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Proceedings of the Associations Of ORTHODOX JEWISH SCIENTISTS New York, N. Y. 5726—1966 232../ Contents IMMANUEL JAKOBOVITS Medical Experimentation on Humans in Jewish Law 1 CYRIL DOMB Systematic Methods of Torah Study 9 LEO LEVI On the use of Electrical Equipment on Shabbath and Yom Tov . 31 AZRIEL ROSENFELD On the Concept of "Sabbath Work" 53 HUGO MANDELBAUM Torah, Facts and Conclusions 61 ALVIN RADKOWSKY Judaism and the Technological Dilemma 68 LEE M. SPETNER A New Look at the Theory of Evolution 79 EDWARD H. SIMON On Gene Creation 87 L. CARMEL The Problem of Evil: The Jewish Synthesis 92 G. N. SCHLESINGER Divine Benevolence 101 RABBI A. Y. BLOCH z.l. An Unpublished Responsum on Secular Studies 106 These Proceedings are published by the Association of Orthodox Jewish Scientists at 84 Fifth Avenue, New York, N.Y. 10011. Subscription is by membership only. Opinions expressed in signed articles do not necessarily reflect the views of the Editors or of the Association. © 1966, Association of Orthodox Jewish Scientists MEDICAL EXPERIMENTATION ON HUMANS IN JEWISH LAW IMMANUEL JAKOBOVITS Rabbi Jakobovits, formerly Chief Rabbi of Ireland, is spiritual leader of the Fifth Avenue Synagogue in New York City. The widespread allegations of unethical practices in medical experimenta- tions on humans have recently been substantiated and carefully documented in a report published in the New England Journal of Medicine.1 The article, which was extensively quoted in the daily press, cited twenty-two examples, out of fifty originally submitted, of "unethical or ethically questionable studies" involving hundreds of patients. In the view of the author, "it is evident that in many of the examples presented, the investigators have risked the health or the life of their subjects." In many cases no "informed consent" was obtained either at all or under conditions which would render such consent meaningful. Some of the experiments were performed for purely academic purposes or "for frivolous ends," occasionally on healthy subjects or organs "with nothing to gain and all to lose." All the examples are taken from "leading medical schools, university hospitals, private hos- pitals, governmental military departments and institutes, Veterans Admin- istration hospitals, and industry." Most people involved in these studies were "captive groups"—charity ward patients, civil prisoners, mental retardees, members of the military services, the investigators' own laboratory personnel, and the like. Such practices obviously raise grave ethical and moral problems. At issue here is not only the impropriety of physicians or researchers admin- istering possibly hazardous treatments without the proper consent of the subject. Equally questionable is the right of the subject to submit to such experiments even with his consent. On the other hand, a certain amount of experimentation is patently indispensable for the advance of medicine and in the treatment of innumerable patients. How far, and under what circum- stances, can such experimentation be ethically justified? The author, therefore, scarcely comes to grips with the gravamen of the problem when he suggests that "greater safeguard for the patient than consent is the presence of an informed, able, conscientious, compassionate, respon- sible investigator, for it is recognized that patients can, when imperfectly 1 informed, be induced to agree, unwisely, to many things," or when he recom- mends "the practice of having at least two physicians (the one caring for the patient and the investigator) involved in experimental situations," or even when he proposes the presentation of difficult ethical problems "to a group of the investigator's peers for discussion and counsel." These suggestions are valuable as far as they go. They certainly would help to prevent some current abuses, such as the excessive zeal of young am- bitious physicians seeking promotion by proving themselves as investigators, or the inordinate rewards, functioning as bribes, held out to participating prisoners, not to mention more common pressures, inducements and mis- representations which destroy the whole concept of free consent. But these suggestions are inadequate on two major counts. First, they limit the problem to securing the subject's free and informed consent, whereas in fact the sub- ject may have neither the right nor the competence to grant any consent, even if freely given. Second, they assume that the physician or the investigator or their peers can pass such critical ethical judgments, whereas in fact the assessment of ethical and moral values is completely outside the purview of medical science, being properly within the domain of the moral, not medical, expert. No amount of medical erudition or expertise can by itself provide the ethical criteria necessary for verdicts that may involve life-and-death deci- sions or the sacrifice of one life or