Autopsies

  • Rav Chaim Navon
The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion


Autopsies

 

Rav Chaim Navon

 

 

            In this lecture we shall discuss the permissibility of performing an autopsy for the sake of medical research or medical training. Our discussion begins with the prohibition to disgrace or disfigure a corpse brought in Bava Batra (154a-154b). Three principles may be derived from that passage: 1) Disgracing or disfiguring a corpse is forbidden. 2) Exhuming a corpse falls into the category of disgrace and is, therefore, forbidden. 3) This prohibition is set aside when the exhumation is required in order to resolve some financial issue involving the deceased.

 

            Another source for the prohibition to disgrace a corpse is found in a passage in tractate Chullin that discusses Chazal's derivation of the halakhic principle that in cases of doubt, we follow the majority (Chullin 11b). This passage as well implies that disgracing a corpse is forbidden, and that the prohibition is set aside - "because of the loss of life." Like all other Torah prohibitions, with the exception of the three most serious transgressions, the prohibition to disgrace a corpse is set aside for piku'ach nefesh – saving a life. The passage also implies that the prohibition to disgrace a corpse is by Torah law, for the Gemara wishes to derive from it the law of majority, which is a Torah law.

 

            Another prohibition that arises in connection with autopsies is the prohibition to derive any benefit from a corpse:

 

Just as one may not derive benefit from a corpse, so one may not derive benefit from an [idolatrous] offering. From where do we learn [that no benefit may be derived from] the corpse itself? This is derived by way of a verbal analogy between two instances of the word "there."  Here it states: "And Miriam died there" (Bamidbar 20:1); and there [regarding a slain body found in a field] it states: "And they shall break the heifer's neck there in the valley" (Devarim 21:4).  Just as there one may not derive any benefit from the heifer, so too here one may not derive any benefit from the corpse. (Avoda Zara 29b)

 

            It should be noted that some authorities have ruled that benefit may be derived from the corpse of a non-Jew, or that the prohibition in the case of a non-Jew is only by rabbinic decree. It should further be noted that some authorities have argued that mere observation of a corpse, as occurs in autopsies, is not included in the category of forbidden benefit.[1]

 

            Another issue that is relevant in our context is the positive precept to bury the deceased and the negative precept to delay burial:

 

Mishna: How do they hang him… And they take him down immediately. And if he hung overnight, they violate a negative precept, for it is stated: "His body shall not remain all night upon the tree, but you shall surely bury him that day; for he that is hanged is accursed of God" (Devarim 21:23)… Moreover, whoever allows his dead to remain overnight [without burial] violates a negative precept.  If one allowed him to remain overnight for his honor, to bring him a coffin or shrouds, he does not violate it.  (Sanhedrin 46a)

           

            Here the question arises whether the obligation of burial and the prohibition to delay burial apply also to the individual organs of the deceased.[2]

 

            The first to discuss the issue of autopsies at length was R. Yechezkel Landau, the Noda Biyehuda:

 

Regarding the query you sent me that included a question sent to you from the Jewish community in London, concerning an incident that occurred there involving a patient suffering from gall stones, whose doctors performed surgery following common medical practice, but the surgery was unsuccessful and he died. The halakhic authorities of the city were asked whether it was permissible to dissect the corpse in that area, in order to obtain a clear view of the source of the disease. [This was all] in order to acquire medical knowledge for the future, should such a case occur again; that they should know to perform the surgery, and thus avoid the danger of unnecessary incisions. Is this forbidden because it involves disfiguring and disgracing the corpse, or is it permitted because it will lead to the saving of lives in the future?…

I wonder. If this is called even uncertain piku'ach nefesh, then why all the discussion? Surely this is governed by the explicit ruling that even uncertain piku'ach nefesh sets aside the stringent laws of Shabbat… However, all this applies when we have before us a case of uncertain danger to life, e.g., a sick patient or a collapsed wall… But in the case under discussion, there is no patient that needs this [now]. The only reason they wish to acquire this knowledge is that perhaps there will be a patient who will need it. We may certainly not set aside a Torah prohibition or even a rabbinic prohibition because of this unlikely concern. For if you consider such a concern uncertain piku'ach nefesh, then all preparations of medications – grinding and cooking medicines, preparing a scalpel for blood-letting – should be permitted on Shabbat, for perhaps a sick person will arrive today or tonight and he will need it. And it is difficult to distinguish between a concern that is near in time and one that is far-off. (Responsa Noda Biyehuda Tinyana, Yore De'a, no. 210)

 

