- Section A: Introduction
- Shefer: the Case of the Tay-Sachs Baby
Ouline of Jewish Law Principles
Withholding Medical Treatment
The Risk Factor
Pain and Suffering
Routine vs. Non-Routine Treatment
The Meaning of Gossess
The Relevance of the Patient's Wishes
Summary Jewish Law
Section A: Introduction
1. The subject of my lecture is one which has been in the headlines in Israel literally within the last few weeks. Little more than a month ago the Tel Aviv District Court gave judgement in the case of two men one a 46 year old man, a father of 4 daughters and with a distinguished service record in the Israeli Air Force who sought rulings from the court that they be allowed to die a natural death and not receive any artificial life-support treatment. I will return to this case at the end of my talk.
2. The subject of my talk is: euthanasia, the approach of the Israeli courts and the application of Jewish Law principles. This question will occupy most of my talk. I will also make a few remarks, towards the end of my talk, about the broader issue of the relevance of Jewish Law to Israeli law generally. This issue is one which has also come to the fore in recent years in judicial and academic debate in Israeli and the approach of the Israeli courts to euthanasia provides an interesting illustration.
3. It is impossible to read cases concerning euthanasia without feeling acute pain both for the patient who stands at death's door sometimes in appalling and prolonged pain and who longs only for death to put an end to his suffering, and also for the doctors and judges man and women who, by their calling, are dedicated to respecting and preserving life into whose hands falls the fateful responsibility of deciding when another person's life should come to an end.
4. At first glance, the very idea of euthanasia seems to be anathema to the Jewish tradition. A word which, to late-twentieth century ears, resonates with the unspeakable crimes of Nazi Germany would seem to have no place in a tradition which, above all, proclaims the sanctity of life. Indeed, the historical resonances of this issue are not lost on Israeli judges who not infrequently allude to the Nazi prograrnme of euthanasia. Yet, euthanasia is not a complete stranger to the Jewish tradition. Indeed, a near literal translation of the word which in Greek means a good or an easy death appears in the Talmud. According to the Talmud, a person sentenced to capital punishment was to be given a concoction to drink before his execution so as to numb his senses to the pain. The Talmud sums up this rule with the phrase Choose for him a pleasant death and the proof-text for this law is none other than a verse in Leviticus: And you shall love your neighbor as yourself.
It seems that even a religion which proclaims the sanctity of life must, at the same time, grapple with the problem of a pleasant death since that too is mandated by our duty to love our neighbor.
5. To the question of whether, and in what measure and in what circumstances, the sanctity of life must give way to the demand for a pleasant death, the Israeli courts have turned their attention on a number of occasions in recent years. The leading case, and one to which I shall devote a significant part of my talk, is the case of Shefer v. the State of Israel, in which the Supreme Court delivered its judgment in November 1993.
This is the only case on the subject which has reached the Supreme Court and the opportunity was taken by Justice Elon, the former Deputy President of the Supreme Court, author of the monumental Ha-Mishpat Ha-Ivri (Jewish Law: History, Sources, Principles) and champion of the cause of Jewish Law and values in the Israeli courts, to deliver a judgment which included a comprehensive treatment of the subject of euthanasia in Jewish and Israeli law.
I will return to this case later. This was not, however, the first time the issue of euthanasia has come before the Israeli courts. The decision in the Shefer case was preceded by a number of District Court decisions and I will briefly review these decisions as well.
Section B: The Statutory Framework6. Before turning to the case law, however, I would like to put the issue into its statutory context. The Israeli Penal Law, 5737-1977 (the Penal Law) contains a number of provisions which relate to the topic at hand, including a specific provision relating to euthanasia.
The offences of murder and manslaughter, including aiding and abetting, are, of course, amongst the most serious in the criminal code. Likewise, assisting or soliciting suicide are amongst the most serious offences in the criminal code, although suicide itself since 1966 is no longer an offence.
The Statutory Provision on Euthanasia7. Euthanasia itself is specifically dealt with in Section 309 of the Penal Law. The relevant part reads as follows:
- In any of the cases listed below, a person will be regarded as having caused the death of another, even though his act or his omission was not the immediate or the only cause of the other's death:
... (4) by his act or omission he hastened the death of a person suffering from an illness or an injury which would have caused his death even without this act or omission.
