No CrossRef data available.
Article contents
On the Bioethics of Jewish Law: The Case of Karen Quinlan*
Published online by Cambridge University Press: 12 February 2016
Extract
It has been widely remarked, in both the popular press and the scholarly literature, that rapid technological advances in the biomedical sciences may have outpaced society's ability to consider and cope with all their implications. In short, that technology is out of control. A particularly poignant example of the quandaries wrought by modern technology has been the plight of Karen Quinlan and her family. Pronounced by her doctors to be in a “persistent vegetative state”, with permanent loss of all cognitive function, Karen was seemingly sustained only by her connection to a mechanical respirator. Following a lengthy vigil and with the blessing of their church, the Quinlan family requested that the respirator be disconnected. The doctors refused, stating that such an action would be contrary to accepted medical practice. The Quinlans responded with a legal action for declaratory and other relief, the practical effect of which would be the termination of use of the respirator. After failing in the lower court, In the Matter of Karen Quinlan, 137 N.J. Super. 227, 348 A.2d 801 (1975), the Quinlans were successful in the New Jersey Supreme Court, 70 N.J. 10, 355 A.2d 651 (1976). Shortly thereafter, the Quinlans directed that the respirator be removed; much to their surprise (and undoubtedly that of the Court), Karen proved able to breathe unassisted. With antibiotic treatment and intravenous feeding, but without the respirator, Karen has survived since June of 1976 in a New Jersey nursing home. There is no indication that she has regained cognitive function.
While widely perceived as concerning “the right to die with dignity”, the Quinlan situation in fact raises a great many issues central to the interaction of law, morals, and modern technology and provides a convenient focus for discussion of these issues.
- Type
- Articles
- Information
- Copyright
- Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1979
References
1 355 A.2d at 660.
2 See e.g., Commonwealth v. Edelin 359, N.E.2d 4 (Mass. 1976).
3 The most comprehensive English language treatment of this subject is David Bleich, J., “Establishing Criteria of Death” (1973) 13:3Google Scholar Tradition 90 (hereinafter cited as Bleich).
4 In the Matter of Karen Quintan I (Arlington, Va., University Publications of America, 1975) 480 (hereinafter cited as Quinlan I).
5 Ibid., at 483.
6 Ibid., at 276.
7 Rabinowitz, G. and Konigsberg, M. (1971) 32 Hadarom 59.Google Scholar
8 Jakobovits, I., Jewish Medical Ethics (New York, Bloch Publishing Co., 1975) 277 (hereinafter cited as Jakobovits).Google Scholar
9 Ad Hoc Committee of Harvard Medical School to Examine the Definition of Brain Death, “A Definition of Irreversible Coma” (1968) 205 J.A.M.A. 337.CrossRefGoogle Scholar
10 See supra n. 7.
11 Quintan I, supra n. 4, at 485.
12 See supra n. 9.
13 355 A.2d at 656. (Emphasis in original).
14 Bleich, supra n. 3, at 93. Indeed, according to Bleich, there may be an obligation to resuscitate even a patient who is dead, according to Halakhic criteria, if such resuscitation is feasible. Id. at 108.
15 See e.g., Ramsey, Paul, The Patient as Person (New Haven, Yale University Press, 1970)Google Scholar; Veatch, Robert, Death, Dying and the Biological Revolution (New Haven, Yale University Press, 1976) (hereinafter cited as Veatch).Google Scholar
16 Jakobovits, supra n. 8, at 121.
17 Rabbi J. Rabinowitz, Notes to the Soncino edition of Tractate Semachoth.
18 Shulchan Aruch, Even haEzer 121:7, cited in Dagi, , “The Paradox of Euthanasia” (1975) 23 Judaism 157 at 164 (hereinafter cited as Dagi).Google Scholar
19 Dagi, (see preceding note) at 165.
20 Jakobovits, supra n. 8, at 121 n. 18, citing Joshua Falk (c. 1550–1614, Lvov), Perishah, Yoreh Deah 339:5; cf. Yoreh Deah 339:2.
21 Professor S. Leiman, personal communication.
22 Dagi, supra n. 18, at 164, citing a personal communication from Bleich.
23 Jakobovits, supra n. 8, at 121.
24 For a full description of that status and a discussion of the Jewish legal response to one who kills a trefah, see Section V infra.
