Estate Planning Series Part VI: Living Wills and Health Care Issues - An Overview of Halachic Issues by Rabbi Chaim Jachter and Martin Shenkman, Esq.



            Proper estate planning includes drafting a living will.  It is essential for every Orthodox Jew to sign a living will to insure that he will be treated in accordance with Halacha regarding various medical issues.  These issues include medical care administered towards the end of life, definition of death, organ donations, autopsy, burial, and other important matters.  The Halachic approach to these issues differs greatly from what is generally accepted in American society.  Moreover, since many disputes exist regarding these Halachot, steps must be taken that allow one's Halachic advisor to render a decision on these matters. Because of the medical and Halachic complexities, one's Rav will very likely consult a leading Halachic authority in rendering decisions on matters involving life and death.  The differing Halachic opinions, however, must not prevent anyone from completing proper documents. All authorities agree that a living will should be completed.  If a particular issue cannot be resolved, leave the issue to be resolved by a Rav, but by all means, sign a living will.  Failing to sign a Halachically approved living will may make it difficult, or even impossible, to assure that one's health care decisions will be made in accordance with Halacha.  The next few articles will outline the major concerns and disputes regarding end of life issues and Halacha and provide practical suggestions.


Medical Care Administered towards the End of Life

            The Halacha absolutely forbids any form of active euthanasia.  The Shulchan Aruch (Yoreh Deah 339:1) rules that anyone who hastens death is guilty of murder.  One must take great care when rendering care to individuals who are near death not to hasten the onset of death.  For example, if touching the patient it would hasten death, it may be inappropriate (ibid).  Dr. Avraham S. Avraham (Nishmat Avraham Y.D. 339:3) writes that one may not administer routine hospital procedures to a deathly ill person, such as taking blood pressure and temperature, if these procedures will not help the patient.  The fear is that the routine procedures may hasten death.  If there is no benefit, such procedures cannot be justified Halachically.

            Halacha, generally speaking, forbids passive euthanasia.  The Shulchan Aruch (Yoreh Deah 336:1) writes that one who withholds medical treatment is guilty of murder.  Nevertheless, the Halacha might allow for passive euthanasia in extremely limited situations.  The Rama (ibid.) writes that one may remove an impediment to death.  The Rama specifically permits asking someone to stop chopping wood because the noise is keeping a deathly ill individual from dying.  The Rama permits this because "this is not an action, but only removing an impediment [to death]."

            Accordingly, although Halacha forbids withholding medical treatments, one may eliminate impediments to death.  Obviously, it is extremely difficult to distinguish between these two categories.  Dr. Abraham S. Abraham (Nishmat Avraham Y.D. 339:4) cites the following guidelines from Rav Shlomo Zalman Auerbach in this regard:

We must distinguish between treatments which fulfill a person's basic needs or are accepted as routine, and treatments which are not considered routine.  For example, Halacha forbids withholding oxygen or nutrition from a patient who is suffering from cancer which has spread throughout the body and is near death, even though the patient is experiencing great pain and is suffering terribly.  If he is diabetic, one may not withhold insulin from him with the intention that he dies sooner.  One may not withhold blood or antibiotics that are necessary for his care.  One may not withhold these treatments even if the intention for doing so is not to hasten the patient's death.  On the other hand, we are not obligated to administer non-routine and painful treatments, which only serve to lengthen life and do not cure the fundamental problem.  This especially applies if the patient objects to such treatment because of the suffering he would be forced to endure as a result.

            Dr. Abraham adds that if it is a hopeless situation, there is no obligation to revive such a patient if doing so will merely serve to amplify the patient's suffering.  Rav Moshe Feinstein fundamentally agrees with these guidelines (Teshuvot Igrot Moshe Choshen Mishpat 2:73:1). Rav Hershel Schachter (B'ikvei Hatzon, page 228 citing Rav David Zvi Hoffman's Teshuvot Melamed L'hoil (2:104)) adds that there are circumstances in which the decision whether to administer a particular procedure may be made by the patient. Obviously, these distinctions are extremely delicate and only a Rabbi of great stature should render a decision on these matters.