            The Noda Biyehuda argues that one may not violate a prohibition because of the possibility that this will save a life in the future, that is to say, one may not violate a prohibition when there is no one presently before us whose life will be saved through the commission of the transgression.[3] It should be mentioned that there is room to disagree with the Noda Biyehuda's comparison. He argues that if we allow uncertain piku'ach nefesh of this sort, we should always desecrate Shabbat, "for perhaps a sick person will arrive." But there is no similarity between the cases. Preparing medical instruments on Shabbat because of the possibility that a sick person will arrive would indeed be foolish. Regarding medical training, however, there is no uncertainty. There is no question that at some point in the future one of the current medical students will find himself treating a patient with the same illness. Indeed, uncertainty exists as to the degree that the autopsy performed now will enhance his medical skills, but that is a doubt of an entirely different sort. R. Moshe Sofer, the Chatam Sofer, writes in one of his responsa (Yore De'a, no. 336): "According to this, if there were before us a patient with a similar disease, and we would wish to perform an autopsy on the corpse in order to cure the patient, it would almost certainly be permissible."[4] This implies that we assume that performing the autopsy will indeed enhance the doctor's skills and contribute to the saving of life. The only problem is that there is no patient before us. Regarding the professional training of doctors, however, is it really "an unlikely concern," as argued by the Noda Biyehuda? Indeed, the author of Responsa Machane Chayyim, R. Chayyim Sofer (a descendant of the Chatam Sofer), writes that if it were impossible to prepare medications on a weekday, but only on Shabbat, it would perhaps be permissible to prepare them on Shabbat, because of the sick people who may arrive. The same should apply in our case where the only way to learn about the disease is by way of an autopsy.[5]

 

Indeed, the Chazon Ish proposes a different approach, which at first glance appears much more logical:

 

The Pitchei Teshuva (sec. 363, no. 5) writes in the name of the Noda Biyehuda and the Chatam Sofer that if there is a sick person before us, one is permitted to disfigure a corpse for the sake of piku'ach nefesh, but if there is no sick person before us, this is forbidden. The difference is not between there being a sick person before us and there not being a sick person before us, but whether it is common. For at a time that we sound the blasts [even if there is no sick person before us] because of a disease that is spreading, it is like a case where the enemies are laying siege to a border town…

Just as we do not prepare weapons on Shabbat during a time of peace, for were you to do so, you would cancel all the mitzvot. Rather, we do not include in the category of uncertain piku'ach nefesh future possibilities that have no basis in the present. And in fact we are not experts on the future. There are times that things we thought would save lives turn into a stumbling block. Therefore we do not consider things in the distant future. (Chazon Ish, Ohalot 22:32)

 

            The Chazon Ish argues with reason that whenever a disease is common it is as if there is a sick person before us. When, however, the disease is not common, we are not concerned that it will break out in the future. The beginning of the passage implies that we are dealing here with a formal reservation, but the end of the passage clarifies that we are simply incapable of making calculations regarding piku'ach nefesh in the future. Perhaps, in another two years, a new cure will be discovered for a certain disease, making the autopsy superfluous. Still, if we are not dealing with a formal reservation, but a question of probability, there is room to argue that our case should be regarded as one involving uncertain piku'ach nefesh.

 

R. Ya'akov Ettlinger, author of Arukh le-Ner, disagrees with the Noda Biyehuda in the other direction, and is even more stringent than him. According to him, there is no room for leniency regarding autopsies even when there is a sick person right before us, whose life could be saved through the autopsy:

 

I was asked about a sick person with a terrible disease, and the doctors tried to cure him to no avail, for he died of his illness. And there is another sick person who has the same disease, and the doctors wish to perform an autopsy to study the disease, so that they may find a cure for the one who is still alive. Is it permissible to disfigure the corpse or not?

Answer: A question similar to the one under discussion is found in Responsa Noda Biyehuda Tinyana, Yore De'a, no. 210. Only there the case was that there was no sick person present, but the doctors wished to disfigure the corpse and cut it open, in order that they should know how to find a cure should a sick person of this sort come before them… The main thing is what he writes that this is not considered uncertain piku'ach nefesh, because there is no piku'ach nefesh before us, and we are not concerned that perhaps such a case will come before us… According to this, in the question currently under discussion, where there is such a sick person, and there is piku'ach nefesh before us, it should be permissible according to the reasoning of the Gaon, the Noda Biyehuda

