How might traditional texts help us negotiate sensitive choices at the end of life?
Today’s medical circumstances allow extending life to an extent not known to preceding generations. Thus, there is more and more reason to raise questions about people living longer than they wish. When should people be allowed to decide for themselves the circumstances under which they want to return the gift of life? And might one be allowed to assist a person who has decided to do so?
Before the publication in 2018 of “Quality of Life at End of Life: The Evolution of Key Concepts,” an article by David Teutsch and me, the contemporary halakhic discourse had offered no answers to these questions. In that article, we argued that, under very special and limited circumstances, one may voluntarily return the gift of life or that one might assist a person in doing so.[fn]“Quality of Life at End of Life: The Evolution of Key Concepts,” Journal of Jewish Ethics 4:2, 2018, pp. 163-197, with all references.[/fn]
When I presented the main ideas of our paper at a conference in Munich (Germany) on “End-of Life: Jewish Perspectives. Facing Aging and Old Age” in March 2019, I discovered that many participants do not want to decide themselves about the end of their life. Rather, they look for answers to these questions within the Jewish tradition.
At first glance, however, it seems pointless to seek answers from Jewish sources, given the absolute prohibition of suicide and thus assisted suicide in the biblical and ancient rabbinic traditions. Life is generally considered a great good by those traditions, given and taken by God. For instance, the daily morning prayer Elohai Neshamah, based on the Babylonian Talmud, Berakhot 60b, ascribes the exclusive right to give and take life to God as creator. God as creator (koneh) is regarded as the possessor (koneh) of all of creation, including every life. Consequently, only a few cases of suicide are known from ancient Jewish tradition.[fn]For instance, the case of King Saul and his arms-bearer (1 Sam. 31:4–5). However, this case was justified by some commentators as having occurred under special conditions, so that it is insufficient, like the other exceptional cases, to support a conclusion that suicide was permitted in biblical times.[/fn]
There are, however, a number of texts that may be helpful to those of us who want to ground our life-and-death decisions in our inherited wisdom.
According to some interpretations found in ancient rabbinic Judaism, suicide is generally prohibited. Not surprisingly, the ancient rabbinic tradition only mentions a few further cases of suicide. One of these rare exceptions is the case of 400 children who jumped into the sea in order not to become victims of child abusers (B. Talmud Gittin 57b). The fact that this suicide is commented upon in the Talmud only by quoting Ps. 44:23 might demonstrate the silent agreement that this instance of suicide is perceived as legitimate martyrdom/kiddush ha-shem (sanctification of the Divine name): “It is for Your sake that we are slain all day long, that we are regarded as sheep to be slaughtered” (NJPS). Consequently, martyrdom becomes limited in the talmudic tradition to three exceptions: the choice between death and being forced to commit murder, public idolatry or incest. In these three cases, suicide is even commanded; however, it is committed for the sake of God, not for one’s own sake or benefit. These exceptions prove the rule that most Jewish traditions attribute an ultimate obligation to protect and serve life, piku’akh nefesh.
Nevertheless, there are more flexible and lenient medieval Ashkenazic traditions (later adopted by Sephardim) that prioritize the situation of suffering ill persons and their perspectives over absolute rulings and prohibitions. One such medieval Ashkenazic source explicitly switches the perspective from the Divine to the human evaluation of life. By doing so, it anticipates the modern focus on the individual’s perspective and autonomy by referring to the dignity and agency of the dying person. This story is about the ancient halakhist Jose ben Halafta from Sephoris in Galilee, who was active around 130–60 C.E. It only appears in a late collection of Midrashim, Yalkut Shim’oni, that is attributed to Simon ha–Darshan, “the preacher,” from Frankfurt on Main, suggesting that it only became relevant in 13th-century Ashkenaz.
של נ[י]וול הם שאיני טועמת לא מאכל ולא משקה ואני מבקשת להפטר מן העולם, א”ל מה מצוה את למודה לעשות בכל יום, א”ל למודה אני אפילו יש לי דבר חביב אני מנחת אותו ומשכמת לבית הכנסת בכל יום, א”ל מנעי עצמך מבית הכנסת שלשה ימים זה אחר זה, הלכה ועשתה כן וביום השלישי חלתה ומתה, לכך אמר שלמה אשרי אדם שומע לי וגו’. מה כתיב אחריו כי מוצאי מצא חיים.
A very old woman is tired of living and therefore tells R. Jose ben Halafta that she dislikes her life as a “life of degeneracy or disgrace,” hayyim shel nivvul, since she can no longer enjoy the taste of food or drink, and therefore wanted to die. R. Jose asks her which commandment she observes daily, and she replied that she goes to synagogue early every day, even if she has to interrupt something dear to her in order to do so. R. Jose advises her not to go to synagogue for three consecutive days. She follows his advice, falls ill on the third day and dies. Apparently, going to synagogue and thus praying served as her life-maintaining measure; interrupting it caused her death. Therefore, the Midrash refers to Mishlei/Proverbs 8: 34-35 as a proof: “Happy is a person who listens to me, coming early to my gates each day, […] for the person who finds me finds life … ”
It is significant that a halakhic authority provides a way to speed death even though the old woman was not suffering from a serious illness or great pain. She does not want to live because she sees her life as hayyim shel nivvul, “life as degeneracy or disgrace,” thus bereft of kavod, “dignity.” This expression is not found in the ancient rabbinic literature; it is presumably used here for the first time. It is also innovative that the old woman evaluated her life according to her own criteria of a worthwhile life—enjoying the taste of food and drink—and drew the conclusion that without this enjoyment, her life was without worth. Moreover, her criteria for her evaluation were not questioned by the rabbi, but implicitly confirmed since he gave her advice on how to die quickly: interrupting the life-maintaining measure of going to synagogue.
