A Jewish Perspective on AIDS
by Rabbi Yitzchok Breitowitz
The growth of the HIV virus responsible for the dreaded and
invariably fatal illness of AIDS is one of the most serious
public health crises of the 20th Century. Originally limited
to homosexuals and intravenous drug users, the virus has now
spread to the heterosexual population as well. The proliferation
of AIDS raises a host of legal and ethical questions and, as
is true for all the pressing issues of the day, Judaism offers
valuable insights and perspectives.
At the outset, one possible misconception must be dispelled.
The argument is sometimes made that since AIDS is spread by
conduct that both Judaism and Christianity regard as immoral,
society should not be overly concerned. Let the sinners suffer
the consequences of their sin. This is an utterly fallacious
argument for two reasons. First, as noted, increasing numbers
of people do indeed contract AIDS without engaging in homosexual
activity or drug use. Many have contracted the disease from
blood transfusion (particularly in the early 1980's when blood
screening was less developed); babies have contracted the virus
in utero from their mother's placenta; at least some health care
professionals have been infected from AIDS - carrying patients;
and even some patients from health care workers (the tragic
Kimberly Bergalis incident). Needless to say, the innocent
unknowing sexual partners of persons who contracted AIDS are
at risk as well. The belief that AIDS only strikes "sinners"
is simply false.
Second, the "sinner" argument is premised on a fundamental
misconception. Even if every single case of AIDS were the product
of sinful misconduct - which is decidedly not the case - this would
in no way minimize our duty to alleviate illness, pain, and suffering.
Any case of sickness, whether AIDS, cancer, or heart disease, may or
may not be a Divine punishment but that is G-d's business, not ours.
The Torah requires that we not stand by idly while others suffer and
this obligation extends to those who follow the Torah as well as
those who do not. The Talmud is Tractate Berachot recounts that
Rabbi Meir was once being persecuted by evil men and as a result
prayed for their demise. His learned wife, Bruriah, rebuked him,
citing the verse in Psalms where King David declares, "Let sin perish from the earth" - sin, not sinners. Rather
than hope that sinners will die, one should pray that they will
repent and see the light. This is exactly the attitude we must
take in aggressively combatting this fatal disease.
Coming to specific issues, one of the most controversial aspects
in this area concerns proposals for mandatory AIDS testing for high
risk groups and disclosure of the results of that testing to past
and present sexual partners. On one level, AIDS patients have an
understandable desire to keep their status confidential. Disclosure
could result in serious discrimination, loss of employment,
termination of insurance (although illegal), eviction from housing,
and severe social ostracism. At the same time, however, if the
HIV-positive patient refuses to make disclosure on his/her own,
innocent persons are put at great risk. Consider the HIV-positive
patient who informs his physician, "I'm going to die anyway so I
want to have a good time as long as I can. I refuse to abstain
from sex and I prohibit your disclosing my status to anyone." Or
what if the patient is more subtle and doesn't openly declare that
he will attempt to keep his status secret but the physician suspects
that this is the case?
Halacha normally accords great respect to confidentiality.
Indeed, even outside of the particular context of the doctor-patient
relationship, it is prohibited under Torah law to ever disclose
derogatory or embarrassing information about one person to another
even if that information is true unless very specific conditions
are met. (This is called loshon hora - "evil speech" and
puts severe constraints on even "harmless" social gossip.)
Nevertheless, the prohibitions of loshon hora are not
absolute. Disclosure of negative information is permitted, and
even halachically required, if necessary to prevent physical,
financial, or emotional harm to a third person. For example, if
you plan to enter a business partnership with someone who I know
is a convicted embezzler. I may and must inform you of that fact
notwithstanding the law of loshon hora. If a woman is
about to marry a man who has a history of psychiatric problems
and abuse, disclosure is mandatory. Halacha says I may
not exaggerate. I may not state as fact that which I have heard
only as rumor. I may not disclose the information to those who
have no pressing need to know it. But confidentiality must yield
when innocent third parties are put at serious risk. A
fortiori, this consideration would apply to AIDS cases where
nondisclosure may result in death, not merely financial loss. Halacha would thus appear to support both compulsory testing
and mandatory disclosure, at least on a "need to know" basis.
The matter becomes more complicated, however, when we consider
long range effects as opposed to immediate short-term benefits.