25 Rosner, F., Modern Medicine and Jewish Law (New York, Yeshiva University Press, 1972) 117–18 (hereinafter cited as Rosner).Google Scholar
26 Tractate Shabbath 151b.
27 Cited in Rosner, supra n. 25, at 118.
28 Book of Judges, laws of mourning 4:5.
29 Cited in Jakobovits, supra n. 8, at 121.
30 Cited in Solomon Freehof, B., Reform Responsa (New York, Ktav, 1973) 120 (hereinafter cited as Freehof, RR).Google Scholar
31 Cited in Rosner, supra n. 25, at 119.
32 Cited in Rosner, supra n. 25, at 119–20.
33 Freehof notes that the Taz (Rabbi David ben Samuel ha-Levi, 1586–1667, Poland) expressed doubt about the permission to wipe the patient's tongue, for that would shake and disturb the patient and would be an overt act. Solomon Freehof, B., Modern Reform Responsa (Cincinnati, Hebrew Union College Press, 1971) 201–202 (hereinafter cited as Freehof, MRR).Google Scholar
34 Rabinowitz, commenting on this verse in the Soncino Talmud, notes that the custom of closing the eyes of a corpse was widespread among ancient Greeks, Romans and Egyptians. At the moment of his death, man was believed to behold the Divine Presence; it was unfitting that after that vision his eyes should look at anything mundane.
35 Rabbi Solomon Eger is said to have quoted another rabbinic authority to the effect that “it is forbidden to hinder the departure of the soul by the use of medicine”. The original context of this statement is not clear, however, and other authorities disagree. See Rosner, supra n. 25, at 120 citing Beth Yaakou no. 59, and Shebuth Yaakov, part 3:13.
36 Tractate Abodah Zarah 18a.
37 Cf. Tractate Sanhedrin 74a.
38 See Daube, D., Collaboration with Tyranny in Rabbinic Law (London, Oxford University Press, 1965), and Tractate Ketuboth 19a.Google Scholar
39 Tractate Shabbath 32a.
40 Rosner, supra n. 25, at 20.
41 Midrash Rabbah to Deuteronomy, Soncino edition, chap. VIII, Nitzabim 147–48.
42 Following Freehof, RR, supra n. 30, at 119. The incident is also illustrative, of course, of the power attributed to the prayers of the rabbis.
43 Siegel, Seymour, “Updating the Criteria of Death” (1976) 30 Conservative Judaism 23Google Scholar, at 29–30; compare Freehof, RR, supra n. 30, at 120. Jakobovits renders the story somewhat differently, supra n. 8, at 124 n. 48: the woman's wish would be granted if she would not absent herself from the synagogue for three days.
44 Ta'anit 23a.
45 Following Freehof, RR, supra n. 30, at 119–20.
46 Following Freehof, RR, supra n. 30, at 120–21.
47 Federbush, Simon, “The Problem of Euthanasia in Jewish Tradition” (1952) 1 Judaism 64.Google Scholar
48 Jakobovits, supra n. 8, at 124.
49 Freehof, RR, supra n. 30, at 118–19.
50 Freehof, RR, supra n. 30, at 119.
51 Tractate Berachoth 10b, and see text supra at n. 41.
52 The Hezekiah story is also instructive with respect to the rabbis' attitude toward informing patients of their prognosis. The great prophet Isaiah is rebuked for telling a man that his situation is hopeless, and in fact the decree is averted through prayer. The traditional literature demonstrates a keen sensitivity to the psychological effect on the patient of what is said and done around him. A dying man cannot be informed of the death of a close relative, lest his mind grow distraught. While the family may be informed, this should not be done in the presence of the ignorant, the young, or of women, “lest they weep and terrify his heart”. Semachoth: 1:3. Some commentators hold that should a patient inquire of his condition, it may be permitted to deceive him. Eliezer Minz, Shaare Deah, cited in Freehof, RR, supra n. 30, at 123–24. When the time comes to call the patient to confession (the viddui prayer), this must be done in such a way as not to terrify him.
53 Veatch, supra n. 14.
54 Bleich, supra n. 3, at 109. Of course, this statement must be qualified by recognition of capital punishment, for which there is explicit Scriptural warrant.
55 Siegel, supra, n. 43, at 35. In this respect, a statement attributed to Joseph Quinlan, Karen's father, is highly instructive. During his ordeal, statements appeared in the press to the effect that Mr. Quinlan wanted to kill his daughter. Mr. Quinlan responded: “There's no attempt being made to really kill her… [S]omewhere there's a loving God, a loving Father, just waiting for her. And there's a special place for her. And I want to get her back in her natural state and leave it up to Him to decide if He's going to take her now or later”. Quoted in Colen, B.D., Karen Ann QuinUn: Dying in the Age of Eternal Life (Plainview, N.Y., Nash Publishing, 1976) 43.Google Scholar
56 Such perceptions will often depend on conditions of time and place. What the determinants of these perceptions are, and how they are modified over time in a given society, are underlying themes of Section V of this essay.
