She'elah (Question): May Jews assist others in committing suicide or request that others assist them in their own suicides?

Teshuvah (Answer):

Killing oneself and murdering others have always been technically possible but forbidden in Jewish law. In our time, though, the matter has taken on new dimensions. On the one hand, while people in the past had no choice but to endure the pain of dying, with minimal medication available to ease their suffering, now we have sophisticated ways to diagnose levels of pain and to calibrate pain medication to need. We also have developed hospice care, where the patient is supported physically, psychologically, and socially by a whole team of people, including family and friends. These factors should diminish the number of people who seek to take their lives.

Unlike nonreligious legal systems, Jewish law (halakha) assumes the existence of an omnipotent, omniscient and benevolent Creator whose purposes cannot always be fathomed. Jewish law also assumes a network of relationships between and among the Creator and all human beings. As a result of these assumptions, there is purpose in every instant of life, for the individual and for the community, even though the purpose is not always readily apparent. Two overarching principles that provide great guidance are G-d's commandments that Jews, individually and collectively, live by his commandments and be holy. This article explores how these assumptions and principles, along with other applicable Jewish law concepts, apply to physician-assisted dying.

The first part of the article deals with the tension between Divine and human healing in the Bible and the Talmud. The second part focuses on the halakhic status of medical practice and, in particular, the question of whether or not it constitutes the fulfilment of an independent halakhic obligation (mitzvah) in Jewish law. Section three is concerned with the legality of coercive life-sustaining medical treatment and the role played by patient autonomy in this area of the law. The theological aspect of human healing is referred to in section four; and the fifth section is devoted to a discussion of recent Israeli cases involving coercive medical therapy and end of life issues.

Under Biblical law, the victim of an assault is entitled to claim medical expenses from his or her attacker and this proviso provides the basis for the Talmudic ruling that “permission has been given to the physician to heal.” It is assumed that the Bible would not actively condone conduct which does not accord with true faith and hence, it may be inferred from this law that human healing is a religiously legitimate activity and not an act of rebellion against God.

It was my good fortune to meet Doug Sturm at a conference at Harvard in the late '70s. At that conference, Doug was instrumental in founding the Council on Religion and Law (CORAL). After the Council was formed, Doug promoted the idea of a journal. I can assure you that this was not motivated by his desire to be published, since Doug has probably published more on law and religion than any other person I know.

After an unsuccessful effort to publish the Journal myself, we convinced Hamline Law School to be the home of the Journal and to provide the editorial staff. Doug was the obvious choice to chair the Editorial Board.

So, I have had the pleasure of seeing Doug in Boston at meetings of CORAL, in Minnesota at meetings of The Journal of Law and Religion editorial board, and at various conferences. I have also been to Doug and Margie's home to discover their wonderful hospitality.

I am not one of the favored few who have sat at Doug's feet as a student. I have stood with others around his piano singing old labor union songs. I have had the good fortune of listening to him, talking with him, and having him listen to me. I have also read his works. Early on in our relationship, I asked him to send me everything that he wrote and he has faithfully done so.

Editor's Note: On September 19, 1998 Professor Emeritus at Hebrew University, Ze'ev Falk died during the preparation of this manuscript. His place as a major contemporary scholar in the field of law and religion led the editors to publish here that portion of the manuscript Professor Falk had completed, plus references he intended to explore in later sections of the manuscript.

At present, the question arises, with respect to terminal patients, whether certain life can be considered worthwhile and reconcilable with human dignity. As a result of Kantian philosophy, modern people tend to assume that human beings are able, and should aspire, to make judgments regarding their life and bodies as well as their souls. In this view, a patient should be given full information about his or her situation and about the alternatives. Using this information, he or she should have the capacity to decide by him/herself what course of action is to be taken. In the modern view, even a patient in a coma should be treated according to the expression of his or her will, for example as formulated in a “Living Will.”

Biblical and rabbinical thought seem to have reflected an understanding for suicide. However, suicide belies a key issue unique to Judaism: why, in the course of Jewish suffering and Judaism's struggle to survive, suicide became unacceptable.

