Shabbat and Pikuach Nefesh - Part III by Rabbi Chaim Jachter


            So far, we have discussed the definition of Pikuach Nefesh and how to conduct oneself in a situation of Pikuach Nefesh.  This week, we will discuss some steps to take to avoid a Pikuach Nefesh situation on Shabbat.


Background - Gemara and Rishonim

            The Talmud (Shabbat 91a) presents the rule that one may not embark on a boat trip that will continue through Shabbat, starting three days prior to Shabbat.  The Gemara explains that this restriction applies only to a trip because of "discretionary reasons" (דבר הרשות), but no such restriction applies to a journey taken for the sake of a Mitzvah.  This rule is codified in the Shulchan Aruch (Orach Chaim 842:1). 

            The Rishonim offer a number of varied explanations for this rule.  The two most commonly cited explanations are that of the Rif and the Baal Hamaor.  The Rif explains that it takes more than three days for a person to adjust to sea travel.  If he embarks within three days of Shabbat, he will very likely not be able to enjoy Shabbat (ביטול עונג שבת).  The Baal Hamaor explains that since within three days of Shabbat is considered to be "prior to Shabbat," one who embarks on a ship within three days of Shabbat נראה כמתנה לדחות את השבת, appears to be intentionally putting himself into a situation of violating Shabbat in case of Pikuach Nefesh (Since the seas were dangerous, it was not unlikely that the ship would require forbidden labor to be performed on Shabbat to insure the safety of the ship's passengers).  The Shulchan Aruch (842:2 and 842:4) appears to regard both the Rif's and the Baal Hamaor's explanation to the Halachic norm.

            Interestingly, the Shulchan Aruch states that a trip to go to Israel constitutes a Mitzvah.  The Mishna Berura (842:82) cites opinions that even a visit to Israel constitutes a Mitzvah, and thus, a boat trip to Israel may begin within three days of Shabbat.  We see from here (and elsewhere) that the Shulchan Aruch unambiguously rules that it is a big Mitzvah to move to Israel (especially today when there is a great need for a strengthened presence of religious Zionists in Israel - their enthusiasm for, and love of Israel is a vitally important model for all Jews).

            The Rema (842:4) cites an incredibly lenient approach of Rabbeinu Tam to this issue.  Rabbeinu Tam says that a trip for business purposes or to visit a friend is defined as a trip undertaken for the sake of a Mitzvah.  A trip os defined as a discretionary trip only if the trip is undertaken purely for pleasure.  The fact that the Rema would cite such a seemingly extraordinary leniency, lends credence to Rav Moshe Feinstein's assertion (Igrot Moshe, Orach Chaim 721) that this is only a Rabbinic prohibition.  If this were a Torah prohibition it would have been difficult to fathom that the Rema would countenance such a great leniency (see, however, Rav Hershel Schachter's explanation, (Beit Yitzchak 42:311) for why he believes this is a Torah level prohibition).  Rav Yisrael Rosen (Techumin 61:24) cites the Shulchan Aruch Harav 842:6 who appears to almost explicitly state that this is merely a Rabbinic prohibition (see the Steipler Rav's Kehilat Yaakov Shabbat 41 which agrees that it is only a Rabbinic prohibition).

            It is interesting that some authorities forbid performing either a Brit Milah which is not being done on the eighth day of the baby's life (מילה שלא בזמנה) or the circumcision of a convert on Thursday, because of the great likelihood that the individual will be in great pain or may require medical treatment on Shabbat which involves transgressing Shabbat laws.  See Taz Yoreh Deah 262:3 and Sheilat Yaavetz (Rav Yaakov Emden) II:59, but see Shach (Y.D. 662:81) and Chacham Zvi, addenda no.41.


Elective Surgery Prior to Shabbat

            Rabbi J. David Bleich (Contemporary Halachic problems II: 91 - 032) cites the opinions of Rav Moshe Feinstein zt"l and the recently deceased Lubavitcher Rebbe zt"l who rule based on the sources we have presented, that one is in line for

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elective surgery, he should make sure that the surgery does not take place on Wednesday, Thursday, or Friday.  The Rif's reason is very relevant in this situation since people after surgery are in considerable pain for at least a few days subsequent to the surgery.  The Baal Hamaor's concern is also relevant as post-operative care frequently involves acts of what is defined as forbidden labor on Shabbat.