With regard to passive euthanasia causing death by omission a further element is required,namely, that the person whose omission caused the death was under a legal duty to act and his omission constituted a breach of that duty. Section 299 of the Penal Law states that for an omission to constitute an offence it must involve criminal negligence in the performance of a duty.
The Statutory Duty of Doctors8. The statutory duty of a doctor to treat a patient under his care is found in Section 322 of the Penal Law:
- A person who is responsible for another person who, due to age, sickness ... or any other reason is unable to release himself from that responsibility and is unable to take care of his own needs, whether the responsibility arises by reason of contract or law... is obliged to provide that other person with his needs and to tend to his health, and he will be regarded as having caused any consequences to that other person's life or health which result from not fulfilling this obligation.
9. I would add one point deriving from Israeli case law. A person cannot, by his consent, exempt another from criminal responsibility. The criminal law enforces the rights and interests not of the victim but of society.5 In other words, a patient's consent to or even request for euthanasia cannot exempt a doctor from criminal responsibility if he is, indeed, guilty of an offence.
The Area of Uncertainty10. However, the apparently clear cut position of the Penal Law still gives rise to uncertainty. Two questions, in particular, require consideration.
The first arises out of Section 378 of the Penal Law which provides that:
- a person who strikes, touches, pushes or inflicts force in any manner on the body of another, whether directly or indirectly, without the other's consent or where his consent was obtained by deception is guilty of assault.
This section implies that a doctor who carries out medical treatment on his patient and certainly where he performs an operation without the patient's consent, is guilty of an offence. For that matter, the doctor will be liable for tortious damages as well.
The question is therefore whether, in a situation where a patient refuses life-saving treatment, the doctor must obey the patient's instructions, as suggested by Section 378 of the Penal Law, or whether in such a situation, the doctor's duty to save the life of his patient overrides the patient's's wishes.
The second question which is not resolved by the statutory provisions I quoted above is whether there comes a point at which, because of the patient's terminal condition or because he is in the process of dying or because he cannot bear his pain and suffering any longer or because he is in a persistent vegetative state, the doctor is no longer under a duty to preserve or prolong his life.
Let me put these two questions in the form of a single question: is there any limit whether by reason of the patient's wishes or his pain and suffering or any other reason on a doctor's duty to preserve and prolong the patient's life?
Section C: The District Court Decisions11. These questions, as I mentioned before, have been considered on a number of occasions by the Israeli District Courts over the past several years.
The Eyal Case12. In the case of Eyal v. Wilensky, which was heard in October 1990, the applicant requested a declaratory judgment from the Tel Aviv District Court that he was entitled not to be connected to a respiratory machine should his condition deteriorate. The applicant was a 50-year old man suffering from a terminal motor-neurone disease known as Amyotropic Lateral Sclerosis. According to the doctor's report, the patient was approaching the final stages of the disease, a stage characterized by an inability to swallow, speak, cough or to activate the breathing muscles in the doctor's words, a living hell.
There was no doubt, according to the doctor's report, that in the final stages of the illness the patient would die through oxygen starvation if he was not connected to a respiratory machine. The question for the court's determination was whether, in these circumstances and in view of the patient's wishes, the doctors were legally authorized not to connect the patient.
Judge Goren ruled that, in view of the excessive suffering which the patient would endure in his final moments and in order to respect his wishes, it was proper to grant the declaratory relief requested. Two qualifications were attached to the declaratory judgment. First, he ruled, the proper time for making such a decision was at the onset of the death process and that such a decision should not be taken in advance. Secondly, the decision should only be taken by a senior doctor.
The judge recognized that there were cases where the principle of the sanctity of life obliged a doctor to overrule his patient's wishes and to carry out life-saving treatment even against his wishes. However, in certain circumstances, namely where the patient has entered the death process and he is suffering excessive pain, it is permitted to honour the patient's wishes and to withhold life-prolonging treatment.
The Tzadok Case13. In the case of Tzadok v. Bet Ha'aleh Ltd., which was heard by Judge Talgam in the Tel Aviv District Court in May 1992, the Court was asked for declaratory relief recogrusing the right of a patient suffering from Alzheimer's disease not to have her life artificially prolonged by means of artificial feeding, oxygen supply or by connection to a respiratory machine.
