How to take care the proxy

The facts of the case were undeniably tragic. Ms. Cruzan was in an automobile accident some seven-and-a half years ago. Since that time, she has been lying in a Missouri hospital in a “persistent vegetative state,” having lost her upper brain function, legally alive but permanently unconscious. However, Ms. Cruzan is not terminally ill; she could continue to live for many years in her vegetative state so long as she receives adequate nutrition and hydration. Ms. Cruzan’s parents asserted that their daughter would never wish to be maintained in such a state, and they asked the court to compel the hospital to “pull the plug” on Ms. Cruzan’s feeding tubes. By a vote of 5-4, however, the Supreme Court denied the parents’ request, and upheld the State of Missouri’s right to continue providing life-sustaining nutrition and hydration to Ms. Cruzan.[1]

Cruzan may have been the first case of its kind to reach the U.S. Supreme Court, but it is illustrative of the types of agonizing issues that arise so frequently in this era of rapid advances in medical technology. Those advances have enabled doctors to preserve and prolong many lives. At the same time, they have created a painful question that confronts countless individuals and their families: Are there any limits to the resources and efforts that should be devoted to the maintenance of a person whose quality of life is severely diminished, whose chances of recovery are slim or virtually nil, whose continued maintenance is exacting a severe economic and emotional cost? Where, if anywhere, is the line to be drawn?

The question is one that is faced not only by growing numbers of individuals and families, but also by society as a whole as it struggles to develop public policy in an area of extreme moral complexity.

Some in the “pro-life” community advocate an uncompromising public commitment to the preservation of human life under virtually all circumstances, no matter what the costs, no matter what the medical prognosis, no matter what the wishes of the family or even the individual patient. A growing number of others, in contrast, advocate the “right to die with dignity” — a policy that would allow patients and their families to decide, at least at some point, that the patient’s quality of life was so severely diminished as to justify the withholding or termination of medical life-support.

Although most proponents of the “right to die” position would hasten to disavow any support of suicide or of “euthanasia” (mercy killing), those concepts are inevitable outgrowths of the “right to die” philosophy and are already beginning to emerge from the shadows of the “death with dignity” movement. Laws have been proposed in a number of jurisdictions that would authorize physicians to assist patients who wish to commit suicide. One senses that stories like the one recently reported about Dr. Jack Kevorkian, a pro-euthanasia physician who had supplied a woman suffering from Alzheimer’s Disease with a “do-it-yourself” suicide kit, which she promptly used to take her life, will soon fail even to raise eyebrows among most people.

For yet others, dying is more than merely a matter of right; it rises to the level of an obligation. In 1984, for example, Colorado Governor Richard Lamm told a group of attorneys that terminally ill seniors have “a duty to die and get out of the way with all of our machines and artificial hearts and everything else like that and let the other society, our kids, build a reasonable life.” This attitude is reflected in health care rationing plans like the one recently developed in Oregon, which would deny Medicaid patients the right to receive certain types of medical services that are not deemed “cost-effective.” Thus, in determining whether any given life-sustaining measure makes medical sense, the key consideration is rapidly turning into one of dollars and cents.

With these developments taking place all around us, what is to be the attitude of the Torah community?

  • The Primacy of Halachah

Halachah, the law of Torah, encompasses every facet of human life. It also encompasses every facet of human death. There are halachos that teach us how a person’s remains are to be buried; under what circumstances, if any, a decedent’s body may be autopsied or dissected; whether it is permissible, or perhaps even a mitzvah, to donate body organs for purposes of transplantation into needy others.

So too does halachah govern the many issues that may arise in near-death situations: the types of medical circumstances, if any, that may justify the withholding or termination of various forms of medical care; the permissibility, or non-permissibility, of undergoing experimental treatment that could shorten life if it does not cure the disease; the extent, if any, to which an individual’s personal preferences with respect to medical care are relevant halachic considerations in determining the course of his treatment; the special laws that apply when a person reaches the stage of gesisah (in the throes of death), as well as the means by which gesisah is determined; the criteria by which to determine a person’s death.