            Rav Eliezer Waldenburg (Tzitz Eliezer 21:34) takes quite a different approach.  He writes that elective surgery can be defined as an action done for a Mitzvah, because if the surgery has a frivolous purpose it would be forbidden to undertake, as איו אדם רשאי לחבול בעצמו, we are forbidden to wound ourselves (see Baba Kama 19b).  Moreover, it is near impossible for a hospital to arrange for elective surgery to take place solely on Sunday, Monday, or Tuesday.  Indeed, such a policy may lead to the lack of availability of hospital beds, as one cannot accurately plan in advance arrivals in the emergency room.  Indeed, Rav Waldenburg notes that the practice of Shaarei Zedek Hospital in Jerusalem (which is run strictly in accordance with Halacha) is to perform surgery on Thursday and Friday, even if the surgery could have been safely postponed to the next Sunday or Monday.

            There appears to be a simple distinction between Rav Waldenburg's and Rav Feinstein's rulings.  Rav Feinstein and the Lubavitcher Rebbe are addressing themselves to individuals, whereas Rav Waldenburg is addressing himself to the requirements of an entire hospital.  Indeed, perhaps Rav Feinstein would agree to Rav Waldenburg's ruling concerning an entire hospital.

            Rav Yehoshua Neuwirth takes a compromise approach to this issue (Shemirat Shabbat Kehilchata 23:33).  He writes that one should attempt to schedule elective surgery on Sunday, Monday, or Tuesday "only if it is possible."  In note 79, Rav Shlomo Zalman Auerbach is cited as ruling that if a noted surgeon is available for surgery only on Wednesday, Thursday, and Friday then one is permitted to have the surgery performed on those days.


Non-Shomer Shabbat Medical Residencies

            Medical students are typically faced with the following dilemma:  Should they accept a non-Shomer Shabbat residency program offered at a prestigious first-class hospital or a Shomer Shabbat residency at a less prestigious institution (less prestigious hospitals often offer Shomer Shabbat residencies tailored to the needs of observant Jews to attract first rate medical students whom they otherwise would most likely not attract).

            Rav Hershel Schachter very strongly believes that it is forbidden to accept a non-Shomer Shabbat residency (see Beit-Yitzchak 42:311-711).  In fact, Rav Schachter approvingly told this author of a very young man who moved to France in order to be accepted into a Shomer Shabbat residency program.  Rav Schachter outlined quite a number of reasons why he rules so firmly on the strict side on this issue (Rav Aharon Lichtenstein told this author that he agrees with Rav Shachter on this issue, in almost all situations).  Rav Schachter offered a number of reasons for his ruling.  First, the prohibition recorded in the Gemara in Shabbat and the explanation of the Baal Hamaor are relevant in this situation, as the treatment of many or even most patients is not formally defined as a דבר מצוה, Mitzvah matter.  Second, he cites the Talmud (Eruvin 04b) which forbids giving a child wine to drink from Kiddush made on Yom Kippur.  The Gemara posed the question why we do not recite Kiddush on Yom Kippur and suggested that a child drink the wine because דילמא אתי למסרך, because of the concern that the child will become habituated to drink on Yom Kippur.  Rav Shachter points out that there is a concern that if one becomes habituated to forbidden behaviors when they are permitted, then he will maintain these behaviors even when they are forbiden.

            Rav Schachter dismisses the argument that Pikuach Nefesh considerations would permit one to receive superior medical training.  First, he cites the classic ruling of the Noda Biyehuda that Pikuach Nefesh warrants violation of Shabbat only if the sick individual (or sickness see, Chazon Ish, Ohalot 22:23) is currently in need of help.  Second, he cites a responsum of Rav Feinstein (Igrot Moshe Yoreh Deah II : 151) that Pikuach Nefesh considerations do not permit a Kohen to study medicine as no one is obligated to study medicine in order that he able to save lives. 

            Rav Schachter points out that even were the medical student to abstain from any Torah or rabbinically forbidden activity and he spent Shabbat merely observing medical activity at the hospital, he would still run afoul of Halacha.  The Ramban (Vayikra 32:2) asserts that there is a positive commandment to observe Shabbat.  The Chatam Sofer (Teshuvot Chatam Sofer Choshen Mishpat 591) rules accordingly that if one sits in his store or office all of Shabbat, then he has failed to observe Shabbat in the positive sense, despite the fact that he does not transgress any negative command concerning Shabbat.  Similarly, spending Shabbat in the hospital observing medical procedures would be considered a failure to fulfill the positive command of experiancing a Shabbat. 

            These questions are quite complex and obviously one should consult his Halachic advisor if confronted with any of these problems.  Next week we will discuss the issue of physicians, EMT workers, and others being permitted to return home after the emergency has been dealt with.

Pikuach Nefesh and Shabbat - Part IV by Rabbi Chaim Jachter

Shabbat and Pikuach Nefesh - Part II by Rabbi Chaim Jachter