not refer to the
dimension of individual will or wish.
Indeed, the case of suicide and forms of death in execution do raise the question of the
will of the subject of the imminent death (King Saul, or the second-century sage Hanina
ben Tradion, who was tortured to a slow death by the Roman), but the laws of gosses do
not take individual preference into account.
In our contemporary bioethical phraseology, there is no place for voluntary euthanasia.
This of course results from the view that both life and death are not the choice of human
beings (but rather belong to what we referred above as necessity).
But today, due both to the growing power of medical technology and to the wide
recognition of the value of personal autonomy, religious thinking is forced to take a
more critical attitude towards the idea of so-called voluntary euthanasia.
To demonstrate I will quote the 2005 Israeli law of the dying patient, which is typical of
the compromise between the traditional principles of Jewish orthodoxy and modern
social and moral approaches typical of liberal secular society.
The law was enacted in 2005, after a long and very serious work of a committee that
included doctors, lawyers, philosophers and religious thinkers (of the three monotheistic
religions).
It was headed by Dr. Avraham Steinberg, an orthodox doctor and specialist in Jewish
bioethics.
It made an effort to represent the views and interests of all sectors of the highly diverse
Israeli society.
The aim of the law, as it explicitly declares in the opening clause, is to balance the
principle of the sanctity of human life with the principle of autonomy and the
importance of the quality of life of the dying patient.
It also expresses the constitutional principle that Israel is a state which is both Jewish
and democratic.
The only considerations in the medical treatment of the dying patient are, according to
the law, the patient’s medical condition, his or her will and his or her suffering.
A dying patient is defined in the law as a person whose life expectancy, even with
treatment, is no more than six months.
A terminal patient is defined as a person who will die within two weeks, even with
treatment.
Patients within those time spans who clearly and explicitly declare their wish that their
life be not extended must be respected.
There are three limiting clauses in this law:
first, any active deed leading to the intentional death of the patient, even at his request
and even as an act of mercy, is prohibited;
secondly, doctors are forbidden from assisting the suicide of their patients even if this is
asked for by the patient and even if the act is of a medical nature;
thirdly, continuous treatment must not be stopped even at the request of the patient.
Thus, active euthanasia and physician assisted suicide are criminal offense according to
this law.
Yet, the prohibition on disconnecting a terminal patient from life sustaining machines is
qualified in an interesting way:
if the machine stops by itself, the patient may ask not to be re-connected;
furthermore, if the ongoing treatment is “cyclical” in nature, like the periodic change of
oxygen tanks, the doctor may, in accordance with the request of the patient, avoid
renewing the “cycle”.
This is again anchored in the distinction between active and passive euthanasia, which
as we have seen is acceptable by most rabbis.
The idea of distinguishing between continuous and non-continuous treatment was
recently embodied in a technological application.
There are now respirators which are operated by timers. The idea is that the patient
may ask the timer to be fixed to any span desired, longer or shorter. The technology
allows the terminally ill to control the prospect of their life without forcing the physician
to take action which would shorten that life.
To many non-religious members of the committee which prepared the law, the timer
solution looked like a trick, circumventing the moral problem in a disingenuous way.
But as a second thought, this might prove to be a meaningful solution not only to
religiously committed rabbis, doctors and patients, but also a helpful technique to any
physicians who find it morally troublesome to disconnect patients from respirators.
It could appeal to “liberal” doctors and patients who want to relegate the decision about
the moment of death to the patient, although under strict conditions.
The second part of the law goes a step further.
The law recognizes prior instructions by individuals who wish, while they are well and
healthy, to guarantee that if they happen to fall terminally ill and they are not capable of
expressing their autonomous will (e.g. due to loss of consciousness), their lives would
not be extended.
Doctors will not be allowed to apply certain treatments like various forms of
resuscitation, life saving surgery, irradiation, antibiotics, etc.
This is a far-reaching extrapolation of the original laws of gosses we examined earlier.
