The Prohibition to Kill a Goses (Dying person)

  • Rav Chaim Navon
The Israel Koschitzky Virtual Beit Midrash

Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion


 

 

*********************************************************

Mazal tov to Rav Chaim and Yael Navon on the birth of a son. 
May they be zocheh to raise him le-Torah, le-chuppa, u-le-maasim tovim!

*********************************************************

  

the prohibition to kill a Goses (Dying person)

 

Rav Chaim Navon

 

 

            The Mishna teaches that one is forbidden to hasten the death of a dying person:

 

One may not close the eyes of a dead person on Shabbat, nor while the soul is departing on a weekday. One who closes [a dying person's] eyes while his soul is departing is guilty of bloodshed. (Shabbat 151b)

 

            On Shabbat, the prohibition is to move one of the dead person's organs, because a corpse is muktze. During the week, the prohibition is to close the eyes of a dying person, even if he appears to be dead, for perhaps he merely fainted. It follows from this passage that as long as a person is still alive, nothing may be done to hasten his demise.

 

            This is stated even more explicitly in tractate Semachot (Evel Rabbati):

 

A goses (dying person) is treated like a living person for all purposes… One may not tie his jaws, nor plug his orifices, nor place on his navel a metal utensil or any other cold object until he has died… One may not move him, nor lie him on sand or salt until he has died. One may not close the eyes of a dying person. One who touches or moves him is guilty of bloodshed. For R. Meir would say: He is like a dripping candle; as soon as a person touches it, it becomes extinguished. Similarly, anyone who closes the eyes of a dying person is treated as if he had taken his soul. (Semachot 1:1-4)

 

            The Rambam even rules that one who kills a dying person is liable for the death penalty, like any other murderer. We see then that the prohibition to hasten the death of a dying person is not merely a stringency:

 

Whether he killed a healthy person or he killed a sick person close to death, and even if he killed a goses – he is executed. (Hilkhot Rotze'ach 2:7)

 

            From here it follows that Halakha views a goses as a living person for all purposes and that nothing may be done to hasten his death. We appear to be dealing here even with a goses who is clearly dying; even an hour of the dying person's life has value. This principle is also reflected in the law that one is permitted to desecrate Shabbat in order to prolong the life of a goses, even if his death is imminent:

 

Even if they see that he is crushed, so that he cannot live for more than a short time, they remove the debris until [they reach] his nose and can examine him [to see whether he is alive]. (Shulchan Arukh, Orach Chayyim 329:4)

 

Know also that the same law applies to a goses – we desecrate Shabbat for his sake by removing the debris, or if a doctor says that certain drugs will help to prolong his life for a short while. For a crushed person also falls into the category of goses, and he is worse than a goses, for not even the smallest minority [of crushed people survive], but nevertheless we desecrate Shabbat for his sake for another hour of life. The same also applies to a goses. (Be'ur Halakha, ad loc.)

 

            Sometimes a goses would rather die than continue to suffer for the short time allotted to him, but nevertheless one is forbidden to kill him. The Arukh ha-Shulchan explains this law as follows:

 

Even if we see that the dying person is suffering greatly and would prefer to die, we are nevertheless forbidden to do anything to hasten his death. The world and the fullness thereof belong to the Holy One, blessed be He, and this is His will, may He be blessed. (Arukh ha-Shulchan, Yore De'a 339:1).

 

The incident involving King Sha'ul

 

            Already Scripture describes a case of euthanasia:

 

Now it came to pass after the death of Sha'ul, when David was returned from the slaughter of Amalek, and David had remained two days in Tziklag; it came to pass on the third day, that, behold, a man came out of the camp from Sha'ul, with his clothes rent, and earth upon his head: and so it was, when he came to David, that he fell to the earth, and bowed down. And David said to him, From where do you come? And he said to him, Out of the camp of Yisra'el am I escaped. And David said to him, How went the matter? I pray you, tell me. And he answered, That the people are fled from the battle, and many of the people also are fallen and dead; and Sha'ul and Yehonatan his son are dead also. And David said to the young man that told him, How do you know that Sha'ul and Yehonatan his son are dead? And the young man that told him said, As I happened by chance upon mount Gilboa, behold, Sha'ul leaned upon his spear: and, lo, the chariots and horsemen followed hard after him. And when he looked behind him, he saw me, and called to me. And I answered, Here I am. And he said to me, Who are you? And I answered him, I am an Amaleki. He said to me again, Stand, I pray you, beside me, and slay me: for the agony has seized me, and yet I still have life in me. So I stood beside him, and slew him, because I was sure that he could not live after he was fallen: and I took the crown that was upon his head, and the bracelet that was on his arm, and have brought them here to my lord… And David said to the lad that told him, From where are you? And he answered, I am the son of a stranger, an Amaleki. And David said to him, How were you not afraid to stretch out your hand to destroy the Lord's anointed? And David called one of the young men, and said, Go near, and fall upon him. And he smote him that he died. (II Shemuel 1:1-15)

