“It can be logically inferred that one who feels pain will go to a healing place” says the Gemara offhandedly (Bava Kama 46b)1; in other words the belief that someone who is sick will see a doctor requires no prooftext or evidence. Is the simple and obvious custom, a universally accepted phenomenon nowadays, also an obligation? Where is the obligation to be healed mandated in the Torah? Is someone who isn’t interested in being healed violating a transgression2?
2. The Ethical Dilemma
In the study of ethics, the right of man to be healed and the obligation of the doctor to heal the patient are debated at length, but the obligation of the patient to be healed is not discussed. The inherent value of life is prominent in mankind’s hierarchy of values and would therefore require preservation of life from any dangers that befall it. Countering this is the value of autonomy, which states that man is a unique entity, owner of his own body and able to make decisions relating to it independently. Thus, a man of sound mind may decide whether he is treated and how he should be treated, as long as it does not cause harm to others in the process. The general consensus regarding today’s ethical understanding recognizes the patient’s ability to refuse medical treatment, even if this refusal may cause him damage.
In the past, the patient-doctor relationship largely followed the paternalistic approach, where the physician is considered to know what is best for the patient and should therefore be the decider regarding medical treatment. However, beginning in the second half of the 20th century, the autonomous approach began to gain ground in the medical field. The generally accepted approach today tries to find a balance between these perspectives: placing an emphasis on the patient’s right to autonomy without losing the professional opinion of the doctor and his responsibility towards his patient. The level of balance between these values can fluctuate between societies and therefore the healthcare policies differ from country to country.3
In Israel, the Patient’s Rights Law states that “anyone who requires medical treatment has the right to receive it”4. It seems unnecessary to state that the obligation to receive treatment is not mentioned. Additionally, the law determines that “no medical treatment will be given to a patient unless the patient has given informed consent”5.
3. The Jewish Position: Main Sources
The obligation of man to preserve his health and his body arises from an abundance of places in the works of Chazal, yet despite this it is difficult to find a clear and direct source6. In our paper we will explain the centrally relevant sources – some dealing with man’s obligation to self-preservation and medical intervention, and some dealing with man’s obligation to protect his kin’s life and heal them – afterwards we will offer our conclusion.
3.1 “Be Very Careful About Your Lives”
It is generally accepted that the main source for preservation of life is the pasuk “be very careful about your lives” (Devarim 4:15). However, according to the simple understanding of the pasuk we are not dealing with preservation of the body but preservation of the soul from the prohibition of idol worship. Despite this, the Gemara (Berachot 32b) brings this pasuk, in an aggadic context, as a source for preservation of the body as well.7
3.2 The Obligation of the Patient To Be Healed, Even When Violating a Prohibition
Many sources in the Mishnah, Talmud, and Poskim deal with the obligation of the patient to be healed in cases of pikuach nefesh, even when the matter involves violating a prohibition.8 The patient’s obligation to transgress a prohibition in order to be healed emerges from the basic obligation upon man of conserving his health.9
3.3 The Obligation of Man to Save Others from Danger
The Gemara (Sanhedrin 73a) teaches that the obligation of man to save his friend when he is in danger is anchored to the pasuk “Do not stand idly by your friend’s blood” (Vayikra 19:16) and the pasuk “and you shall return it to him” (Devarim 22:2). The latter pasuk deals with returning a lost object, and is expounded by Chazal to include “a lost body”.10
3.4 Practicing Medicine: Permissible or a Mitzvah?
During the debate surrounding the prayer over bloodletting, the Gemara (Berachot 60a) deals with the question of whether there is an obligation to be healed and to heal others:
Rav Acha says: one who enters to be blood let should say: “May it be the will of Hashem my God that this
practice should be for me a medicine and should heal me, for You are a trustworthy healer and Your healing is truth, for it is not the way of man to heal but they have become accustomed.” Abaye says, people should not say this, for it is taught by the academy of Rebbe Yishmael: “and you shall surely heal him” (Shemot 21:19), from here permission is granted to a doctor to heal.From the words of Rav Acha we can infer the position that the practice of medicine is not an ideal but the way of the world. Abaye disagrees and holds that a physician is permitted to heal. Abaye’s opinion is the concluding remarks of the debate, and halacha is ruled according to him11, yet even according to his opinion, medicine is not defined here as a mitzvah but a permissible activity.12
3.5 Residence in a Place Where There is a Physician
A Baraita in the tractate of Sanhedrin (17b) mentioned that a talmid chacham is obligated to make sure he is living in a settlement with bare minimum necessities; included amongst them is the presence of a doctor and “craftsman”[i.e. bloodletter].13 Granted this source does not teach the obligation to be healed, and there is no violation for one to live in a place where a physician is not present, yet one can infer the significance the sages gave to the practice of medicine.14
3.6 “Love Thy Neighbor as Yourself”
Rabbi Waldenberg writes that the mitzvah of healing one’s friend is learned from “love thy neighbor as yourself”.15 According to him, there is a need to expound this, since from other psukim such as “and you shall return it to him” we learn of the obligation to save someone in cases of pikuach nefesh, yet the obligation “love thy neighbor as yourself” includes helping others even in place of suffering, harm to a non-vital organ, or similar non-life-threatening cases.