limb for the sake of another. Competent medical opinion is essential to supply the factual data on which such decisions are based; but the decisions themselves, since they involve value judgments, require moral specialists or the guidance of independent moral rules. Ability, conscientiousness, compassion and responsibility are no substitute for com- petent and reliable knowledge of what is right or wrong, ethical or unethical, particularly when human life is at stake—possibly both the life of the subject and the lives that might be saved through the experiment. At least this certainly is the Jewish view. It emphatically maintains that moral questions of such gravity cannot be resolved simply by reference to the fickle whims of the individual conscience or of public opinion, but only by having recourse to the absolute standards of the moral law which, in the case of Judaism, has its authentic source in the Divine revelation of the Holy Writ and its duly qualified interpreters. What cannot be stated with the same certainty and precision is the defini- tion of the Jewish attitude to the problem at hand. Since this is a rather new question, there are as yet too few relevant rabbinic rulings published for a firm opinion to be chrystalized and authoritatively accepted. All that can here be attempted is to scan the sources of Jewish law for views and judg- ments bearing on our issue. But it must be stressed that the resultant con- clusions are entirely tentative, and any verdict in a practical case would be subject to endorsement or revision by a competent rabbinical authority duly considering all the facts and circumstances involved. 2 To this writer there appear to be ten basic Jewish principles affecting the issue and ultimately determining the solution. We will list them seriatim, adding to each item the relevant sources and considerations. 1. Human life is sacrosanct, and of supreme and infinite worth. Life is of itself the summum bonum of human existence. The Divine law was ordained only "that man shall live by it."2 Hence any precept, whether religious or ethical, is automatically suspended if it conflicts with the interests of human life,3 the exceptions being only idolatry, murder and immorality (adultery and incest)—the three cardinal crimes against G-d, one's neighbor and oneself—as expressly stipulated in the Bible itself.4 The value of human life is infinite and beyond measure, so that any part of life—even if only an hour or a second—is of precisely the same worth as seventy years of it, just as any fraction of infinity, being indivisible, remains infinite. Accordingly, to kill a decrepit patient approaching death constitutes exactly the same crime of murder as to kill a young, healthy person who may still have many decades to live.5 For the same reason, one life is worth as much as a thousand or a million lives6—infinity is not increased by multiplying it. This explains the unconditional Jewish opposition to deliberate euthanasia as well as to the surrender of one hostage in order to save the others if the whole group is otherwise threatened with death.7 2. Any chance to save life, however remote, must be pursued at all costs. This follows logically from the preceding premises. Laws are in suspense not only when their violation is certain to lead to the preservation of life, but even when such an outcome is beset by any number of doubts and improbabilities.8 By the same token, in desperate cases even experimental and doubtful treatments or medications should be given, so long as they hold out any prospect of success. (But see also #9 below.) 3. The obligation to save a person from any hazard to his life or health devolves on anyone able to do so. Every person is duty bound not only to protect his own life and health,9 but also those of his neighbor.10 Anyone refusing to come to the rescue of a person in danger of losing life, limb or property is guilty of transgressing the biblical law "Thou shalt not stand upon the blood of thy neighbor."11 It is questionable, however, how far one must, or may, be prepared to risk one's own life or health in an effort to save one's fellow; the duty, and possibly the right, to do so may be limited to risking a less likely loss for a more likely gain.12 In any event, when there is no risk involved, the obligation to save one's neighbor from any danger is unconditional. Hence the refusal of a doctor to extend medical aid when required is deemed tantamount to blood- shed, unless a more competent doctor is readily available.13 3 4. Every life is equally valuable and inviolable, including that of criminals, prisoners and defectives. In the title to life and in its value, being infinite, there can be no distinc- tion whatever between one person and another, whether innocent or guilty (except possibly persons under final sentence of death14), whether healthy or crippled, demented and terminally afflicted.
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