 

            Attention must be paid to the situation: It was Sha'ul who fell on his spear. The Amaleki lad merely hastened his death, when it was clear that he could not live. Jewish exegetes and thinkers have defended Sha'ul's action in various ways.[1] R. Sa'adya Gaon argued that Sha'ul fell upon his spear unintentionally.[2] The author of the midrash, "Chemdat Yamim," claimed that Sha'ul had already been hit by an arrow.[3] R. Shelomo Goren says that Sha'ul fell upon his sword upon the explicit instructions of the prophet Shemu'el.[4] Some of the Tosafists suggest (in their commentary to the Torah) that Sha'ul tried to commit suicide because he was afraid that he would fail the test and commit transgressions. Others explain that that he feared the afflictions that he would be made to suffer.[5] According to this explanation, there is perhaps room to be lenient regarding a goses who commits suicide because he is afraid of suffering. But this is true only according to this explanation. It should also be mentioned that the Tosafists in their commentary to the Torah cite a view, according to which Sha'ul acted improperly.[6] The Acharonim disagree as to whether or not a person who kills himself because of the severe afflictions from which he is suffering is regarded as one who committed intentional suicide.[7]

 

            An important point must be emphasized: the entire discussion relates to the act committed by Sha'ul. Nowhere do we find justification offered for the act of the Amaleki lad who killed Sha'ul. Kind David judged the lad as a murderer. Thus it follows that even if there is room to permit self-inflicted euthanasia, which is doubtful enough in and of itself, there is no room to permit active euthanasia performed by another party, even if the goses himself asks to be put out of his misery.

 

REMOVING SOMETHING THAT HINDERS DEATH 

 

            The Shiltei Gibborim in tractate Mo'ed Katan deals with this issue and proposes that there are various ways through which one is permitted to shorten the life of a goses:

 

From here[8] it appears that we should forbid the practice of some people that when a person is lying on his deathbed and his soul is unable to depart, they remove the pillow from beneath him, saying that the bed contains bird feathers that prevent the soul from leaving. Many times I shouted like a crane to remove this evil practice, but I was unsuccessful. My teachers, however, disagreed with me, and R. Natan of Igra, of blessed memory, wrote that [the practice] is permissible.[9] Several years later I found support for my position in Sefer Chasidim, sec. 723, where it is written: "If a person is dying, but he cannot die until he is placed in a different place, he must not be moved from where he is." The truth is that the words of Sefer Chasidim require study, for earlier he had written that if a person is dying, and someone else near that house is chopping wood, preventing his soul from departing, we remove the woodchopper. This implies the very opposite of what he writes later. We can reconcile this by saying that doing something that prevents a dying person from expiring quickly is certainly forbidden. For example, chopping wood in order to delay the soul [from leaving], or placing salt on the dying person's tongue so that he not die quickly, all this is forbidden, as is implied in his words. In all such cases, one is permitted to remove the cause [of the hindrance]. But to do something to hasten death and the departure of a person's soul is forbidden. One is, therefore, forbidden to move a dying person from where he is and lay him elsewhere so that his soul may depart. And therefore it is also forbidden to place the keys to the synagogue under the dying person's head in order to hasten his death, for this too hastens the departure of his soul. According to this, if there is something there that prevents the soul from departing, one is permitted to remove it, and it is nothing. For he is not placing his finger on the candle, or doing anything. But placing something on the dying person, or moving him from place to place in order to hasten the departure of his soul, is certainly forbidden, for he is placing his finger on the candle. (Shiltei Gibborim, Mo'ed Katan 16b in Alfasi)

 

            We see, then, that the Shiltei Gibborim distinguishes between active hastening of death which is forbidden and removing some hindrance to death which is permitted.[10] Attention should be paid to the fact that, according to him, actively doing something in order to push off the dying person's death is also forbidden.