They still preserve the two main principles of the older norms – limited life expectancy
and prohibition on direct active ways of curtailing life.
But the major change lies in the introduction of the principle of the patient’s autonomy
which is completely new.
A dying patient in full mental capacity can obviously refuse to get treatment, including
antibiotics or even food and liquids.
The law says that doctors should persuade the patient to have some food and drink but
are not allowed to force them.
They should in any case provide the patient with palliative care, including such
treatments that subject the patient to a reasonable risk of life.
But what about the patient who has lost that capacity but left early instructions?
The law says that except for the provision of liquids the doctors should respect the will
of the patient and avoid treatment, including treatment of other illnesses that occur
during the six-month period to which the law applies.
The new law is a fair compromise between the principle of the sanctity of human life
and the principle of autonomy, or between the “pull” of religious views and that of
liberal, secular attitudes.
Like any compromise, the Israeli law been the object of criticism by both parties.
The more orthodox religious sectors either oppose the law directly or ignore it (and wish
to have no use of the rights it provides).
They reject the very idea of advance instructions and the principle of individual
autonomy.
Liberals complain that the law did not go far enough, bending to religious pressure and
making individual and medical discretion on the subtle matter of the end of life
impossible (doctors acting on demands of the family or the patient risking prosecution).
The law, indeed, leaves much of the spectrum of problems relating to the end of life
unsolved.
Most conspicuously, it does not regulate the treatment of people whose condition is
awful but their life expectancy is higher than six months.
Typically people in coma, dementia, Alzheimer disease and other syndromes cannot – by
definition – exercise their autonomy in asking not to extend their lives.
But according to the law in Israel they cannot even give prior instructions while being
still in their full mental capacity.
This seems to many people inconsistent with the general idea that human beings should
have control over the way they end their lives.
But, again, the main reason for this lacuna is that from a Jewish point of view the
condition of this category of patients cannot be considered – even by extrapolation – to
belong to “the dying patient”.
In other words, the Jewish point of view focuses on the time span left for the individual
rather than on the quality of his or her life.
This brings us finally to the issue of involuntary euthanasia, the option not covered by
the law and hence legally prohibited in Israel.
There was a case decided by the Supreme Court more than 20 years ago, still serving as
a binding precedent (as far as I know).
A baby girl suffering from Tay Sachs disease appealed through her mother to the court
asking for a court instruction that once her condition deteriorates in a way which would
require respiratory assistance, transfusion or special medication, the treatment will not
be given to her against her will (represented by her natural custodian, namely her
mother).
This is an immensely difficult case of involuntary euthanasia, a decision about the
termination of life of a human individual who cannot express her will and who could not
have expressed it earlier.
The principle of autonomy is inapplicable to this case since the baby has no will of her
own.
It cannot be exercised by a proxy either, since unlike the cases covered by the law, no
prior instructions or power of attorney were given to the parent or custodian. The only
option left is for a third party, in this case the court, to decide whether the life in
question is worth living.
Supreme Court Judge, Menachem Elon refused to grant the mother the right to stop
treatment and explained his reasoning in a long opinion.
In many respects the Judge’s opinion was based on the Jewish halakhic approach to the
issue.
The structure of his argument was that on the one hand treating the girl might look, at
least prima facie, as an invasion of her body, but refraining from treating her is definitely
a harm done to her life and body, that is to say, it is a dilemma between the value of
privacy and that of the sanctity of life.
In that dilemma, according to Judge Elon, the sanctity of life overrides the value of
privacy, at least as long as the life in question is not accompanied by intolerable
suffering.
But was Elon wrong in characterizing the case in front of the court as that of active
euthanasia.
The whole point of the request of the girl’s mother was to avoid connecting her to
machines rather than to actively hasten her death.
In that respect allowing it could have been interpreted as legitimate according to some
of the opinions of the Jewish tradition, at least if they are read in a flexible manner.