Estate Planning Series Part X: Living Wills, Health Care Issues, and Autopsies by Rabbi Chaim Jachter and Martin M. Shenkman Esq.



            In past issues we have referred to Halachic debates regarding the issue of autopsies.  In this issue, we will take a closer look at this debate and its ramifications for estate planning.


Talmudic Background

            The Gemara (Chullin 11b) notes that the Torah is prepared to sanction an autopsy on a murder victim to either secure conviction of the murderer or to spare the life of an individual accused of the crime.  Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 4:14) cogently notes that this passage in the Gemara clearly indicates that in conventional circumstances, autopsy constitutes a biblical prohibition.  The Gemara states that only in extraordinary circumstances does the Torah sanction the performance of an autopsy.


Eighteenth and Nineteenth Century Rulings - Noda B'Yehudah, Chatam Sofer, and Binyan Tzion

            A very serious question was posed to Rav Yechezkel Landau (Teshuvot Noda B'Yehudah Yoreh Deah 2:210) in the late seventeenth century.  This case involved the permissibility of performing an autopsy on a patient that died in London due to complications that arose during a routine surgical procedure.  The surgeons sought permission to perform an autopsy on the patient to learn if it was they who had made a mistake during the surgery.  This, they believed, would help them avoid making similar mistakes in the future.

            Rav Landau replied that Halacha forbids the autopsy.  He argued that although the aforementioned Gemara in Chullin sanctions an autopsy to save a life, nonetheless he forbade the autopsy in the circumstance presented to him.  He argued that the Torah sanctions autopsy only to save the life of someone who is presently in danger of losing his life (L'faneinu).  He reasoned, reductio ad absurdum, that if one considered the circumstance in London as Pikuach Nefesh then all medical preparations would be permitted on Shabbat, because perhaps a dangerously ill person may need it.  Moreover, he reasoned, if he permitted autopsy then surgeons would routinely perform an autopsy on every patient who died under their care.  Rav Landau considered this to be profoundly intolerable.

            The Chatam Sofer (Teshuvot Y.D. 336) agrees with the Noda B'Yehudah.  He adds that the Torah forbids benefiting from the dead, and thus Halacha forbids autopsies.  He is almost certain, though, that autopsies may be performed to save the life of a dangerously ill person who is L'faneinu.  The Chatam Sofer adds that Halacha forbids donating one's body for medical research after death.  He argues that the Torah forbids us to denigrate our bodies after death and that denigrating our bodies denigrates the Creator as well (based on the Ramban to Devarim 21:22).  He explains that since the body served as a receptacle for the soul during life, it retains a measure of holiness even after death.

            Rav Yaakov Ettlinger (Teshuvot Binyan Tzion 170) argues that Halacha forbids autopsies even to save the life of a dangerously ill person who is L'faneinu.  He cites Rashi (Bava Kama 60b, s.v. Va'yatzila) who forbids stealing even to save a life.  He argues that even Tosafot (ibid, s.v. Mahu) and the Rosh (Bava Kama 6:12), who permit stealing to save a life, would forbid an autopsy to save a life.  First, the Binyan Tzion believes that Tosafot's and the Rosh's rulings apply only when the thief will compensate the victim.  Rav Ettlinger notes that monetary compensation to the heirs does not constitute adequate restitution for this matter.  Second, Tosafot's and the Rosh's ruling only apply to theft from a living individual who is obligated to save lives.  This obligation sanctions the theft but without this obligation, Halacha prohibits the theft.  Thus, since a dead person is not obligated to perform Mitzvot, Halacha forbids stealing from a dead person in the form of an autopsy.

            The Maharam Schick (Teshuvot Y.D. 347-348) vigorously disputes this ruling of the Binyan Tzion and defends the Noda B'Yehudah and Chatam Sofer's permission to perform an autopsy to save the life of a dangerously ill individual who is L'faneinu.  Indeed, Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 4:14) points out that the aforementioned Gemara in Chullin seems to clearly disprove the thesis of the Binyan Tzion.


Twentieth Century Rulings

            Rav Moshe Feinstein (Teshuvot Igrot Moshe Y.D. 2:151) endorses the ruling of the Noda B'Yehudah.  He does, however, permit removing fluids from the dead if this will further study of the malady that the dead individual had suffered from.  Rav Feinstein permits this only if the removal of the fluids does not involve the cutting of limbs or opening of the neck or stomach.  This permission seems to apply even if there is no dangerously ill person L'faneinu.

            Rav Waldenburg (Teshuvot Tzitz Eliezer 4:14) writes that "there is room to permit" an autopsy on a murder victim in order to discover the identity of the murderer and to punish him.  He notes that the aforementioned Gemara in Chullin and the Noda B'Yehudah seem to support this point.  Indeed, Rav Moshe Snow (a student of Rav Moshe) told this author that Rav Moshe Feinstein had sanctioned an autopsy in order to discover the identity of the murderer of a Yeshiva student.  Rav Moshe issued this ruling in the context of a tragic incident that had occurred a number of decades ago.

            Rav Yechiel Yaakov Weinberg (in a responsum published posthumously in Techumin 12:382-384) suggests that in the era of modern telecommunications the category of L'faneinu should be greatly expanded.  He notes that today a medical discovery in Jerusalem can potentially save a dangerously ill patient in New York seconds later.  Accordingly, the number of autopsies permitted in contemporary times to further medical knowledge should be increased.  Most Halachic authorities do not appear to subscribe to this line of reasoning.  Indeed, in the aforementioned responsa of Rav Feinstein and Rav Waldenberg, no hint of this reasoning appears, despite the fact that these responsa were written in the modern era.  Dr. Avraham S. Avraham (Nishmat Avraham Y.D. page 257) explains why even in the era of modern telecommunications the dangerously ill throughout the world are not considered L'faneinu.  He explains that he has never heard of a case where a life-saving piece of information was discovered in the course of an autopsy and was immediately communicated to every hospital in the world.  Any vital information discovered in an autopsy would not be published in medical journals at least until one year after the finding.


Conclusions Concerning Autopsy

            There exists some debate about when Halacha sanctions an autopsy.  All agree, however, that the Halachic attitude towards autopsy differs drastically from the secular view of this topic.  Thus, it is vitally important that one make provisions in a living will that Halachot concerning autopsies will be honored.  It is also exceedingly important to provide a mechanism in one's living will to decide which Halachic opinion should be followed.

            Next week, God willing and Bli Neder, we will discuss the Halachic view towards telling a patient the truth about his or her condition.

Estate Planning Series Part XI: Living Wills, Health Care Issues- Must the Patient be Told the Truth? by Rabbi Chaim Jachter and Martin M. Shenkman, Esq.

Estate Planning Series Part IX: Living Wills, Health Care Issues: Skin Donations by Rabbi Chaim Jachter and Martin M. Shenkman Esq.