Autopsies
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)
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