            Not all Halachic authorities agree with these guidelines.  Some authorities believe that one must prolong life under all circumstances (see Rav J. David Bleich's Judaism and Healing, pages 134-145).  They believe that Halacha forbids withholding any medical treatment from any patient.  They argue that the Rama only permits removing a non-medical impediment such as the woodchopper in the specific situation he addressed.  Accordingly, it is vital that one completes a living will so to empower one's Halachic advisor to render an appropriate decision should the situation, God forbid, arise.  Moreover, a statement indicating one's attitude regarding heroic measures administered to deathly ill individuals will sometimes constitute an important component of a Halachic authority's decision in this area.


Narcotics and Other Pain Relief in Near Death Patients

            Narcotics or other pain relievers are commonly administered to relieve pain and suffering. This is especially true when doctors have given up hope of curing the patient, and the patient is near death.  The question arises whether Halacha permits the administration of pain relief in such circumstances where the medication may hasten death.

            Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 13:87) permitted the administration of pain medication in such circumstances.  He presents two reasons for this ruling.  First, he notes that relieving pain is a legitimate medical objective.  Hence, since Halacha permits care givers to take risks in the attempt to heal a patient (see Ramban, Torat Ha-adam Shaar Ha-sakanah), one may risk the life of the patient in the attempt to eliminate his pain.  Second, the serious pain endured by the patient may itself cause harm or even death.  Thus, in some circumstances, pain relief may actually extend the life of the patient.

            Rav Shlomo Zalman Auerbach (cited in the Nishmat Avraham Y.D. 339:4) essentially agrees with this ruling save for one circumstance.  Rav Shlomo Zalman forbids administering morphine when a particular injection entails the risk of causing the patient to stop breathing.  He agrees with Rav Waldenberg only when the aggregate of pain relief does not entail this risk. The risk in many situations is minimal, so pain relief may be permitted.  But the benefits and risks can vary considerably depending on the patient's condition and the procedures to be followed. Thus, it is vitally important to designate a Halachic authority in the living will who will consult with the attending physician and help decide which of these opinions should be followed in the particular circumstances.


Practical Considerations

            There are a number of practical considerations which one should consider in planning his living will to assure that his intent to follow Halacha is respected.  Separate documents should be signed as one's living will (statement of one's health care preference) and a health care proxy (appointing one's health care agent).  Each document should specify that health care decisions are to be applied in a manner consistent with Orthodox Jewish law, "Halacha."  One should have either (i) a particular Rabbi, (ii) a Rabbi selected by his agent, or (iii) a Rabbi appointed by an organization which is expressly named to resolve any Halachic issues.  Be practical: If the Rabbi one names cannot be reached, who will address Halachic issues?  List several alternates and include several telephone numbers for each (home, office, cellular) in the document. Sign several original living wills.  One's doctor, Rav, and agent should each hold one.  One should also endeavor, although it is obviously difficult, to discuss these issues with family, the persons named as agents, and one's Rav in advance.  These discussions will enable those involved to better implement one's wishes within the guidelines of Halacha.  It will help them better anticipate how different circumstances may affect the person.  Most importantly, these discussions, however difficult, will make the decision process less traumatic for your family if God forbid such a situation arises.


Organ Donation

A proper living will specifies whether one wishes to donate organs, and if so which organs you wish to donate.  There are many areas of debate among Halachic authorities regarding organ donation.  First, one may contemplate the permissibility of donating a heart, lung, and liver only if the Halacha recognizes brain death as a definition of death.  Currently, doctors can harvest certain organs only from donors whose hearts are still functioning.  Contemporary Halachic authorities have engaged in vigorous debates regarding the Halachic definition of death, and in particular whether brain death constitutes an appropriate determination of death under Halacha.  These definitions are essential to the determination of the permissibility of organ donations.  In the next issue, God willing and Bli Neder, we will discuss this highly controversial issue.

Estate Planning Series Part VII: Living Wills, Health Care Issues- The Definition of Death by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.

Estate Planning Series Part V: Yerusha - Disinheritance by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.