 

            This is the way the Shulchan Arukh and the Rema rule in light of the aforementioned sources:

 

A goses is treated like a living person for all purposes… One may not tie his jaws, nor rub him with oil, nor wash him, nor plug his orifices, nor remove the pillow from beneath him, nor lay him on sand or burned clay or earth, nor place on his belly a dish or a trowel or a flask of water or a grain of salt. One may not announce about him in the towns, nor hire flute-players or wailers, nor close his eyes until his soul has departed. For anyone who closes [a dying person's eyes] while his soul is departing is guilty of bloodshed…

Rema …So too one is forbidden to hasten a dying person's death. For example, if someone is lying on his deathbed for a long time, and his soul cannot depart, one is forbidden to remove the pillow or cushion from beneath him, saying that the feathers of certain birds cause this. So too one may not move him from where he is. And similarly, one is forbidden to place the keys to the synagogue under his head, so that [his soul] may depart. If, however, there is something that hinders the soul's departure, for example, there is a banging noise near the house, like a woodchopper, or there is salt on his tongue, and these hinder the departure of his soul, it may be removed, for this does not involve any action, but only the removal of a hindrance. (Shulchan Arukh, Orach Chayyim 339:1)[11]

 

            The halakhic authorities of our day had to reformulate these guidelines in light of current medical practices. R. Chayyim David Halevi argues that removing a patient from an artificial respirator falls into the category of removing a hindrance:

 

The law regarding a grain [of salt] that may be removed from the tongue of a dying person is a perfect parallel to an artificial respirator. For the allowance to remove the grain of salt is accepted by all halakhic authorities, with no exception. The reason given is that this is merely removal of a hindrance. And it has also been explained that this grain of salt had apparently been placed in the patient's mouth in order to prolong his life in the hope that a cure would be found for his illness. But now, that we see that he is dying, and the grain of salt prolongs his suffering, it may be removed. Now, an artificial respirator is exactly similar, for when the patient was brought to the hospital in critical condition, they immediately connected him to the respirator, and he was artificially resuscitated in order to try to treat and cure him. But now when the doctors understand that there is no cure for his illness, it is obvious that the patient may be removed from the machine to which he had been connected…

And furthermore, it would appear, in my humble opinion, that even if the doctors wish to continue and keep him alive with the help of the respirator, they are not permitted to do so. For it has already been clarified that one is forbidden to prolong the life of a dying person by artificial means, for example, by placing salt on his tongue or chopping wood, when there are no longer any chances that he will live. Indeed, Halakha speaks of a dying person who is living independently, and therefore his suffering is also great, which is not true in the case under discussion, where [the patient] does not feel any pain or suffering. Nevertheless, it would appear, in my humble opinion, that not only is it permissible to remove him from the respirator, but there is an obligation to do so. For surely the person's soul, which belongs to the Holy One, blessed be He, has already been removed from the person by Him, for as soon as he is removed from the respirator, he will die. On the contrary, through artificial respiration we keep his soul in him and cause it pain, preventing it from leaving and returning to its rest. (R. Chayyim David Halevi, Techumin II, pp. 304-305)

 

            Some authorities disagree with R. Chayyim David Halevi's analysis. Is removing a patient from an artificial respirator merely "removal of a hindrance"? Rav Goren argues that a distinction must be made between removing salt from the dying person's tongue, where the salt does not constitute natural nutrition, but is merely a "hindrance" which from the outset was intended to delay death, and removing oxygen, which is a vital necessity for human life. Thus, he rules that one is forbidden to cut off a dying person's oxygen or terminate an infusion, or the like. If, however, the present supply of oxygen or the like has been depleted, there is no obligation to renew it, provided that it is clear that the patient has no chances of living.[12]

 

            R. Shelomo Zalman Auerbach offers a clearly-defined criterion for distinguishing between shortening life and removing a hindrance to death:

 

The Gaon, R. S.Z. Auerbach, shelita, told me that a distinction must be made between treatments that provide for the natural needs of the patient or are accepted as routine, and treatments that go beyond the routine. Therefore, for example, if a patient is suffering with cancer that has spread throughout his body, and his death is imminent, even if he is suffering terrible pain, it is forbidden to cut off or withhold oxygen or food or any nutritive liquids that he requires. If he suffers from diabetes, it is forbidden to stop giving him insulin in order to hasten his death. It is forbidden to stop giving blood or any other medication, such as antibiotics, that is necessary for his treatment…

