March 28, 2005
By Rabbi Yitzchok A. Breitowitz
For the past 15 years, Terri Schiavo has been severely brain damaged, incapacitated and unable to feed herself. Most have described her as being in a persistent vegetative state(PVS) though a minority believes that such a diagnosis is inconclusive. PVS patients lack cognition, awareness, and ability to interact with their environment; such patients do have alternating cycles of sheep and wakefulness so their eyes may be open but they do not track or follow visual cues. They probably (not certain!) do not feel pain but they nevertheless may respond reflexively if, e.g., a needle is stuck in their arm. At some point, their PVS status is essentially irreversible. It is important to note that even if Terri Schiavo is in a persistent vegetative state – a point that some deny – she is not “brain dead.” Her brain stem continues to coordinate her bodily functions such as respiration, digestion, and temperature. She breathes on her own with no mechanical support. Her internal organs and systems are perfectly functional. She is able to take in and digest nutrition. If one were to shoot her, the perpertrator could be tried for murder not only halachically but legally as well. Terri Schiavo was kept alive by “artificial means” in the same way that a baby is kept alive artificially because we need to feed it. She is not on life support. Nor is she in a terminal condition where death is imminent; indeed, she did live and could continue to live for many years.Her life may lack quality but there is no question that she was alive when the feeding tube was removed.
In the landmark Cruzan case, the Supreme Court of the United States ruled that if there is clear and convincing evidence (as shown by a living will or otherwise) that a patient would not want to be kept alive in a persistent vegetative state, that patient has a constitutional right to have artificial feeding discontinued. The Court refused to distinguish between tube feeding and any other medical procedure; it refused to distinguish between a decision to not put in a tube and a decision to withdraw one that was already inserted; it refused to distinguish between terminal and nonterminal patients or between those who suffer pain by continuing treatment and those who will not. The right of a patient to have tube feeding discontinued in the event of PVS is absolute and because it is grounded in the constitutional right of privacy could not be limited by state or federal law. Thus, had Terri Schiavo indicated her wishes in a living will, there would be no legal controversy whatsoever; her wishes would have to have been respected.
The problem is that she left no document evidencing her desires. Her parents and husband are deadlocked regarding what her true wishes are. The state courts in Florida have supported the husband’s position that feeding be discontinued and inspite of an extraordinary private law passed by Congress requiring that the case be heard again in the federal courts, federal courts have gone the same way.
The Schiavo case raises major legal questions: (1) who has the authority to speak for a patient when the patient is unable to speak for themselves, and has left no evidence of his/her wishes; (2) what standards should guide the surrogate decision maker; (3) what evidence will be considered sufficient to insure that the standard has been met. More importantly for our purposes, the case obviously raises fundamental moral questions as well. Regardless of Mrs. Schiavo’s wishes (which would be definitive under U.S. law), is it ethical to remove food from a comatose patient who will effectively die of starvation? Does life beyond a certain point cease to have value that is worth sustaining? Does halacha recognize a “right to die”?
Briefly stated, the Jewish tradition rests on a number of assumptions:
- The preservation of life [pikuach nefesh] is considered to be of paramount importance, surpassing virtually all of the other commandments of the Torah. One may and must violate Yom Kippur or the Sabbath, eat non-kosher food, etc. if there is the slightest chance that human life may be preserved or prolonged.
- The quality and/or duration of the life being saved is irrelevant. Life is of infinite, not relative, value and mathematically, any fraction of infinity must also be infinite. Once life is assigned a relative value – once we start making judgments as to which lives are worth living and which are not, once we assign value to people because of what they can do instead of what they are we have demeaned the intrinsic sanctity of existence for all human beings and have embarked on a dangerous exercise of line drawing. What about the elderly, what about the severely retarded, what about the handicapped: are they any less human because their productivity is impaired?
- Judaism rejects the notion of unlimited personal autonomy. Our bodies and our lives are not our own to do with as we will. They are temporary bailments given to us by G-d for a specific purpose and duration which only G-d can terminate and just as we don’t have the moral right to kill or harm others, we don’t have the moral right to kill, maim, or injure ourselves or to authorize other persons to do those things to us.
- Judaism rejects the notion that the utilization of advanced technology to sustain life is somehow an interference with G-d’s will. Technology and scientific advancement are not man-made but are in themselves gifts of Divine revelation to be used for the benefit of mankind. Thus, the dichotomy that some religions posit between “natural” and “unnatural” ways of treating illness is essentially foreign to Jewish thinking.
These four factors standing alone would surely argue against any “right to die” and would support an absolute affirmative obligation to prolong life at all costs, regardless of pain and indeed regardless of the patient’s expressed wishes. This is in the fact the position associated with the eminent Talmudist and bioethicist, Rabbi Dr. J. David Bleich of Yeshiva University. It is, however, a decidedly minority position.