In my humble opinion, however, this is not true… For I have already demonstrated elsewhere that Rashi maintains, based on the Gemara in Bava Kama (60), that one is forbidden to save himself with the money of another person, i.e., that one is forbidden to steal money from another person in order save his own life. This is against the position of Tosafot and the Rosh, who understood that the passage is dealing with the obligation to pay, but not that one is forbidden to save himself with someone else's money. Now, according to Rashi, since a person is forbidden to save himself with someone else's money, surely he is forbidden to save himself with that person's disgrace, for a person's honor is more dear to him than his money… How then can we say that based on piku'ach nefesh, a sick person may disgrace and disfigure a corpse, for presumably the deceased does not waive his disgrace[6]… All the more when the disgrace and disfigurement are certain, and saving a life through it is uncertain. Thus, it is preferable to sit back and do nothing. (Responsa Binyan Tziyon, no. 170)[7]

 

            R. Ya'akov Ettlinger's position is very difficult. He argues that since according to some opinions, a person is forbidden to save himself with someone else's money, all the more so should he be forbidden to save himself through the disgrace of another person's body. R. Uziel countered that according to Rashi, a person is only forbidden to save himself with someone else's money when there is no other way to save himself. Clearly, however, when there is no alternative, he is permitted to save himself with another person's money (Responsa Mishpetei Uzi'el, Yore De'a, I, no. 28). The Maharam Shik responded differently. Especially interesting is the philosophical argument put forward at the end of the responsum:

 

It also appears this way according to reason. For surely [the prohibition of] disfiguring a corpse is because of the soul that had been in the body… All the more so, then, when there is a soul… it is preferable to disfigure [the corpse] and waive the honor of the soul that had been in it, because of the honor of the soul that is now in the living body. (Responsa Maharam Shik, Yore De'a, no. 347)

 

            The honor due to a corpse stems from the honor due to the soul that had once been housed within it. Therefore, the honor due to a corpse is set aside in favor of the honor due to the soul in a living body. It should be noted in this context that the posekim also bring ethical arguments in the opposite direction. Thus, for example, writes the Chatam Sofer:

 

Non-Jews think that when the when a soul departs from the body, the body is then void of any trace of spirituality… Therefore, they dissect it, and are unconcerned about its disgrace… Jews, however, believe that "when a man dies in a tent" – even when he dies he is called a man, and not a mere corpse. For a body that had been attached to a soul remains with a trace of holiness, and therefore we must treat it with respect. (Responsa Chatam Sofer, Yore De'a, no. 336)

 

            Some authorities are even more lenient than the Noda Biyehuda and permit an autopsy even if there is no sick person before us. One of the strongest arguments of the lenient school was put forward by R. Yosef Shaul Nathansohn, the Sho'el u-Meishiv, who writes regarding an entirely different matter: "In truth [the prohibition of] disfiguring a corpse only applies when this is done for no purpose, and the intention is to disfigure" (Responsa Sho'el u-Meishiv, mahadura kama, no. 231). The Gemara in Bava Batra 154 permits a buyer to exhume a corpse in order to reinforce his claim to property in the hands of the heirs of the deceased, for when exhumation is performed for such a purpose, it is not considered forbidden disgrace. The heirs themselves may not disfigure the corpse, for we are more stringent in the case of relatives, and we do not permit them to exhume a corpse merely to bolster a monetary claim. R. Uziel put forward a similar argument.[8] He writes that the same applies to the prohibition of delaying burial. Delaying burial is permitted when done to honor the deceased, or for some other valid reason, for in such a case the delay does not involve disgrace. All the more so, argue the lenient authorities, should an autopsy performed for the sake of medical training not be considered forbidden disfigurement of a corpse.[9]

 

            Similarly, they add the lenient position of Responsa Machane Chayyim, that an autopsy performed in order to gain a better understanding of the disease is regarded as an act of piku'ach nefesh, even when there is no sick person before us.[10] R. Uziel writes in a similar vein:

 

Regarding what he wrote that there is no sick person before us, only he may arrive, I say: …Certainly, there are always a good number of people who suffer from the same disease. And if we do not know [of them] at this moment, tomorrow or today they will become known to us. This is not at all like the grinding of medicines, etc,, which can be done at any moment or they could have been prepared yesterday. But in a case like ours, if they do not perform an autopsy on this body, because of the prohibition, they will never perform an autopsy. This knowledge will then always be hidden from us, and this will certainly lead to the death of a number of people. Regarding what he wrote at the end of his words, that if so we should perform an autopsy on all corpses – certainly this is a sufficient argument not to issue a blanket allowance…. But in the case of a known disease, which doctors do not understand, and they wish to learn from this case through an autopsy, and all the more so in a place where Jewish doctors cannot study medicine without performing autopsies… it is certainly entirely permissible to perform an autopsy, with the extra precaution not to act in a disgraceful or light-headed manner. (Responsa Mishpetei Uzi'el, Yore De'a, I, no. 28)

 

            R. Waldenberg, author of Responsa Tzitz Eliezer, rules that autopsies are permitted, but he distinguishes between an autopsy performed for the study of an unusual illness, and an autopsy performed for the sake of routine medical training:

 

Regarding an autopsy for the sake of pathology in a case where the cause of death is unknown, and the matter touches upon punishment, whether or not to convict [the accused], there is room to allow it.

