YD 345.1997c Elliot N. Dorff (Vote held on Nov 16, 2020)
RA Committee on Jewish Law and Standards
Assisted Suicide/Aid in Dying Reconsidered:
“God’s Compassion Embraces All God’s Creations” (Psalms 145:9)
A. Why Reconsidered?
On March 11, 1997, the Committee on Jewish Law and Standards approved a rabbinic ruling that I wrote forbidding assisted suicide by a vote of 21 in favor, two opposed, and one abstaining.1 Since then, however, eight American states and the District of Columbia have enacted laws that permit aid in dying, and Montana’s Supreme Court has ruled that nothing in its state’s statutes prohibits physicians from providing medical aid in dying (I will explain the differing terminology shortly). . .
These jurisdictions include areas with significant numbers of Jews, and so that alone suggests that we should at least review my responsum from 23 years ago. More importantly, the laws adopted by these jurisdictions governing aid in dying address at least some of my concerns that led to prohibiting it, and so a reassessment is in order to determine whether it should still be prohibited if the safeguards enacted by these jurisdictions make my objections moot.
In this responsum I will argue that in a limited number of cases that I will describe we should allow aid in dying. In other words, the aim of this responsum is to carve out some narrow exceptions to the general prohibition of seeking or offering aid in dying, for which I argued in 1997. It is definitely not to embrace the euthanasia movement, which, at its most extreme, would allow people to take their lives or assist others to do so for any reason and under any circumstance; this teshuvah will address only those who, according to their doctors, have six months or less to live because of their underlying, terminal disease, and then only those whose pain cannot be controlled.
. . .
C. Terminology: “Assisted Suicide” vs. “Aid (or Assistance) in Dying” vs. “End of Life Option” vs. “Death with Dignity”
What has become clear to me in the intervening years since I wrote my 1997 responsum is that those opposed to enabling a person to cause his or her own death describe it as “assisted suicide,” invoking the negative associations Western, monotheistic religions (Judaism, Christianity, and Islam) and Western secular, philosophical traditions have attached to suicide. (Some Asian traditions, especially Hinduism in India, see self-immolation as the proper and dignified way to end one’s life, and so there it has very positive connotations.) Those who want to discuss it without prejudice against it from the outset describe it instead as “aid in dying” or “assisted dying” in order to avoid such negative connotations. California’s legislation goes further in avoiding negative connotations, for its law on this is named the “End of Life Option Act,” thus emphasizing that what is being permitted by the act is based on the patient’s choice. That title of the California law also makes it clear that the moral burden for engaging in the procedure rests on the patient, who under the law is exercising an option, rather than the physician, who is assisting a suicide. On the other end of the emotional spectrum, “death with dignity” attributes a positive connotation to helping someone die.
. . .
J. P’sak Halakhah
1. Jewish law prohibits murder; active euthanasia (“mercy killing”), whether by a physician or a family member; suicide; and assisting a suicide.
2. As demonstrated, however, by the responsa on end-of-life care by Rabbis Avram Israel Reisner and Elliot N. Dorff, previously approved by the Committee on Jewish Law and Standards, machines and medications may be withheld or withdrawn from patients who do not benefit from them, as indicated by the patient’s own expressed evaluation personally now, through his or her advance directive, or through a proxy appointed in his or her advance directive for health care. According to Rabbi Dorff’s responsum but not Rabbi Reisner’s, artificial nutrition and hydration may also be withheld or withdrawn.