4. The Jewish Position: Discussion
From these sources we can see that the man’s obligation to preserve his body and his welfare is an important principle in halacha. We did not in fact find a direct and explicit obligation that instructs man to conserve his body. As a general principle, the fact that there is no direct source for an obligation can be explained in many ways, ranging from the possibility that it is an inherent moral value that needs no source, that the host of indirect sources testify to its existence, or the possibility that there is no obligation at all.16 Regarding the man’s obligation to preserve his body, it seems that the variety of indirect sources teach us that there is an obligation and that it is a fundamental principle that does not need to be explicitly stated.17
- Life is a loan given to man by God. Man’s lofty obligation is to preserve his life and receive medical treatment when necessary.18
- All people are obligated to help someone in distress and save them. A physician is obligated to heal the patient and prolong life.19
- When a patient refuses to get treatment – it is a great mitzvah to convince them otherwise.
- The discussion in the Gemara there is not dealing with medical issues but the question of who the burden of proof is on in cases of monetary disagreements (“Homotzi Mi’Chavero Alav Harayah”).
- The paper deals with the fundamental obligation to be healed and does not deal with the question of whether one may force medical treatment upon someone else. See the position papers: “Involuntary Medical Procedures”; “Placing Sanctions on Anti-Vaxxers” and “Involuntary Drug Administration in High Risk Sexual Offenders”.
- See: The Medical Halachic Encyclopedia, volume 7, entry ‘The Doctrine of General Morality’, pages 890-946, especially pages 932-936; volume 2, entry ‘Informed Consent’, pages 613-717, mainly pages 636-641; volume 3, entry ‘Patient’, pages 460-462; Daniel Sinclair, ‘Patient Autonomy, Judaism, and Democracy in the Patient Nearing Death Act’, 5766-2005, HaMishpat, 21(5776), pages 224-229. On these pages the author summarizes the discussion of patient autonomy in Anglo-American law; further on in the paper he considers the status of autonomy within halacha.
- The Patient’s Rights Law, 5756 – 1996, chapter 3, article 3.
- Ibid., chapter 4, article 13.
- See Migdal Oz, Hilchot Deot, chapter 4. The Rambam determines that man needs to maintain his health and instructs in a detailed fashion how to conduct oneself. The source of this, according to the Migdal Oz, is “statements of our rabbis, of blessed memory, scattered throughout the Talmud… and they are simple details necessary to all and unanimously agreed upon”. For the sources brought here and additional ones see: The Medical Halachic Encyclopedia, volume 3, entry ‘Patient’, pages 420-427; Rabbi Avraham Steinberg, ‘The Relationship of Halacha and Medicine’, Assia Books, 2 (5741), pages 9-15; Nishmat Avraham, Yoreh Deah, introduction to article 336; The Talmudic Encyclopedia, volume 13, entry ‘Patient’, pages 248-249.
- See Chiddushei Aggadot: Maharsha ibid. Regarding the discussion in Tractate Shavuot 36a the Maharsha explains that the sages utilized the prohibitive qualities of this pasuk in a wider context than the simple understanding. See also Rashbash’s Responsa, article 1. The Rashbash understands from this pasuk, based on the two Talmudic discussions mentioned earlier, that it is a source for the obligation of preservation of life. For the rulings of the Achronim see: Pri Megadim, Orach Chayim, article 328:6; Aruch Hashulchan, Yoreh Deah, article 116:1; Rabbi Yisrael Meir HaKohen Kagan of Radon (Chafetz Chaim), Likkutei Amarim, chapter 13; Shevet Halevi Responsa, volume 6, article 111. It seems that the need for poskim to rely on this pasuk further proves the lack of a clear source for the obligation of medical care.
- Mishnah, Yoma 8:5-8; Tractate Yoma 82a onwards, and in many additional contexts in Talmudic discussions and in the debates of poskim.