Thus, her death is essentially caused by telling her how to withdraw her life-maintaining measure. R. Jose’s advice can be interpreted as active assistance in bringing death. Moreover, the story legitimates looking for a way to speed death even in a case where someone is not in physical pain or suffering from an illness, but only from the loss of the enjoyment of life and dignity, kavod. Or conversely: Losing the enjoyment of life and kavod is considered a sufficient amount of suffering. Thus, the importance of this case cannot be overestimated since it concedes a great measure of agency to the old woman for evaluating the value of her life from her own perspective—against Jewish traditions that tell us “to evaluate life from God’s perspective.”
This medieval case paves the way to the modern understanding of kavod as “human dignity.” Ancient Jewish traditions, however, use the term k’vod ha-briyot, literally, “the dignity of creatures,” in a more limited sense. Here are several examples:
1. R. Yokhanan ben Zakkai (passed down in the ancient Midrash) explains with k’vod ha-briyot why in Exodus 21:37 someone who stole an ox has to pay a fine that is five times the value of the ox, whereas someone who stole a sheep only has to pay four times the value. According to R. Yokhanan, God takes the “dignity of creatures” into consideration. Because the thief has to take the sheep on his shoulders in order to carry it away, his dignity is reduced and therefore his fine is reduced.[fn]Mekhilta de-R. Yishma’el, Mishpatim 13.[/fn]
2. In the Talmud, prohibitions imposed by the rabbis can be overridden by rabbis on the basis of Deuteronomy 17:11 to avoid violating k’vod ha-b’riyot.[fn]B. Talmud Berakhot 19b.[/fn]
3. This exemption from a rabbinical prohibition is illustrated in B. Talmud Shabbat 81b, where the consideration of k’vod ha-b’riyot permits carrying stones to the roof of one’s house on Shabbat in order to clean oneself after having defecated, thereby violating the rabbinical prohibition to carry stones on Shabbat.
4. Similarly, according to B. Talmud Shabbat 94b, one may also carry a corpse on Shabbat in “a neutral area” (karmelit), thus violating the rabbinical prohibition against carrying.
From these very specific cases, it is difficult to deduce a general principle of human dignity that would entitle someone to make purely autonomous decisions based on Torah about how to shape the end of one’s life. Therefore, k’vod ha-b’riyot must be combined with another meta-principle or basic axiom: that human beings are created in God’s image, b’tzelem Elohim (Gen. 1:27). A person’s worth and dignity have roots in an extrinsic concept that sanctifies all human life: “Whoever sheds human blood shall have their blood be shed by another; for in God’s image did God make humans” (Gen. 9:6).
This concept primarily confirms the utmost value of every life. At first glance, it would prevent any attempt to use it as a justification for deciding autonomously about the end of one’s life. However, if this concept is interpreted in the context of the creation stories in Genesis 1–2, it can be understood as supporting an individual’s agency even in end-of-life decisions: Immediately after their creation, the first woman and man are commanded to be fertile and increase, to master the earth and rule over every living being (Gen. 1:28). According to Gen. 2:15, God places Adam in the Garden of Eden to work and to protect it. Created in God’s image, men and women continue God’s creation by their procreation, and thus receive agency as God’s co-creators and partners.
The modern open Orthodox Rabbi Herzl Hefter[fn]Herzl Hefter, “Why I ordained women,” The Blogs. The Times of Israel, July 19, 2017, http://blogs.timesofisrael.com/why-i-ordained-women/[/fn] , Rosh Beit Midrash Har’el in Jerusalem, goes even further by arguing “that human consciousness is the instrument of divine revelation” since humans are created in God’s image. Therefore, “God is revealed through human consciousness”; hence, “our refined moral convictions and religious sensibilities may be considered a form of Divine revelation.”
If God is not the sole and absolute owner of life because God has enabled humans created in God’s image to refine “moral convictions and religious sensibilities,” why should this not be true for end-of-life decisions? The kabbalistic concept of God’s retraction or tzimtzum makes space for Creation and for human agency. It carries with it the obligation of human beings to decide for themselves. This harmonizes with the rabbinic principle that the Torah is “not in heaven.” Torah’s development depends upon God’s human partners. This relationship is also expressed in the concept of the covenant, brit. One way of understanding this covenant is that the human partner should be allowed to decide under which circumstances they want to return the gift of life.
Considering these developments in the halakhic tradition since the Middle Ages, David Teutsch and I have defined three clear justifications for suicide, and therefore for assisted suicide: preserving kavod in the face of increasing mental or physical incapacitation; avoiding otherwise inescapable pain; and exhausting the will to live in old age. Given the rapid advances in the field of medicine, it is time for reconsideration of this issue by Jewish bioethicists. Once there is an agreement on even a single ethical circumstance permitting assisted suicide, then we can begin to explore which safeguards would be required to create an acceptable public policy.