One of the issues considered at length in the course of the judgment was the effectiveness of aliving will which the patient had made a number of months earlier with the onset of the disease.
Another interesting aspect of the judgment was the view of the State Attorney's Office which was presented to the Court and summarized by the Judge. The position of the State Attorney's's Office was that they did not regard the withholding of life-preserving treatment at the request of the patient as constituting an offence of assisting a suicide. However, it could constitute an-offence of causing death by act or omission under Section 309 of the Penal Law. The only situation where the State Attorney's Office would recognize the right of a doctor to honour his patient's wishes and withhold treatment is where the process of dying has actually begun.
The Court ruled, as in the Eyal case, that the patient was entitled not to have her life prolonged by artificial means in the circumstances which she specified in her living will, namely where two doctors had confirmed that her condition was untreatable and that she would die in the absence of artificial means of life support. The Court further specified that continued artificial food and oxygen supply constituted artificial means, although this was not true in respect of routine medical treatment such as injections and so on. The Court further held that the doctors were not obliged to comply with the patient's wishes in all its aspects. In particular, the administering of medical treatment, including liquids and oxygen.
Although the Judge was guided, first and foremost, by a tendency to honour the wishes of the patient, he was alert to the dangers inherent in this approach and recognized that it must be weighed against the overriding value of the sanctity of life and the ethical duty of the doctor to treat his patient. With regard to living wills, the Judge was sensitive to the concern, raised by Professor Robertson in an article on the subject published in December 1991 in the Hastings Center Report, that an emphasis on the freedom and right to autonomy of the patient while still in good health might detract from a respect for the sick patient's will to cling to life while it still had some quality. On the other hand, to ignore the living will in principle, on the basis that the patient may have changed her mind since making it, would be an unjustified infringement on the patient's freedom of choice. On the facts of the case, the Judge concluded that the living will could be relied on as expressing the patient's wishes and was to be honoured, though subject to the qualifications discussed above.
With regard to the general principle of respecting the desire of a patient to allow the natural process of death to follow its course in the terminal phase of the sickness (- the quotation is taken from the World Medical Association Declaration on Euthanasia, adopted by the 39th World Medical Assembly, Madrid, Spain, October 1987) the Judge referred to an article by Dr. Ram Yishay, the former chairman of the Israeli Medical Association and head of the Ethics Committee. Dr. Yishay had written that a legitimization of euthanasia, even in its passive form, could lead to a slippery slope in which decisions came to be influenced not only by the patient's suffering but eventually by considerations of the burden, including the economic burden, of the patient on his surroundings. Notwithstanding these reservations, the Judge concluded that these concerns did not have a basis in the facts of the case before him.
The Tzandi Case14. In the case of Tzandi, Judge Goren of the Tel Aviv District Court, in a decision delivered in April 1993, declared that the applicant's request not to be connected to a dialysis machine was to be respected. The Judge relied on the evidence of the doctors that the patient's condition was terminal and untreatable and that the dialysis treatment caused him pain and suffering: At critical moments such as these in the life of the patient, concluded.Judge Goren, his closeness to his God becomes significant, and Jewish law has coined the phrase a pleasant death, meaning that a dying man should not be made to suffer unnecessarily.
In all of the cases discussed above, a consideration of the values and principles of Jewish law played a significant part in the deliberations of the judges.
Section D: The Supreme Court Decision
Shefer: The Case of the Tay-Sachs BabyI now turn to the case of Shefer v. the State of Israel and to the judgment of Justice Menachem Elon which was delivered in November 1993. The case concerned a young girl, Yael Shefer, who, at the age of one, was diagnosed as suffering from Tay-Sachs disease. After several months, as her condition deteriorated, Yael was hospitalized and when she had reached the age of 2 and a half an application was made to the Tel Aviv District Court, by her mother, for a declaratory judgment that should her condition deteriorate to the point where she required support for her breathing or intravenous drug treatment, she was entitled not to receive these treatments against her will, other than purely pain-killing drugs. According to the doctor's report, Yael was at the time of the application in a permanent vegetative state, not in pain, calm and only cried when she needed feeding or routine medical attention.