- The Ramban (Torat Adam, Sha’ar HaMeichush, the Matter of Sakanah [Rabbi Chavel Edition, page 42]) learns the obligation to be healed from the permissibility to violate a prohibition for pikuach nefesh: “since we violate the Sabbath for medicine, learn from this that it is included in the category of pikuach nefesh, and pikuach nefesh is a great mitzvah”.
- The Rambam (Commentary on the Mishnayot, Nedarim 4:4) learns the obligation to heal from the pasuk “and you shall return it to him” and rules like this Mishnah in the Mishneh Torah, Hilchot Nedarim, chapter 6, halacha 8. The Achronim discuss the question of why the Rambam learns from this pasuk and not from “and you shall surely heal” (a similar question asked on the Rambam by the Achronim is asked in the Tosafot HaRosh, Berachot 60a, “מכאן שניתנה”, on the Talmud). The Torah Temimah (Shemot 21:19, article 145) answers that the pasuk “and you shall surely heal” teaches the permissibility to be healed and not the obligation (compare to the Ramban, in Torat Adam, brought later in endnote 12). Rabbi Waldenberg (Tzitz Eliezer Responsa, volume 5, Ramat Rachel, article 21) writes that had there been no heter to heal, we wouldn’t have expanded the definition of “and you should return it to him” to returning of the body as well. See also Nishmat Avraham, Yoreh Deah, introduction to article 336.
- Mishneh Torah, Hilchot Berachot, chapter 10, halacha 21; Shulchan Aruch, Orach Chayim, 230:4.
- See earlier endnote 10. The Ramban (Torat HaAdam, earlier endnote 9) writes that the Baraita uses “permissible” since there were grounds to assume there was a prohibition, but in reality it is a mitzvah and not just a reshut. In the Ramban’s Commentary on the Torah (Vayikra 26:11) one can find the opposite approach regarding medicine from the sources brought here. According to the Ramban there, the ideal man is under total supervision of God and does not need doctors at all “and what is the portion for doctors in the house of those who perform the will of God, after He promised for you and blessed your bread and your water…”. He explains the words of the Gemara giving physicians permission to heal not as permission for the patient to be healed but as a directive: if a patient consults with a doctor he is allowed to heal him, “but if man’s ways are in line with the will of God he will not deal with doctors”. A similar approach can be found in Rashi’s explanation of the actions of King Chizkiyahu, who hides the book of healing, and is praised by the sages for doing so – “For their hearts would not be humbled in their illness but they would be healed instantly” (Pesachim 56a, “וגנז ספר הרפואות”, see also Rashi, Berachot 10b, “שגנז ספר רפואות”). In the Commentary on the Mishnah the Rambam rejects this approach in totality (and writes that he addresses this in his commentary on the Mishnah, despite this being a Baraita, due to its importance), and according to him Chizkiyahu’s book of healing did not deal with natural medicine, which obviously is an obligation, and there is no contradiction with faith and trust in God. According to the Rambam, he who withholds medical treatment from himself due to trust in God is like a starving man who holds back from eating because he believes Hashem will feed him. The Ramban’s statements in his commentary on the Torah stand in direct contradiction to his statements in the Torat Adam. The Poskim address this by saying that the statements of the Ramban in the Torah relate to the absolutely righteous and correspond to a time of prophecy, unlike today. It is worthwhile to note that the Ramban seems to have practiced medicine (see the recently published Rabbi Moshe Ben Nachman: An Intellectual Biography, Oded Yisraeli, Jerusalem 5781, pages 26-28) and therefore it seems that his statements in his commentary on the Torah are an ideal of elevated spiritual consciousness that does not exist in the practical world. Granted there are Achronim that relied on the statements of the Ramban and instructed that one may abstain in certain cases from receiving medical treatment (see for example Avnei Nezer Responsa, Choshen Mishpat, article 193) but the accepted halachic opinion is like the statement of the Ramban in Torat Adam, that there is an obligation to be healed. See: Tzitz Eliezer Responsa, volume 5, Ramat Rachel, article 20; ibid., volume 17, article 2; Yabia Omer Responsa, volume 4, Choshen Mishpat, article 6; Yechave Da’at Responsa, volume 1, article 61; Gesher HaChayim, volume 1, chapter 1, article 2; The Medical Halachic Encyclopedia, volume 3, entry ‘Patient’, page 426, and footnotes 93, 97. See also Rabbi Aharon Lichtenstein, By His Light: Character and Values in the Service of God compiled by Reuven Ziegler, Hebrew Edition, Alon Shvut 5766, pages 153-155. Rabbi Lichtenstein brings the opinion of Rabbi Chaim of Brisk, who claims that the Ramban did not write these words and that they were inserted by a later author. Granted there is no textual or historical basis for this, and Rabbi Lichtenstein does not accept his words, yet the opinion of Rabbi Chaim of Brisk highlights how bizarre this position is.