3. Those confronted with a request for aid in dying by being provided drugs that the patient him/herself will administer in those civil jurisdictions that permit this should first determine that:
a. The patient has a terminal, incurable disease, which, despite available treatments, will, in the opinion of at least two independent physicians, bring about the person’s death within six months or shortly thereafter (depending on the statute in the jurisdiction) and that involves pain or suffering that cannot be quelled.
b. Monetary pressure is not the motivation for the request, whether that pressure is internal to the patient him/herself (“I do not want to squander the family’s resources on my futile care”), comes from family members who do not want to spend the family’s money on what they regard as futile medical interventions for a parent or other relative, or is applied by public or private insurance companies that will provide for medical aid-in-dying but not long-term care, which is much more expensive. Especially in the United States, which does not have universal health care, money is often part of the deliberations of a patient, family, doctors, and hospitals in deciding what medical interventions to use and for how long, but even countries with socialized medicine set limits as to what their health care coverage will provide, based in part on how much money the government is willing to spend on health care. To the greatest extent possible, however, money should not be the dominant factor motivating a person to seek aid in dying; uncontrollable pain, despite the availability and use of medical interventions, is the motive that justifies providing aid in dying.
c. If the patient is depressed or suffers from other psychological maladies, appropriate social, psychological, behavioral, and medical interventions to treat these conditions are employed rather than aid in dying.
d. Similarly, adequate pain medication to quell pain, to the extent that that is possible, is in use, and other necessary medical services have been and are being provided to alleviate the patient’s other symptoms or suffering.
e. While still conscious, the patient asks for aid in dying of his or her own free will, as determined in a private conversation between the patient and doctor with nobody other than an interpreter, if necessary, in the room.
f. The patient is mentally competent to ask for aid in dying, as demonstrated according to the requirements specified for mental competence for such decisions in the civil law of the relevant jurisdiction. This includes age restrictions.
4. In cases where all the requirements of (3) are met, patients who nevertheless ask for drugs that they themselves will administer to aid them in dying and are doing so despite taking all steps possible to live and are currently subject to, or are likely soon to be subject to, uncontrollable pain or suffering may be provided with medications that will aid them in dying. This is not “suicide” in the usual understanding of the term because their underlying disease is taking their lives, accompanied by uncontrollable pain. This is the isolated case in which I am arguing that aid in dying should be allowed. These are rare cases, as demonstrated by the experience of jurisdictions with experience in administering aid-in-dying laws, where only a very small percentage of deaths occur as a result of aid in dying (in 2019, 0.15% in California, 2% in Canada, for example). Therefore, although family members, physicians, and rabbis should not suggest aid in dying, let alone encourage it, they should not object to it either if the patient perseveres with the request. They should rather show understanding for such a decision by the person enduring such suffering. In these rare cases, we should recognize that Jewish law bans aid in dying but not rule according to it (הלכה ואין מורין כן) or recognize that Jewish law bans aid in dying but not interfere with it in these cases. (לא מיחו בידם חכמים )
5. A person who chooses aid in dying under the circumstances detailed in (3) above may be buried in a Jewish cemetery without prejudice because they are not committing suicide in the usual sense; in fact, most people in this condition have fought to stay alive for a long time and often with considerable discomfort. It is their underlying disease or condition that is the ultimate, even if not the proximate, cause of their death.
6. This responsum allows patients to request drugs to bring about their death when they suffer from uncontrollable pain and can administer the drugs themselves; it also permits physicians to provide the drugs needed for this purpose. It does not authorize physicians to administer the drugs themselves. Nevertheless, after the fact, if physicians have done so, rabbis and others should stand aside without judgment. Rabbis and others should provide support and comfort for patients and their families facing this condition, no matter how the patient dies.
7. This responsum declares that as we are interpreting Jewish law, physicians and hospitals in civil jurisdictions that allow aid in dying may provide it under the conditions described above in accordance with Jewish law as well. At the same time, they are under no obligation in Jewish law to provide aid in dying, even to patients in uncontrollable pain. Out of compassion for such patients and/or recognition that people have differing moral evaluations of aid dying in such cases, however, those doctors who refuse to provide aid in dying should refer the care of such patients to other physicians who will provide aid in dying, either directly or by transferring the case to another physician who will evaluate the case and make the referral to a third physician to provide the necessary medications to bring about death.
8. All of these provisions apply only in those civil jurisdictions that permit aid in dying.