The District Court rejected the application on the ground that declaratory relief of the kind sought was only available to an adult patient of full legal capacity and was not within the capacity of a parent or guardian to request on behalf of a minor. (The facts of this case were further complicated by the fact that the application was brought on Yael's behalf by only one of her parents.) Yael's mother appealed to the Supreme Court which rejected the appeal. At the age of three, Yael died.
These events occurred in 1988. The Supreme Court decision was delivered without a reasoned judgment, so as to avoid any delay. It was not until November 1993 that the Supreme Court delivered its written judgment which by then, of course, was theoretical.
It is impossible for me to give a full account, within the scope of this brief lecture, of Justice Elon's judgment in the Shefer case a judgment which extends to over a hundred pages and which comprehensively analyses both the Jewish Law relating to euthanasia and the question of the applicability of these Jewish Law principles to Israeli law. What I would like to do in the time remaining is, first, to present an outline of the principles of Jewish Law relating to euthanasia, as presented by Justice Elon, and then to discuss briefly the applicability of Jewish Law principles to Israeli law, again as presented by Justice Elon. This latter question has been the subject of ongoing debate between Justice Elon and the recently elected President of the Supreme Court, Justice 13arak. But first, the principles of Jewish Law.
Outline of Jewish Law Principles16. The first distinction to be made is between active euthanasia that is, actively intervening on the body of the patient so as to hasten his death and passive euthanasia that is, hastening the patient's death by withholding or omitting to give medical treatment.
Active Euthanasia17. With regard to active euthanasia, Jewish Law is unequivocal.
- A gossess [that is, a person who is in the process of dying we will return to the precise definition of this term later] is considered to be a living person in all respects whoever touches him [and thereby hastens his death] is guilty of shedding blood.
The Shulchan Aruch therefore rules:
- A person who kills a healthy person, or a person who is sick and dying - even if he killed a gossess is liable to the death penalty.''
Passive Euthanasia18. With regard to passive euthanasia, this too is generally prohibited. There is a positive duty, both on the doctor to heal the patient, and on the patient to be healed. We are commanded in the Torah: "And you shall guard you own lives exceedingly". The duty to preserve one's own life overrides all other commandments in the Torah, except for three: idolatry, shedding blood and incest. Where a doctor, for example, recommends life-saving treatment which involves infringing the laws of the Sabbath and the patient, for that reason, refuses, he is dubbed a "pious fool" and "God will demand his blood from his hands". Healing oneself and protecting one's own life is the duty of each individual, not a right.
Likewise, the doctor has a duty to heal his patient. The Torah comments: "Do not stand idly by the blood of your neighbor". Moreover, the Torah commands us to return a lost item to its owner, how much more so are we commanded to deliver a person's body or his life to him:
- "And you shall return it to him" (Deuteronomy 22,2) [includes] to heal his body, when he sees that he is in danger and he is able to save him either physically or with his money or with his wisdom [i.e. medical skill]"
From these two duties emerges a clear halachic principle that where a doctor is able-to save a patient's life, his duty to do so overrides any refusal on the part of the patient to receive the treatment. To this principle, however, there are limitations and qualifications, to which we will return shortly.
"Hasarat Monea"19. However, before considering the circumstances, as delineated in the response literature, under which it is permitted to withhold life-supporting medical treatment, I want to look at an important passage from the Shulchan Aruch which has it origin in the 12th century Sefer Hasidim. In the glosses of the Rema (Rabbi Moshe Isserles) on the Shulchan Aruch, we find the following rule:
- "And similarly it is forbidden to cause a dying person to die quickly; for example, a person who was a "gossess" for a long time and is unable to separate [from the world of the living] it is forbidden to remove the cushion or the pillow from underneath him, on the grounds that people say that there are feathers from certain birds which are causing this, and similarly one should not move him from his place; similarly, it is forbidden to place the keys of the synagogue underneath his head in order that he should depart [from the world of the living].
However, if there is something which is preventing the soul from departing, for example if there is a knocking sound near the house, such as a woodchopper, or if there is salt on his tongue, and these are preventing the departure of the soul it is permitted to remove these from there, since this is not an act at all, but merely removing the preventing agent ("hasarat monea")."