- The Ramah (Yad Ramah, ibid.) explains “[the word] ‘surely heal’ – in order to [teach to] find a doctor to heal himself if there is a need for it”. Granted Rashi comments that the doctor’s function is to circumcise babies, but even according to his opinion there is a need for a craftsman, i.e. bloodletter, in the city, which is a medical profession; see the Kesef Mishneh as well, Hilchot Sanhedrin, chapter 1, halacha 10.
- The poskim of the Achronim quote as an aggadic source for the obligation of medicine the Midrash Shmuel (parsha 4, article 1) or the Midrash Temurah regarding the account of Rebbe Yishmael and Rabbi Akiva, who prove to a patient that medicine has no violation of intervening in the acts of God by comparing it to working the earth. In general, aggadic midrashim are rarely a halachic source, and certainly not a midrash of later authority than the Talmud. Here we are discussing a considerably later section, added to Midrash Shmuel from the Midrash Temurah, a text seemingly from the Middle Ages (See Midrash Shmuel, Buber edition, page 54, footnote 7). See for example Tzitz Eliezer Responsa, volume 5, Ramat Rachel, article 20:4, quoting the midrash in the name of the Midrash Temurah.
- Tzitz Eliezer Responsa, volume 5, Ramat Rachel, article 21. His statements are based on the Ramban (Torat Adam, earlier endnote 9, page 43): “and it is possible to say thus, that even one who damages someone for medical purpose is exempt, and it is the mitzvah of ‘love thy neighbor as yourself’”.
- We find these principles in many different halachic domains. According to the majority of poskim there is no explicit prohibition for eating human flesh (according to the Ramban and Rashba, in their insight to Ketubot 60a, there is no biblical prohibition to eat human flesh and according to the Rambam there is no prohibition but a violation of a positive commandment for consuming it. The opinion of the Ra’ah in his insights to Ketubot, ibid., that there is a biblical prohibition, is the sole dissenting opinion) yet despite this Rabbi Weinberg establishes in Seridei Eish Responsa (volume 3, article 127) that consuming human flesh is “against the will of the Torah”. Rabbi Moshe Shmuel Glasner, in his introduction to his book the Dor Revii, writes that it is obvious that eating meat of a treifa is preferential to eating human flesh. See regarding this elsewhere in the writings of Rabbi Yehuda Amital, and Daniel Sinclair as well ‘Morality and Natural Law in Jewish Law: Consuming Human Flesh as an Example’, Parshat HaShavua, edition 281 (Parshat Shemini 5767). In a similar fashion, there is no explicit prohibition for damaging a person’s property (see Rabbi Yoel Bin-Nun and Rabbi Shaul Bruchi, Verses: A Multi-faceted Analysis of the Torah – Parshat Mishpatim, Rishon Letzion 5778, page 150-153); There is no explicit obligation to marry (see Rabbi Yuval Cherlow, In His Image: The Man Created in Image, Jerusalem 5769, pages 173-175). Rabbi Michael Abraham (‘Mitzvah, Logical Inference, and the Will of God’, Tzohar, 30 (5767), pages 15-25) discusses the lack of explicit command of other values, such as settling the land of Israel, Talmud Torah, and Teshuva, which were the Torah expresses as God’s will in a different fashion. Rav Kook (Igrot HaRayah, volume 1, letter 89, page 97) remarks why there are moral principles that are not written as obligations in the Torah – “one cannot estimate the great loss mankind would have suffered if these lofty virtues were determined in obligatory terms”. Regarding the methodology of Rav Kook, there and in additional sources, see Rabbi Yehuda Amital, The Meaning of Rav [Kook]’s Torah for Our Generation: Moral Principles of his Nationalistic Perspective, Alon Shvut 5746; see also The Earth was Given to Man, Alon Shvut 5765, pages 25-40.
- So it seems from the words of the Migdal Oz, previously endnote 6, and so writes Rabbi Eliyahu Bakshi-Doron (Binyan Av Responsa, volume 1, article 52): “and it seems that specifically due to the tremendous importance of physical health and self-preservation was this not stated as a unique mitzvah, as they are the foundation of all mitzvot and the service of God in its entirety”.
- Mishneh Torah, Hilchot Nedarim, Chapter 6, halacha 5; ibid., Hilchot Deot, chapter 4, halacha 1 and throughout the chapter; See as well the sources in the Medical Halachic Encyclopedia, volume 3, entry ‘Patient’, page 422, footnote 77.
- Shulchan Aruch, Yoreh Deah, 336, 1.