Halacha, as all well-developed ethical systems, cannot and does not focus on a single moral value to the exclusion of others but seeks to balance, accommodate, and prioritize a multiplicity of ethical concerns. Just as there is a mitzva (a Divine commandment) to prolong life, there is a mitzva to alleviate pain and suffering. But what happens if one value can be achieved only at the expense of another? Consider the patient suffering terminal cancer whose life could be prolonged for no more than six months but only at the cost of painful, debilitating chemotherapy or the elderly stroke victim who falls prey to pneumonia which will kill him swiftly and relatively-painlessly overnight but is easily treatable by antibiotics. May the patient decline the chemotherapy or the antibiotics to achieve a quicker, less painful death or is the mitzva ofpikuach nefesh (preservation of life) so absolute that it admits of no exceptions?
Most rabbinical authorities (Rabbi Moshe Feinstein, for one) have sanctioned the patient’s right to decline treatment provided a number of very specific conditions were met. First, the patient must be in a terminal condition – that is, whether the treatment is employed or not, the patient is not expected to live beyond a year and there is no reasonable prospect that his condition can be cured.. Second, the patient suffers unbearable pain and suffering which can include psychological as well as physical anguish.. Third, the patient has indicated that he or she desires not to be treated. In the event the patient is incompetent or unable to communicate his decision, next-of-kin may make such a decision based exclusively on what they feel the patient would have wanted (Note: This is not based on what they would have wanted if they would have been the patient but rather what this particular patient would actually desire). Fourth, assuming the above three conditions are met, the patient may decline surgery, chemotherapy, and painful invasive treatments but may not decline food, water, or oxygen (which are the normal sustainers of life, the withdrawal of which may be tantamount to murder or suicide). Antibiotics may also fall under the “food” category because they are generally a noninvasive, nonpainful procedure. There is also some question whether tube feeding falls in the category of “food” or in the category of “surgery”. Most decisors would place it in the former but emphasize that even if the patient is halachically-obligated to take artificial nutrition, he should not be force-fed or physically-restrained. In no event may the patient or the physician take any affirmative step that would hasten death. Active euthanasia, regardless of motive, is morally and halachically equivalent to murder. On the other hand, halacha would view both the goals and methods of hospice in a very sympathetic light.
The Importance and Drawbacks of Advance Directives
Judaism thus attempts to strike a balance between the great mitzva of prolonging life and the recognition that life may become unbearably difficult and painful. The living will, however, which attempts to spell out in advance which treatments should be employed and which should not is too blunt of an instrument to accurately mirror the necessary value judgments. The basis for all of these decisions is the pain and suffering the patient feels at the time of the illness and this can simply not be predicted in advance. Conditions that may seem intolerable to us when we are 35-40 may be quite adequate when we reach 85 and we realize that the alternative would be death. Keep in mind too that many patients such as those with advanced Alzheimer’s or in comas may in fact not be suffering though their existence is undoubtedly a hardship to their families. Moreover, it is almost impossible to spell out all contingencies in advance, making living wills incomplete almost by definition.
Far preferable to the living will is the durable power of attorney (often called a health-care proxy) which simply specifies a person-family member, friend, clergyman – empowered to make health care decisions on the patient’s behalf in the event he or she is incapacitated. The power may in addition specify that all decisions shall be made in accordance with Jewish law and in consultation with a designated clergyman of the patient’s choice. Sample forms – labelled somewhat inaccurately as “Halachic Living Wills” -have been prepared by Agudath Israel of America, a national organization headquartered in New Yorkand are available on www.jlaw.com. This document insures that decisions will be made consistently within the moral and religious beliefs that the patient holds dear. Obviously, one should discuss these delicate matters ahead of time both with family members and spiritual advisers.
The Schiavo Case
As noted before, Terri Schiavo is not brain dead nor is her life being maintained by artificial means. She is not in a terminal condition. As a result, there is an affirmative obligation to keep her alive and a prohibition against the shortening or termination of her life. To the degree that she feels no pain or suffering as a result of her vegetative state, any halachic dispensation to discontinue treatment in order to spare her further suffering cannot by definition exist since by hypothesis there is no suffering from which she needs to be spared. To the degree that she may feel pain and suffering, painful, invasive treatments such as chemotherapy, surgery, or CPR could indeed be discontinued but the supply of nutrition could not. Keep in mind that death by starvation is in itself extremely painful and to the extent that she does feel pain, withdrawal of the tube will aggravate it (her pain) rather than alleviate it.There are thus three separate reasons why halacha would prohibit what was done in this unfortunate case:1)the duty to sustain life can only be set aside in the face of unbearable suffering-a factor that seems to be absent;2)even when suffering does exist,there is a duty to provide the patient with nutrition ;3)withdrawal of an already –inserted tube is not simply a failure to treat but can be regarded as an actual murder which can never be countenanced . Jewish law would not support the discontinuation of her feeding and indeed even an explicit living will could not change that fact.
Incapacitation and terminal illness are tragic situations. Let us remember, however, that we come from a tradition that has grappled with these questions and that approaches these issues with sensitivity, compassion, and understanding. Hopefully, none of us will ever be faced with these problems but if we are, let us turn to our tradition for guidance and support. YAB 3/28/05.