Jewish Medical Ethics:
A 21st Century Discussion
ABOUT THE AUTHOR
Elliot Dorff , PhD
Elliot Dorff was ordained a Conservative rabbi by the Jewish Theological Seminary of America in 1970 and earned his Ph.D. in philosophy from Columbia University in 1971 with a dissertation in moral theory. Since then he has directed the rabbinical and Masters Programs at the American Jewish University where he currently is Rector and Distinguished Professor of Philosophy.
Rabbi Dorff is Chair of the Conservative Movement’s Committee on Jewish Law and Standards and served on the editorial committee of Etz Hayim, the new Torah commentary for the Conservative Movement. He has chaired four scholarly organizations: the Academy of Jewish Philosophy, the Jewish Law Association, the Society of Jewish Ethics, and the Academy of Judaic, Christian, and Islamic Studies.
Rabbi Dorff has served on several commissions of the federal government. He served on the Ethics Committee of Hillary Rodham Clinton’s Health Care Task Force, and testified on behalf of the Jewish tradition on the subjects of human cloning and stem cell research before the President’s National Bioethics Advisory Commission. He was part of the Surgeon General’s commission to draft a Call to Action for Responsible Sexual Behavior; and served on the National Human Resources Protections Advisory Commission, charged with reviewing and revising the federal guidelines for protecting human subjects in research projects. He is now a member of the Broader Social Impacts Committee for the Smithsonian Museum of Natural Science. He is also a member of the Ethics Advisory Committee for the State of California on stem cell research.
In Los Angeles, he is a Past President of Jewish Family Service, and he is a member of the Ethics committee at UCLA Medical Center. He serves as Co-Chair of the Priest-Rabbi Dialogue of the Los Angeles Archdiocese and the Board of Rabbis of Southern California.
Rabbi Dorff’s publications include over 200 articles on Jewish thought, law, and ethics, together with thirteen books that he wrote and another fourteen that he edited or co-edited.
ABOUT THE COURSE
Lesson 1: Cloning of Plants, Animals, and Humans. Human beings long ago tried to cultivate those crops and raise those animals that were the most robust and the most resistant to disease. Cloning adds a new, powerful tool to those efforts, enabling us to reproduce exact copies of those plants, animals, and possibly someday, humans that society finds most desirable. That, however, raises major moral problems, as this lesson explores. We begin, then, with one of the oldest and yet newest topics in bioethics, the attempt to improve on nature.
Lesson 2: Prenatal Interventions and the Termination of Pregnancy. This lesson will discuss the use of various forms of fetal diagnosis to avoid diseases, to reduce the risk to the mother carrying multiple fetuses, or to create designer children or a master race. It will also treat the subject of how to balance an ability to diagnose fetuses and abort them, if undesirable for some reason, with the broader problem posed by Jewish demographics.
Lesson 3: Surrogate Motherhood and Multiple Parents. This lesson first explains the types of surrogacy. It moves on to discuss arguments for and against using surrogate mothers, including the impact of having multiple fathers and mothers created by modern artificial reproductive techniques like artificial insemination, egg donation, and surrogacy on the adults and children involved. Finally, it discusses an example of the legal problems that can occur in surrogacy and the controversy over recent amendments to an Israeli law governing surrogacy.
Lesson 4: Sperm Banking and Posthumous Sperm Retrieval. Because sperm for sperm banks is usually produced through masturbation, this lesson first discusses the status of masturbation in halakhah, including for purposes of procreation using artificial reproductive techniques. It is followed by the matter of the use of sperm banks by single women or infertile couples, for family planning, and for men with cancer, including an Orthodox and Conservative responsum on that topic and Israeli law. The lesson concludes with two Supreme Court cases, one in Israel on who has the right to use sperm in a sperm bank, and one in the United States on whether the child conceived posthumously through use of such sperm has rights to Social Security benefits.
Lesson 5: Genetic Identity. After viewing the trailer of the movie Gattaca to illustrate through science fiction how intrusive techniques of genetic identity may become, this lesson presents how classical Jewish texts define Jewish identity biologically. It then discusses the effect of Jewish genetic diseases on how Jews see themselves. After identifying what makes each of us unique theologically and biologically, the lesson explores ways to protect our identity and confidentiality, while at the same time reaping the benefits of sharing our genetic information, including information that can help us preserve our health and understand ourselves better.