The interpretation of this passage is somewhat unclear and has given rise to differences of opinion amongst the commentators. However, according to one line of interpretation, the significance of this ruling is that the relevant distinction is, apparently, not between an act and an omission. Rather, it is between actions which are considered to cause a hastening of death and those which merely remove an agent, in the dying person's surroundings, which is holding back his soul from departing.
20. This passage has obvious implications for one of the most perplexing issues in this field, namely whether it is permitted to disconnect a dying person from life-support apparatus to which he has already been connected. Justice Elon refers in his judgment to an article by the Chief Rabbi of Tel Aviv, Rabbi Haim David Halevi, in which Rabbi Halevi draws an analogy between the cases cited by the Rema in the Shulchan Aruch and the case of a life-support machine and concludes that where a patient has been connected to life-support respiratory apparatus in order to determine whether there is any chance of recovery, once it becomes clear to the doctors that there is no chance of healing the patient, it is permitted to disconnect him from the apparatus. This would only apply, however, where the patient is incapable of breathing independently and is kept alive only by means of life-support apparatus. In such a situation in fact, according to Rabbi Halevi, the doctors are obliged to disconnect the patient. A similar ruling has been given by Rabbi Waldenberg, one of the leading halachic authorities of this generation on medical issues. This opinion is not, however, unanimous. Rabbi Feinstein proposed an alternative solution, whereby the patient should be attached to an oxygen supply for an hour or two at a time. If it became clear, when the oxygen supply is used up, that the patient is not capable of independent life, he should not be re-connected to the oxygen.
Withholding Medical Treatment21. I now return to the question: in what circumstances is the doctor permitted, or even obliged, to withhold medical treatment from the dying patient.
The Risk Factor22. I will start with a rule laid down by Rabbi Yaakov Emden, one of the leading halachic authorities of the 1 8th century. Rabbi Emden writes, in one of his responsa, that if a patient is suffering from an identifiable condition which the doctors know is curable by tried and tested medical treatment, the patient is compelled to undergo the treatment and the doctors must pay no attention to his pleas that he would rather die than undergo the pain of the treatment.
This ruling introduces the element of risk or uncertainty as a relevant factor in deciding whether to proceed with medical treatment. Where there is a high probability of success attached to the medical treatment, Rabbi Moshe Feinstein has ruled that the medical treatment must be performed even against the patient's will. Moreover, even where there is a risk that if the treatment is unsuccessful the patient's life will be shortened, it is permissible to take that risk where there is chance that the treatment will result in a full recovery.
Pain and Suffering23. With regard to the treatment of the terminally ill, the element of pain and suffering plays an important role in determining whether or not treatment may be withheld. Both Rabbi Feinstein and Rabbi Shlomo Zalman Auerbach have ruled that a dying patient should not be kept alive by artificial means where the treatment does not cure the illness but merely prolongs the patient's life temporarily and the patient is suffering great pain; all the more so where the medical treatment actually causes pain and suffering. It is interesting to note that one of the grounds on which Justice Elon considered it inappropriate to withhold medical treatment from Yael Shefer was that, according to the doctor's report, she was not in pain, even though she had slipped into a persistent vegetative state.
24. In the case of a terminal patient who is suffering pain, a distinction is drawn between treatment designed to prolong his life albeit temporarily and treatment aimed at relieving pain. According to Rabbi Feinstein, it is proper to administer the latter form of treatment but not the former. (Another question is whether it is permitted to administer pain relieving treatment which may shorten the patient's life. Rabbi Feinstein's responsum refers to drugs which "relieve pain but do not shorten the patient's life even for one moment". On the other hand, in a responsum of Rabbi Yaakov Emden, quoted by Justice Elon, Rabbi Emden rules that it is permitted to undergo an operation to relieve extreme pain even where there is a risk that the patient may die as a result.)
Routine versus Non-Routine Treatment25. Another distinction drawn in the halachic literature is that between routine treatment, which may not be withheld even from the dying patient who is suffering pain, and non-routine treatment, which may be withheld. Amongst the halachic authorities there are differences of opinion as to where to draw the line between routine and non-routine treatment. According to Rabbi Auerbach, food and oxygen, insulin injections, blood transfusions or the provision of antibiotics and other drugs fall under the heading of routine treatment. Rabbi Ovadia Hadava, who served on the Rabbinical Court of Appeals in Israel, on the other hand, has written that it is permitted to withhold insulin injections from a terminally ill patient who is in great pain.