Many public health experts have argued that any policy which
undermines confidentiality will result in fewer people being
tested. (Even mandatory testing can be skirted. After all, how
would the government be able to identify all homosexuals?).
Consider a person who would be willing to submit to AIDS testing
if the results of the testing were to be kept absolutely
confidential. If such guarantees were forthcoming, such a person
would come forward, and be tested. If the results were positive,
he could receive AZT treatments etc. and may very well
decide on a voluntary basis to disclose his status to past or
present sexual partners or at the very least, practice "safe sex"
with a condom. If, on the other hand, confidentiality is not
absolute, some persons would simply refuse to be tested at all.
As a result, they would be deprived of early treatment
opportunities and would continue to spread the virus unknowingly
until such time as the AIDS symptoms become apparent. Thus,
some medical ethicists argue, confidentiality must be respected even at the expense of a particular person's life because,
in the long run, such a stance will save many more lives in the future.
The dilemma this issue poses is similar to one that reputedly
confronted Winston Churchill during World War II. British
intelligence had broken some German codes that indicated that
the Nazis were going to firebomb the town of Coventry. Were
Coventry to be evacuated, however, the Germans would realize
that the codes were cracked and would have them changed. As
a result, allied forces would have lost an invaluable source
of information, possibly endangering the entire war effort and
placing countless future lives in jeopardy. Should 10,000
specific and identifiable people be allowed to die in order to
prevent the possible loss of thousands of unidentified
future victims? Churchill answered in the affirmative. This
heartwrenching dilemma is at the heart of the confidentiality
debate. Space precludes a full consideration of this problem
but Rabbi J. David Bleich, a leading scholar, concludes that if
it indeed can be established that greater confidentiality will
in the long run promote the saving of lives (and he emphasizes
that this has not been empirically established) halacha would permit the consideration of the long term even at the
expense of the immediate victim.
A number of other halachic issues will be briefly noted:
1. Use of condoms: While Jewish law generally frowns upon
the use of condoms as a contraceptive, it would permit their use
as a means to prevent the spread of a life-threatening illness.
The Torah would not require an AIDS patient to practice lifetime
abstinence. Whether condoms should be openly distributed to
students in schools is a more difficult issue. Obviously, Judaism
believes that sex should take place within the framework of a
loving and committed marriage and frowns on any efforts that
would openly legitimize alternative lifestyles and premarital
affairs. At the same time, if adolescents are going to be
sexually-active, they should be aware of precautionary steps.
The school must walk the tightrope of affirming abstinence and
responsibility as the desired norms but making condoms available
as a far distant second best, an evil that is the lesser of two
evils.
2. Physician Endangerment: Under Jewish law, even a
physician is not obligated to put his life in danger in treating
patients with an infectious disease though it is an act of piety
to do so. Nevertheless, where the risks are relatively minimal
or are no greater than those the physician customarily incurs for
his own benefit (e.g., driving on the highway, piloting a
plane), the physician may not shirk his duty by invoking the
specter of an illusory danger. This is especially so when
reasonable precautions can virtually eliminate the danger.
In any event, even where a physician may morally refuse to treat
high risk patients, a hospital, as a legitimate incentive to
encourage treatment, may deny staff privileges to any health
care provider who refuses to treat admitted patients. (Whether
this would be true for a physician who refused to perform
abortions is another matter.)
3. Mikveh, Tahara, Milah: The HIV virus does not survive
in water so there would be no reason to deny AIDS patients the
use of the ritual bath (Mikveh). Similarly, while members of the
Chevra Kadisha (Burial Society) could conceivably contract HIV
from the body fluids of the corpse that they are washing, if
they are wearing gloves the risks are virtually nil. Unlike
the case in surgery, there are no needles or sharp objects that
will puncture the gloves. The consensus of most authorities is,
therefore, that a tahara (ritual cleansing) should be
performed. A final concern involves circumcision (brit
milah). In the Orthodox rite, after making the incision,
the mohel actually sucks the wound to draw out blood and promote
clotting. Since babies can acquire the virus through their
mothers, this creates risks for mohels. The AIDS virus,
however, cannot survive a solution of 75% alcohol so a quick
swishing of 150 proof rum prior to the sucking will avoid all
problems.
Sources: Jewish Law
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