Lesson 6: Gene Testing. The first two texts in this lesson are attempts by the Talmud, long before genes were discovered, to ensure that couples produce healthy and intelligent children. The lesson then describes American and Nazi eugenics efforts and the resulting conflict among Jews about whether to undergo genetic testing today. On the other hand, rabbis and Jewish organizations have made major efforts to encourage gene testing among Jews to avoid having children with any of the Jewish genetic diseases. This, though, leads to the question of what is a malady and what is not, or the distinction between therapy and enhancement.
Lesson 7: Pain Management and Drug Addiction. This lesson first describes the status of physical and psychological pain in halakhah before turning to the contemporary epidemic of drug abuse caused primarily by overuse of opioids and other pain medications.
Lesson 8: Passive Euthanasia: Heroic Efforts vs. Letting Nature Take Its Course. For those who took the core Ethics course, this may be somewhat of a review, albeit with some different sources. The question forming the focus here is to what extent, according to halakhah, must we do everything possible to keep a person’s organs functioning? When may we withhold or withdraw machines, medications, and/or artificial nutrition and hydration and let nature take its course while continuing to provide comfort care to the patient pain? This will set the stage for the more recent issue in Lesson 9 of actively helping a person die.
Lesson 9: Assisted Suicide/Aid-in-Dying. This lesson opens with texts saying that life and death are in God’s hands and therefore, although we may try to heal, we may not assist a suicide, even for someone in pain. This is followed by a contemporary newspaper article describing the increased acceptance of providing aid-in-dying in the laws of several countries and American states. The point is then raised that the very terminology used in talking of this issue may prejudice whether the practice is accepted or not. Arguments for and against aid- in-dying in the secular world are examined, followed by contemporary Jewish responses to the practice across the denominational spectrum.
Lesson 10: The Distribution of Health Care: Who Gets It? Who Pays for It? This lesson explores four possible criteria within Jewish tradition to determine who should get health care interventions when not everyone can, including a Modern Orthodox analysis of how to balance these concerns in contemporary American society. The second part of this lesson concerns who pays for health care when patients cannot. It includes classical sources on paying for releasing people from captivity as a model for how to use limited communal resources to pay for a vital service and then two contemporary Conservative and Reform positions on this issue. Finally, an Epilogue reminds us of the significance of medicine in Jewish tradition and therefore why we should engage in all these moral conundrums that medicine raises in the first place.
Resources within the Jewish Tradition for Moral Guidance
Because we will be looking to Jewish tradition for values that can guide us in addressing these new issues, it will be helpful to summarize some of the major sources Judaism provides to help us discern right from wrong and motivate us to do what is right and avoid what is wrong. Your awareness of all of these sources, though, may suggest to you or your learners additional Jewish materials to the ones chosen for these lessons that may be relevant to your discussions.
Through the ages, a variety of Jewish resources encouraged Jews to make moral choices. Some of the most influential ways to cultivate that morality have been the values articulated in the Torah and later Jewish literature; the moral courage – or the failure to live morally – demonstrated in Jewish stories; and the moral theological foundations, applications, and motivations articulated in Jewish theology, prayer, text study, and law.
Moral Values in the Torah and Later Jewish Literature
The Torah urges us to perform many actions grounded in moral values, such as pursuing formal and substantive justice, saving lives, caring for the needy, demonstrating respect for parents and elders, acting honestly in business and in personal relations, telling the truth while being tactful, and educating both children and adults.
Other ancient reservoirs of Jewish moral precepts include the biblical Mishlei and Pirkei Avot (Ethics of the Fathers), a tractate of the Mishnah (edited c. 200 CE), which outline different ideal types of living morally, together with concrete instructions about how to attain those ideals. Medieval and modern Jewish writers have produced other such works. The section of Rambam’s code of Jewish law, Laws of Character Traits (Hilkhot De’ot; 1180), is one such example, and Moshe Chayyim Luzzato’s Mesillat Yesharim (Paths of the Righteous, 1738) is another. Over the centuries, other Jewish thinkers have had very different concepts of the ideal person and how to achieve that ideal. Hence the variety of works on morality, ethics, spirituality, and social justice from the time of the Tanakh to our own time.
Morals in Stories
Stories are concrete, so they tend to be easier to remember than rules or maxims. So when stories portray real-life situations – including what can happen when moral norms are broken– they can effectively educate and motivate people to act morally.
For example, the core Jewish story encompassing the Exodus from Egypt, the revelation at Mount Sinai, and the trek to the Promised Land proclaims that the Jewish people can and must work together with God to redeem ourselves and others from slavery of all sorts. It also teaches us to live our lives in accordance with the moral norms revealed at Sinai, and to continue to work for the real promised land, the State of Israel, as well as the Promised Land of the Messianic age.