The Meaning of "Gossess"26. Another question of crucial importance concerns the definition of"gossess" (a person in the process of dying). The question of withholding treatment, as we have seen from the Shulchan Aruch, relates to a "gossess" a person in the process of dying. But when is that process regarded as beginning? A strict view is taken by Rabbi Bleich that the process is regarded as beginning when the doctors believe that the patient has at most three days to live. Rabbi Hadava, in the responsum I have just referred to, takes a much broader view. In response to a question as to whether it is permitted to withhold insulin treatment from a terminal patient, he addresses the question of whether the patient is a "gossess". He answers that where the doctors have diagnosed his case as being terminal and the patient is suffering great pain, he should certainly be regarded as a "gossess".
27. There are other issues and distinctions in the Jewish law relating to euthanasia which, for lack of time, I cannot detail in this lecture. One subject in particular which is of great practical importance and which I have not had time to discuss concerns the patient who has already lost consciousness or is not of sound mind or a patient who is a minor. The issue is whether a parent or guardian is entitled to request on the patient's behalf that the doctors withhold life prolonging treatment.
The Relevance of the Patient's Wishes28. One question, however, which I have not yet addressed but which I must, because it is central to my topic, is the question of the role of the patient's choice in the decision whether or not to continue the medical treatment. From the summary I have presented so far it appears as though the patient's wishes play little or no role in this decision-making process. There is, on the one hand, a positive duty on the doctor to treat his patient and, on the other hand, a limit to the duty where the patient is terminally ill, he has reached the last stages of his life and life prolonging treatment will only extend the pain and suffering of his last moments. The patient's wishes do not seem to figure at all. This picture is somewhat misleading and there is no doubt that, even according to Jewish Law, the patient's wishes figure in some way or other in the decision-making process. Justice Elon quotes the opinion of Rabbi Shilo Rafael, a judge on the Jerusalem Rabbinical Court, that a patient cannot be compelled to receive medical treatment against his will, presumably in circumstances other than where the treatment is life- saving. Jewish Law also acknowledges the possibility that the very act of imposing treatment on a patient against his will might increase the risk inherent in the treatment. There is also no doubt that in cases of grave pain and suffering, even under Jewish Law, the doctor's decision to withhold life-prolonging treatment will be at the request of the patient. However, there is no doubt that under Jewish Law, the notion of patient autonomy plays a less significant role than under, for example, the law as it has developed in the US courts.
Summary Jewish Law29. This is an appropriate point at which to summarize the distinctive feature of the Jewish Law approach to the question of euthanasia. According to Justice Elon, there is a fundamental difference between the starting point of Jewish Law relating to euthanasia and the starting point of secular systems, as exemplified by US law, even though very often, in practice, the two systems may tend to converge. Under Jewish law, the starting point is the sanctity of life which is founded in the belief that man is created in the image of God. From that starting point flows the duty to preserve life. The limits of that duty are reached where the patient's life is drawing to its end and the final moments are wrapped in pain and suffering. In those circumstances, there is no duty to aggravate the suffering by artificially extending those dying moments. Under US law, by contrast, the starting point is the patient's individual liberty, as enshrined in the 14th Amendment, and that principle is balanced against what the US courts call "cornpelling state interests".
Section E: Jewish Law and Israeli Law30. I want to turn now, in the closing part of my talk, to a question I mentioned at the outset; namely, the applicability and binding nature of Jewish law relating to euthanasia under Israeli law. The reasoned judgments in the Shefer case were written, as it happens, not long after the coming into force of the Basic Law: The Dignity and Freedom of Man and Justice Elon saw great significance in this law as providing statutory underpinning to the applicability of Jewish Law in the area of our topic.