57 A further question not fully explored here is whether an impediment prolonging the dying process should or may be removed if the patient is not suffering. All of the instances discussed in the sources, in both the impediment and prayer contexts, concern persons undergoing considerable suffering, and this fact may be critical to their rationale. In the Quinlan case, although the Court's perception was suggested by its statement that “no externally compelling interest of the State could compel Karen to endure the unendurable”, 355 A.2d at 663, the Court recognized that “the quality of her feeling impulses is unknown”. Id. at 655. Medical testimony left unanswered the question whether Karen, in her comatose state, experienced pain or had the capacity for suffering, physical or otherwise.
58 Hapardes, cited by Siegel, supra n. 43, at 32.
59 Cited by Jakobovits, supra n. 8, at 276.
60 Jakobovits, supra n. 8, at 276 (notes omitted).
61 Rosner, supra n. 25, at 121.
62 26 Fed. Cas. 360 (No. 15383) (C.C.E.D. Pa. 1842).
63 14 Q.B. 273 (1884).
64 See Goldstein, J., Dershowitz, A., and Schwartz, R., Criminal Law: Theory and Practice (New York, Free Press, 1974), 1030–31.Google Scholar
65 Midrash Tehillim to Ps. 7:2.
66 Jastrow, M., Dictionary of the Targumim (New York, Jastrow, 1967).Google Scholar
67 Tractate, Hullin 42a.Google Scholar
68 Tractate, Hullin 43aGoogle Scholar; Maimonides, , Hil. Shechitah 10:9.Google Scholar
69 Freehof, MRR, supra n. 33, at 190–91, citing the commentary of Yom Tov Lipmann Heller (1573–1654, Prague) to Yev. 16:4.
70 Introduction to Tractate Semachoth, Yale Judaica Series, at 9.
71 This paragraph represents the author's personal conclusions drawn from consideration of the sources and from and discussion with Professor S. Leiman, who should not be held responsible for the author's errors of restatement or interpretation. It should be noted that some authorities limit the concept of trejah in its application to humans to persons in extremis as a result of wounds inflicted by the hand of man. On this reading, if a victim is in a moribund state as a result of natural causes, his murderer is fully liable and may be prosecuted and punished for homicide. Jakobovits, supra n. 8, at 124 n. 44. In this respect, it is not clear whether brain damage attributed to the combined effects of drugs and alcohol, the suspected cause of Karen Quinlan's affliction, should be regarded as resulting from natural causes or the hand of man.
72 The passage of time has demonstrated these prognostications to be incorrect, highlighting the difficulties of reliance on even the best medical testimony. In fact, questions have arisen regarding the validity, or at least the completeness, of the material in the Quintan trial record with respect to comparable cases. A crucial passage is from the testimony by Dr. Plum: “Extensive studies on several hundred such subjects … up to the present time record no patient who has recovered sapient behavior after being in this kind of physiologically unresponsive condition for a period of six months”. Quinlan I, at 476. Later in his testimony, Dr. Plum adverted to certain ambiguities in this statement, but this reference was not followed up at trial with requests for further elaboration. It has subsequently been suggested that many of the subjects of the studies referred to by Dr. Plum died fairly soon after entering their “physiologically unresponsive state”, not as a direct consequence of the underlying disorder, but rather from infections following decisions by the doctors to terminate antibiotic treatment. One doctor has observed: “Had the doctors quietly acceded to the family's wishes, medical reality would have taken over. It is rare for a vegetative patient to be kept indefinitely on a respirator”. Halberstam, Michael, “Other Karen Quinlan Cases Have Never Reached Court”, New York Times (2 November 1975), E9.Google Scholar Thus, evidence on long-term prognosis for patients in Karen's condition is in reality quite sparse. Karen herself is now providing evidence on the subject; she has already confounded the predictions of all the physicians save Dr. Plum in her successful weaning from the respirator.
73 355 A.2d at 660.
74 Id. at 652.
75 Id. at 651.
76 137 N.J. Super, at 259, 348 A.2d at 818, quoted at 355 A.2d at 665.
77 355 A.2d at 665–66.
78 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965).
79 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).
80 355 A.2d at 663.
81 Id. at 664.
82 Id.
83 Id. at 669.
84 Id. at 669–70.
85 Id. at 671 (note omitted).
86 Id. at 666.
87 See supra n. 72.
88 355 A.2d at 672.
89 Burt, Robert A., “Authorizing Death for Anomalous Newborns” in Milunsky, A. and Annas, G.J., Genetics and the Law (New York, Plenum Press, 1975) 435–470.Google Scholar
90 Id. at 440.
91 Id. at 437.
92 If the court determined that Karen were goses and that termination of treatment would constitute only the removal of an impediment, rather than an active hastening of death, there would be a basis in Jewish law for authorizing termination of treatment.
93 Milgram, Stanley, Obedience to Authority (New York, Harper and Row, 1974).Google Scholar
94 Burt, supra n. 89, at 448.
95 Burt, supra n. 89, at 446.
96 Veatch, supra n. 14, at 79–80. See also Halberstam, supra n. 72.