Theology: Aspiring to Be Like God
In Judaism, God is central to morality by defining the good and the right, by enforcing those norms, and by serving as a model for us. Although the Tanakh itself raises questions about God’s morality—at times God appears to act arbitrarily and even cruelly – nonetheless, Jewish texts trust that God is good.We, then, should aspire to be like God: “As God clothes the naked, … so you should clothe the naked; as God visited the sick, … so you should visit the sick; as God comforted those who mourned, … so you should comfort those who mourn; as God buries the dead, …so you should bury the dead.”2
Even more so, according to tradition, God serves to shape moral character by entering into a loving relationship with us. Just as we hopefully treat our beloved life partner by performing whatever the norms of morality require and more, “beyond the letter of the law” (lifnim mishurat hadin), we are asked to do as much for God.
In moral terms, then, we become the kind of people who seek to do both the right and the good, not out of hope for reward, but simply because that is the kind of people we strive to be and the kind of relationships we try to have, reflecting God as our model and our covenantal partner.
The fixed liturgy draws our attention to Jewish values, including knowledge, forgiveness, health, justice, hope, and peace. It can reorient our focus from everyday distractions onto the fundamental, important things in life.
Prayer can help us muster the courage to recognize what we have done wrong and go through the process of teshuvah, returning to the proper path, repairing whatever harm we have done, and taking steps to act justly in the future.
One evident goal of text study is to inform us about what constitutes right and wrong. Beyond this, when done correctly – when study enables us to understand Judaism’s deeper philosophy as embedded in its moral rules – it can guide us ethically in new situations not covered by existing laws.
In real-life encounters, values often clash, making good judgment in resolving conflicts a necessary asset. Studying dialectic texts that themselves demonstrate moral argumentation helps to sharpen our ability to navigate these moral challenges.
Studying within a community of learners to which we want to belong can also give us a communal reason to sacrifice our immediate, perhaps immoral desires to remain a member in good-standing within the community and work together for the attainment of Judaism’s long-term ends. Learning with others reminds us that we are part of a community to whom we have moral obligations and with whom we have moral goals.
Then there are the moral values attached to study itself. They include responsibility, care, self-control, punctuality, exactitude, circumspection, sociability, friendliness, and team spirit.
At the basic level, a minimal moral standard enacted into law enables everyone to know what is expected of each person and what each person can expect of others. This provides a level of security for everyone (contrast Kafka’s depiction of the absolute terror that ensues when you do not know this in The Trial), and it also enables society to secure cooperation for that standard. Sometimes, too, law can impel us toward higher levels of morality by requiring us to uphold higher standards of behavior. And when the law requires us to do good, the hope is that ultimately, once educated, we will do the good for its own sake.
On the communal level, a goal of law is social peace. When disputes arise, law provides a forum for weighing conflicting moral values, adjudicating disputes, and setting moral priorities. A system such as halakhah also delivers ways to make amends, repair moral damage, and reconcile with God and community.
Although Judaism uses all of these sources to guide and motivate Jews morally, it discusses moral issues primarily in legal terms. That is largely so that it can analyze each issue closely and suggest a nuanced approach to the various contexts in which the issue may arise. A legal format also invites argument and discussion, perhaps the hallmark of a Jewish approach to life and one that distinguishes Judaism from most other cultures and religions of the world. This feature of law is important for gaining moral discernment because no person is omniscient and so the best that we can do to gain moral insight and wisdom is to subject hard issues to rigorous analysis and argument. In Jewish tradition, that is how we both respect each other and the tradition handed down to us. In the Talmud’s phrase, we need to engage in “the war of Torah,” milchamta shel torah. As a result, although these lessons include many of the types of source materials listed above, the bulk will be based in halakhah.
This, then, raises the very important and complicated issue of the relationship between law and ethics. After all, if the law says X, does that mean that X is obligatory – or merely permitted? This course will not discuss that critical underlying philosophical issue, but it may arise in the minds of teachers or learners, and so this Introduction will now conclude with a short bibliography not only of modern treatments of Jewish medical ethics generally, but also of readings on the issue of the relationship between halakhah and ethics.
Welcome to the course! May it be the source of many good things for its teachers and learners alike – knowledge, honed skills of analysis, stimulating thought and conversation, friendships formed or deepened through serious discussions of important issues, and, ultimately, a heightened appreciation of the gift that the Jewish heritage is for us.