The Basic Law: The Dignity and Freedom of Man"The Basic Law", as I will refer to it, provides that it is prohibited to "infringe against a person's life, body or dignity" (Section 2) and also that "every person is entitled to be protected in his life, his body and his dignity" (Section 4). What is the "dignity" of man referred to in these sections? According to Justice Elon, the "dignity" of man is the "image of God" which he possesses. However, the Basic Law also provides that "every person is entitled to his personal privacy" (Section 5), a provision intended to protect individual liberty and autonomy. The question arises: what happens when these two values are in conflict; for example, where the value of preserving life conflicts with the value of personal autonomy? Justice Elon's answer is that the principle for resolving the conflict is laid out in Section 8 of the Basic Law which provides that one may not "infringe a person's rights under this Basic Law except under a law which is consistent with the values of the State of Israel ...". Although this section deals with a conflict between another law and the Basic Law, there is no reason, according to Justice Elon, why it should not serve as the basis for resolving conflicts which arise between different values enshrined in the Basic Law itself. The "values of the State of Israel" referred to in this section are the values referred to in Section 1A of the Basic Law; namely "the values of the State of Israel as a Jewish and democratic state".
"A Jewish and Democratic State"These words "Jewish and democratic State" require some explanation particularly when delivering a lecture in a country where a legislative provision of this sort would doubtless be regarded as offending against the 1 st Amendment. For Justice Elon, the "Jewish" character of the State, referred to in this Basic Law, refers to the values embedded in Jewish Law. Moreover, according to Justice Elon, where democratic values and Jewish values are in conflict, it is Jewish values which must take precedence. He writes:
- "Even if there was, in fact, no democratic legal system in the world which prohibited active euthanasia..., since active euthanasia conflicts with the nature of the State of Israel as a Jewish State, as we have explained above, the synthesis between the two concepts "the values of a Jewish and democratic State require us to prefer the conclusion required by the value system of a Jewish State, and to interpret the concept "the values of a democratic state" in their light."
31. Justice Elon's approach to the question of the synthesis of Jewish and democratic values in the State of Israel has potentially far-reaching consequences, beyond the immediate concerns of medical ethics. The laws of Israel which are known as "Basic Laws" have been enacted at various times during the history of the State as a sort of proto-constitution in the expectation that they may, one day, form the basis of some form of bill of rights. The "purpose section" which I quoted earlier and which refers to the purpose of the Basic Law as being to embody "the values of the State of Israel as a Jewish and democratic society" appears in another recently enacted Basic Law the Basic Law the Freedom of Occupation (which was enacted in 1994) and appears also in a number of proposed Basic Laws which deal with other fundamental human rights. It is more than likely that if the State of Israel ever integrates these Basic Laws into a bill of rights, this bill of rights will also state that it is enacted for the purpose of anchoring the Jewish and democratic nature of the State of Israel. If Justice Elon's interpretation of the expression "Jewish values"- as meaning the values embodied in Jewish law- is correct and so is his understanding of the required synthesis of Jewish and democratic values whereby Jewish values must take precedence over democratic values in the event of a conflict the consequences for the future character of the Israeli legal system are significant.
32. However, it is appropriate to note at this point, as I hinted earlier on, that Justice Elon's is not the only interpretation of these provisions. In fact, for over a decade there has been something of a cultural war waged between Justice Elon and the recently appointed President of the Supreme Court, Justice Aharon Barak as to the meaning of the Jewish and democratic character of the Israeli legal system. According to Justice Barak, the meaning of a term such as "the dignity of man" is to be determined according to the outlook of "the enlightened community of Israel". Moreover, according to Justice Barak, "the Jewish heritage" to which the Israeli courts must from time to time refer to seek inspiration does not specifically refer to the values and principles inherent in Jewish Law. It includes not only Maimonides, but also Spinoza and Mendelsohn; Herzl and Ahad-Ha'am; "the heritage of the literature of the Torah and also secular literature". Finally, according to Justice Barak, the synthesis between Jewish and democratic values to which the Basic Laws seek to give expression does not involve simply giving precedence to the values of Jewish Law in the event of a conflict between the two value systems. The process of harmonization is a more complex and balanced one according to Justice Barak. In the final analysis, however, where the two systems cannot be harmonized, it is the views of the "enlightened community" which prevail.