In moments such as these, if we be honest, we are brought to awareness more than ordinarily of the thick interdependency of our lives. We cannot be what we are, we cannot do what we do, we cannot accomplish what we accomplish apart from one another. Perhaps more than we can ever fully discern, our lives are but expressions, albeit creative expressions, of a communal matrix that sustains us, inspires us, and constitutes the origin of our dreams and yearnings, our obligations and our rights. We are members of each other. We belong together. That is the source of our joy in life, although that is, as well, the source of the tragedies of life, the dark side of our history that, on all too many occasions, makes us shudder. I do not mean this initial comment, please understand, as sheer sentimentality. It is, instead, both a political affirmation and a religious declaration, and it provides an opening for further reflections on the major theme of my remarks: a vision of justice as solidarity.

It is awe inspiring to be with you in this sacred place (Swift Hall) at this sacred time (Wednesday noon) engaged in sacred ritual (eating and talking). I am pleased to count myself among those who, nearly four decades ago, liberated this room from exclusive use by faculty, enabling all members of the community to gather for a common meal and common reflection thereby creating, at least in intention, a sacred people. Some traditions are worthy of preservation.

I would speak with you this noon about the profession I have pursued since leaving this Hall almost three decades ago: the profession of education. My remarks are occasioned by a Supreme Court decision announced on June 24, 1988, Kadrmas et al. v. Dickinson Public Schools et al. (North Dakota). Under North Dakota law, certain school districts are permitted to charge a fee for transporting pupils to the public school from outlying areas. The Kadrmas family, whose annual income at the time of the trial was at or near the poverty line, protested the fee they were charged, basically on the grounds of the Equal Protection Clause of the Fourteenth Amendment. The majority of the Court rejected the Kadrmas family's claim. Although the argument, set forth by Justice Sandra Day O'Connor, contained many complexities pertaining to a long line of arguments about the Equal Protection Clause, I would focus on one strong and near determinative pronunciation that she makes: that the Supreme Court has never “accepted the proposition that education is a ‘fundamental right,’ like equality of the franchise.” That is, there is no constitutional right to education.

The debate surrounding the so-called “right to die” has commanded increasing public attention over the last decade. Opinion polls in many Western democracies would appear to show increasing support for euthanasia and physician-assisted suicide, and a number of recent legal developments have further advanced the cause. As a result of court decisions since 1984, euthanasia has been legally permissible in the Netherlands; physician-assisted suicide was legalized in the State of Oregon in 1994 as a result of a ballot initiative, and in 1995 a voluntary euthanasia Bill was passed in the Northern Territory, Australia. But, even more recently, the “right to die” campaign has suffered reverses. The implementation of the Oregon legislation has been halted by a Federal court pending a determination of its constitutionality; the Northern Territory legislation was overturned by the Australian federal parliament in 1997, and in July 1997 the United States Supreme Court, reversing the decisions of lower courts, declared that there is no constitutional right to physician-assisted suicide or euthanasia.

“We have it in our power to begin the world over again.” Thomas Paine, pamphleteer of the American Revolution and defender of the French Revolution, captures in this phrase a central insight conveyed in the idea of human rights: we have it in our power to begin the world again. The sentiment is cast in simple declarative form. As such it may seem naive. We are, after all, constrained—are we not—by the inheritance of a world already accomplished, a world whose structures bind us in untold ways? But the intention of Paine's statement is more than aspirational. It affirms a vision of what is possible—and what is desirable—given the deepest character of who we are and what we might become. If we comprehend the full dialectic between self and world, then we have it in our power to begin the world again even as the world is the matrix—the source and the condition—of our power. That's a central insight conveyed in the idea of human rights which has stirred up such controversy, philosophical and political, since it emerged at the beginnings of the modern era.