Obviously, to state the self-evident axiom that halachah provides answers to all of these questions is by no means to state that there is always definitive halachic consensus as to what those answers are. Indeed, with respect to certain especially complex matters, the rabbinic responsa and other halachic literature reveal a considerable disparity among a number of contemporary poskim (halachic decisors). Moreover, the enormous technological and physiological complexity involved in many of these she’eilos(questions of Jewish law), as well as the high stakes, may result in a reluctance on the part of certain rabbanim to render halachic rulings in specific cases.

For the believing Jew, though, the bottom line is that the resolution of such issues must come through the halachic system, not through personal predilection as molded by contemporary culture. There are inevitably bound to be disparities between halachah and the mores of the time; the underlying philosophies are in fundamental conflict. As Rabbi J. David Bleich has written:

Man does not possess absolute title to his life or his body. He is charged with preserving, dignifying and hallowing that life. He is obliged to seek food and sustenance in order to safeguard the life he has been granted; when falling victim to illness or disease he is obliged to seek a cure in order to sustain life. The category of pikuach nefesh (preservation of life) extends to human life of every description and classification including the feeble-minded, the mentally deranged and yes, even a person in a so-called vegetative state. Shabbos laws and the like are suspended on behalf of such persons even though there maybe no chance for them ever to serve either G–d or fellow man. The mitzvah of saving a life is neither enhanced nor diminished by virtue of the quality of the life preserved.”[2]

Thus, “death with dignity,” the rallying cry of the modern day euthanasia movement, clearly does not find its roots in the law or values of Torah. Elderly persons who speak of their desire to die rather than become a financial or emotional “burden on the children” may have the most noble of intentions, but nobility of intention is not the yardstick by which Jews measure conformity with Hashem’s will. Those who champion only the quality of human life as the overriding value in health care decisions disregard the longstanding Jewish emphasis on the sanctity of human life, even in its most diminished qualitative form.

In sum, the complexity of the halachic issues, the diversity of views among rabbinic authorities with respect to certain she’eilos, the relative difficulty of finding rabbanimprepared to offer halachic guidance — none of these considerations detracts from the fundamental fact that for the Jew, the framework of analysis and decision on these issues must be the halachah.

  • Who Will Ask the Questions?
    Who Will Make the Decisions?

In ordinary circumstances, when a person has a she’eilah, he will pose it to the halachic authority whose guidance he personally accepts as binding — the Rav of his shul, hisrebbe, his rosh yeshivah, someone recognized as a halachic decisor for all of Klal Yisrael — whomever. Yet that is obviously impossible with respect to the many medical and post-mortem issues that may arise when the person about whom the she’eilah is being asked is incapable of posing the question himself.

One would hope that the she’eilah under those circumstances would be posed by those who will be making decisions on the individual’s behalf — in most cases, the members of his family — and that it would be posed to the very same halachic authority to whom the individual himself would have turned were he capable of doing so.

But not always can it be so. Some people do not have family members with whom they retain contact or upon whom they can rely to contact their morei hora’ah (halachic decisors) in times of emergency. And, even for those who do, not always will the she’eilos arise under circumstances where those family members will be available to contact the individual’s halachic authority. When, for example, a person is involved in an accident far from home, emergency decisions will be made for him by doctors and nurses who may not even know that he is Jewish, let alone who his relatives are or who his rabbi is. The likelihood is all too great in such situations that medical procedures will be performed, or withheld, in ways that constitute a violation of halachah.

The problem arises even more frequently in the context of post-mortem procedures. Many horror stories have come to light involving autopsies, post-mortem procedures and non-halachic burials of Jewish decedents who have passed away under circumstances where nobody was available to ensure that halachah would be followed after the person’s death.