Justice Elon is forthright in his criticism of these views of Justice Barak. He writes: "Who is this [enlightened] community; who merits membership of it and who not; what is the nature and meaning of this "enlightenment". And he calls upon us to remember "the awful actions which one of those nations which called itself "enlightened" perpetrated... in the second World War and the Holocaust.". Later on in his judgment he writes: "The values of a Jewish state, whose roots are planted in the fundamental values of the dignity of man who is created in the image of God, the sanctity of life and the prevention of pain and suffering roots which have withstood trials for generation upon generation and from which the whole world has drawn sustenance these are the proper surety and guarantee for the correct and appropriate synthesis of Jewish and democratic values".
Justice Elon, as you may know, has recently retired as Deputy President of the Supreme Court and Justice Barak has recently been appointed President. It is therefore not hard to guess what direction the Supreme Court is likely to take on this issue, at least for the foreseeable future.
Section F: The Present State of the Law
The Recent District Court Decision33. I mentioned at the beginning of my lecture that only a month ago the issue of euthanasia had come up once again before the Israeli courts and I will conclude my talk and bring you right up to date by discussing briefly the outcome of that decision. The decision, which was given on 11th January of this year concerned two men, one aged 69 and the other aged 46, both in the terminal stages of a disease known as Atnniotrophic Lateral Sclerosis. Both applicants requested declaratory relief from the court. The first requested a declaration of his right for his wishes to be complied with, as set forth in a "living will"; namely, that in the event of him suffering a terminal illness or irreversible loss of consciousness his life should not be extended by any artificial means and that he should not receive any treatment other than for the relief of pain. The second appellant sought a declaration from the court that his life not be prolonged by any artificial means whatsoever, including artificial respiration and intravenous provision of food and liquids. The appellant was prepared to receive only pain killing medication.
The judge, Judge Talgam of the Tel Aviv District Court, granted both applicants their request "not to connect them to any apparatus or means of continuous respiratory or nourishment support, and if they have been connected, to disconnect them once it becomes clear that the patient is enable to remain alive without continuous support". According to Judge Talgam, the patient was entitled to refuse such life sustaining treatment when he slips into a persistent vegetative state. Moreover, the life-sustaining treatment which the judge confirmed the patient was entitled to refuse included artificial respiration and artificial feeding.
It is arguable that Judge Talgam has gone further than Justice Elon would have been prepared to go in respecting the right of free- choice of the patient to refuse treatment. What is also noticeable about the judgment is that the grounds of the decision are rooted as much in American conceptions as in Jewish principles. Judge Talgam does not unlike Justice Elon - see the sanctity of life as infringed in a situation where a patient, of sound mind, rationally declares that he wishes nature to take its natural course and that he does not wish his life to be artificially extended. His discussion, moreover, is given over to weighing up the patient's right of autonomy against relevant state interests of protecting third paTties, protecting the medical profession and the interest in preserving life considerations familiar from US Court decisions such as Quinlan and Cruzan as much as with principles of Jewish Law. Nevertheless, it is also true that the judge gave considerable weight to the values and principles of Jewish law and that in his opinion whether rightly or wrongly his judgment was consistent with those principles.
Section G: Conclusion34. This, to conclude, seems to be the direction the Israeli courts are moving in, on the issue of euthanasia. There is, certainly, a serious respect and consideration for the principles of Jewish but at the same time, and despite the crusading efforts of Justice Elon to make Jewish law the sole or overriding source of value in this area, there is a strong tendency to allow space for the liberal democratic values of individual autonomy and free choice.
There is no doubt in my mind that the attention given by the Israeli courts to the principles of Jewish law in this area has provided and will, hopefully, continue to provide an essential balance to the democratic principle of individual autonomy. Alongside freedom of choice, it is essential for society to possess a solid bedrock of common belief in and commitment to the values of the dignity and sanctity of human life a commitment demonstrated by the medical profession day in and day out. Jewish law has demonstrated, through its voluminous history of response literature spanning the centuries, its capacity to balance competing value claims, showing compassion and sensitivity to human suffering on the one hand, and an uncompromising commitment to the sanctity of life on the other. It has also demonstrated its ability to respond with discrimination and flexibility to the rapidly changing face of medical knowledge and technology.
Whichever direction the Israeli courts move in, let us hope that they will continue to preserve the values of the Torah which, I believe, may serve as a common ground of inspiration to religious and secular alike in the words of Maimonides:
The laws of the Torah are not a vengeance on the world, but compassion and kindness and peace in the world.