On the other hand, there is no obligation to treat such a patient in an active manner, when the treatment itself will cause him great suffering in addition to his [present] afflictions, when the treatment is non-routine, and there is no hope of curing the underlying disease, but only to prolong his life for a short time. This is especially true when the patient does not grant his consent, owing to his great pain and suffering. (Nishmat Avraham, sec. 339, pp. 245-246).[13]

 

            Attention should be paid to the difference between what he says and what R. Goren says. According to R. Goren, it is permissible not to renew the dying person's supply of oxygen; According to R. Auerbach, this is forbidden.

 

PRAYER TO HASTEN DEATH

 

            It should be noted that in any event, even if one is forbidden to actively hasten the death of a dying person, it is nevertheless permissible to pray that he should die and be released from his suffering. Thus writes Rabbenu Nissim:

 

It is sometimes necessary to pray that a sick person should die, for example, where the sick person suffers greatly from his disease, and it is impossible that he will live, as we say in chapter Ha-Nose (Ketubot 104a) that when Rabbi Yehuda Ha-Nasi's maidservant saw that he was going many times to the bathroom, donning tefilin, and experiencing distress,[14] she said: May it be His will that the heavenly forces compel the mundane, that is to say, that Rabbi Yehuda Ha-Nasi should die. (Ran, Nedarim 40a, s.v. ein)

 

            May God fulfill in us the verse, "He will destroy death for ever, and the Lord God will wine away tears from off all faces" (Yeshaya 25:8).

 

FOOTNOTES:

 

[1] See R. Y. Goelman, "Hishtakfut Moto shel Sha'ul be-Sifrut ha-Halakha," Arakhim be-Mivchan ha-Milchama, pp. 233-251.

 

[2] As reported by a member of his generation, R. Mevaser ha-Levi, in his name; cited in Perushei RaSaG la-Torah, Bereishit 9:5, note 3; Goelman, p. 235.

 

[3] Cited in Torah Sheleima, No'ach 9:5, notes to no. 31.

 

[4] In his Torat ha-Shabbat ve-ha-Mo'ed, in the article, "Gevurat Matzada le-Or ha-Halakha, cited by Goelman, p. 249.

 

[5] Orchot Chayyim, beginning of chap. 4; Ralbag, I Shemu'el, 31:4; Abravanel, ad loc.

 

[6] The Gemara brings the incident involving R. Chanina ben Teradyon, who refused to open his mouth to the fire and thus hasten his death, saying: "Better that He who gave [life] take it away, than he should harm himself" (Avoda Zara 18a).

 

[7] Responsa Chatam Sofer, Even ha-Ezer, I, no. 69; ibid. Yore De'a, no. 326; Responsa Sho'el u-Meishiv, mahadura kama, III, no. 217; Responsa Maharsham, VI, no. 49. The Chatam Sofer is stringent, whereas the Sho'el u-Meishiv and the Maharsham are lenient.

 

[8] Tractate Semachot.

 

[9] R. Chayyim David Halevi explains that they permitted this because it involved some unique power, and not a direct physical action (Techumin II, p. 302).

 

[10] R. Goren emphasizes that the allowance applies only to a person who is dying, but not to a critically ill person who is not classified as a goses. Some doctors have complained that the halakhic definition of a goses is insufficiently clear.  

 

[11] The Taz disagrees with the Rema, arguing that removing the salt from the dying person's mouth is forbidden, because the very act of touching his face may cause his immediate death.

 

[12] Torat ha-Refu'a, pp. 54-55. It should also be noted that according to some authorities, if the patient is no longer capable of spontaneous respiration, and he breathes solely by way of an artificial respirator, he is regarded as dead, in which case there is obviously no prohibition to remove him from the respirator.

 

[13] Elsewhere, it is written in his name that the distinction is between treatments that any other patient would receive, and treatments that are specific to his particular illness or to complications from which it is clear that he will die, and these treatments come merely to delay his death (Encyclopedia Hilkhatit Refu'it, s.v. note lamut, p. 403).

 

[14] He was distressed by the fact that he was forced to remove his tefilin and then put them back on over and over again.

 

(Translated by David Strauss)