We should allow an autopsy if the deceased died from some illness that we still do not fully understand so that we can cure it…

All that has been stated applies to autopsies performed in cases of unusual illness, the nature of which is still not understood, and immediately following the observation and study everything is restored to the body in the ground for eternal rest. But it is absolutely forbidden to hold onto the bodies of Jews for an extended period of time, and not bring them to burial in order to use them to train doctors in general medical practices. A sale or waiver before the deceased died is of no avail, for we are dealing with the honor of God and the honor of the entire house of Israel. And there is no authority in the world that can waive this. (Responsa Tzitz Eliezer, IV, no. 14)

 

            R. Goren goes even further in the direction of leniency. He argues that when we are dealing with national policy, it is impossible to invoke the considerations of piku'ach nefesh that apply to an individual. Autopsies should be permitted even when performed for the sake of training doctors, for on the national level, there is no doubt that if young doctors do not practice on corpses, living patients will suffer:

 

Regarding the great rule of the laws of piku'ach nefesh, established by the two "golden pipes", i.e., the Noda Biyehuda and the Chatam Sofer, that it is only considered piku'ach nefesh, when there is a sick person before us, and not when it is possible that a problem of piku'ach nefesh will arise in the future. This is the hinge upon which our difficult question revolves. It seems that this rule is only valid in the cases and questions presented to the Noda Biyehuda and the Chatam Sofer, where the problem of the health of the nation in general was not a factor… But in our case, when the state and the nation are responsible for the continuity of medical service in Israel, and for the health of the people living in the country, and we know from the outset that in another few years we will need a certain number of doctors of high caliber, in order to ensure the health of the people, and if we do not maintain medical schools, the country will be left without doctors, and it is clear to us that without autopsies performed in medical schools we will not be able to produce doctors worthy of that name - this is called that the sick person is before us, since the Jewish state is responsible for the health of the population and must plan its services for the long term. (R. Goren, Torat ha-Refu'a, p. 235.[11]

 

R. Yechiel Ya'akov Weinberg, author of the Seridei Esh, expressed a similar opinion (Techumin, XII, pp. 383-384)

 

FOOTNOTES:

 

[1] Chazon Ish, Hilkhot Avelut 208:7; Responsa Machane Chayyim, Yore De'a, II, no. 60.

 

[2] See R. Chayyim David Ha-Levi, Techumin V; R. Yisraeli, Amud ha-Yemini, no. 34, p. 332.

 

[3] Some authorities have noted that in the age of modern communication, the concept of "a sick person before us" has become widely expanded (R. Y. Y. Weinberg, Techumin XII, p. 383).

 

[4] The Chatam Sofer forbids an autopsy even if the person had bequeathed his body during his lifetime. He argues that even in such a case there is a prohibition to disgrace the corpse and a prohibition to derive any benefit from it.

 

[5] Responsa Machane Chayyim, Yore De'a, II, no. 60. He writes: "It is clearly evident from the Noda Biyehuda that he was concerned that they would perform autopsies on all corpses in order to learn from them."

 

[6] He adds that even according to the Tosafot and the Rosh, a person is only permitted to save himself with another person's money, if it is his intention to pay him back later, and so this allowance would not apply in our case.

 

[7] Some have understood from what is stated in this responsum that R. Ettlinger permits an autopsy if the deceased had sold his body during his lifetime. The Maharam Shick (Responsa, no. 347) disagrees, and goes on at length to support the position of the Chatam Sofer, that even in such a case, an autopsy is forbidden.

 

[8] Responsa Mishpatei Uzi'el, Yore De'a I, no. 28.

 

[9] Thus writes, for example, Responsa Tzitz Eli'ezer, IV, no. 14.

 

[10] Tzitz Eliezer, ibid.

 

[11] R. Goren was not very enthusiastic, for a variety of reasons, about relying exclusively on autopsies performed on non-Jews. Some authorities forbid benefit derived from the corpse of a non-Jew; it is reasonable to assume that we will fail to obtain a sufficient number of non-Jewish corpses; the mitzva of "And he shall live in them" implies that there must be a way to study medicine without becoming dependent upon non-Jewish cadavers (Torat ha-Refu'a, p. 234-235).

 

(Translated by David Strauss)