In his article, Keown articulates what I see as a basically valid reading of the implications of the texts of the Pali Canon on the issues at hand. I particularly like his formulation, ‘to deny death and cling to life is wrong, but equally wrong is to deny life and seek death.’ As the aging Arahat Sariputta says in the vv. 1002-03:

Keown focuses a fair amount of his discussion on the suicide of a few near Arahats. Though I broadly agree with his analysis of these cases, they do pertain to rather rare and exceptional types of people, while for the ordinary person, various central Buddhist values and considerations straightforwardly make it clear that suicide is highly inadvisable. While Buddhism emphasizes that there is much suffering in life, this can, paradoxically, help dissuade a Buddhist from giving in to despair. If suffering of various kinds, gross or subtle, is to be expected in life, then there is less reason for a person to take particular problems so personally—as if the world is conspiring against him or her.

More than any of you can possibly imagine, I am overwhelmed by this occasion. Yet I would not linger on my inner feelings about the honor you have so graciously provided me. I would instead use these precious moments to reflect with you about a question of immense import that presses upon us.

As we ponder the question, which I shall state in a moment, I would have us keep in mind two things, a conviction and a commemoration. The conviction was declared by Richard L. Rubenstein in his disturbing book, The Age of Triage, a study of genocide from the 16th century to the present. He affirms “that no theological enterprise, that is, no consideration of the ultimate values that move men and women, can be adequate to its task if it ignores critical political and social theory.”

Keown is clear that the Buddhist tradition is remarkably diverse and that his paper presents only one Buddhist perspective, one based on his interpretation of relevant passages from the Pali canon. However, there is a real danger that those readers who are perhaps not broadly read in Buddhism could be misled to think that the position presented in Keown's paper is the Buddhist view rather than a Buddhist view. In fact, he sometimes seems to slide rather far in that direction himself. He states on page two that “an accurate understanding of basic Buddhist values does generate an authentic Buddhist ethic about end-of-life decisions; [and] … suicide, assisted suicide and euthanasia are all contrary to Buddhist ethics.” This claim tends to imply that there is only one normative Buddhist view on these issues. Starting with his premise that “Buddhisms” rather than Buddhism is the more accurate way to speak, it is more likely that there are plural systems of Buddhist ethics rather than a single one, and thus there could be variable authentic Buddhist views on end-of-life issues.

One of the ironies in perceiving schizophrenics as violent is that they are the recipients of more violence than practically any of the rest of us. To lock someone up in a mental hospital, to pass electricity through their cranium until they are stupefied, to give them drugs that cure symptoms the way alcohol cures sobriety, to give them a label that will forever prejudice nearly everyone against them—these are the most common versions of our violence against those we call schizophrenic. In spite of the elaborate science and rhetoric about how all this is to help them to recover, nothing is so obvious in how we treat them as our fear, contempt, and most of all, our resulting neglect of them, and their continuing vulnerability.

This is not to deny that those we call “schizophrenic” are confused. Indeed, they are engaging a spiritual struggle that overwhelms them, and may well have done so for many years. It is an underlying suspicion of this chapter that their spiritual struggle is one of the central reasons we are so violent toward them.

In Vietnam-Perkasie: A Combat Marine Memoir, W. D. Ehrhart suggests the spiritual meaning of his Vietnam tour—the growing gulf between the ideals with which he had enlisted, and his actual combat experience—using the metaphor of a world exploding into pieces. He begins his Vietnam story with an incident that occurred virtually at the end of his tour, when he was nearly killed by a rocket grenade in Hue: “[S]uddenly the world was in pieces. I never heard the explosion. Only the impact registered.” By repeating these same words near the end of his memoir, Ehrhart frames his entire story within this metaphor of a world blown apart, with an impact that registers over the remainder of his life.

While the language with which he tells this story is quite straightforward and even prosaic, while his own lexicon does not include terms like “spiritual,” Ehrhart’s work is a chronicle of contemporary spiritual struggle. In our radically non-religious culture, fundamental spiritual questions and insights are often disguised in “secular” garb, and discovered—particularly by young people—only when worldly conventional wisdom is brought into question.