She'elah (Question): May Jews assist others in committing suicide or request that others assist them in their own suicides?

Teshuvah (Answer):

Killing oneself and murdering others have always been technically possible but forbidden in Jewish law. In our time, though, the matter has taken on new dimensions. On the one hand, while people in the past had no choice but to endure the pain of dying, with minimal medication available to ease their suffering, now we have sophisticated ways to diagnose levels of pain and to calibrate pain medication to need. We also have developed hospice care, where the patient is supported physically, psychologically, and socially by a whole team of people, including family and friends. These factors should diminish the number of people who seek to take their lives.

Unlike nonreligious legal systems, Jewish law (halakha) assumes the existence of an omnipotent, omniscient and benevolent Creator whose purposes cannot always be fathomed. Jewish law also assumes a network of relationships between and among the Creator and all human beings. As a result of these assumptions, there is purpose in every instant of life, for the individual and for the community, even though the purpose is not always readily apparent. Two overarching principles that provide great guidance are G-d's commandments that Jews, individually and collectively, live by his commandments and be holy. This article explores how these assumptions and principles, along with other applicable Jewish law concepts, apply to physician-assisted dying.

The first part of the article deals with the tension between Divine and human healing in the Bible and the Talmud. The second part focuses on the halakhic status of medical practice and, in particular, the question of whether or not it constitutes the fulfilment of an independent halakhic obligation (mitzvah) in Jewish law. Section three is concerned with the legality of coercive life-sustaining medical treatment and the role played by patient autonomy in this area of the law. The theological aspect of human healing is referred to in section four; and the fifth section is devoted to a discussion of recent Israeli cases involving coercive medical therapy and end of life issues.

Under Biblical law, the victim of an assault is entitled to claim medical expenses from his or her attacker and this proviso provides the basis for the Talmudic ruling that “permission has been given to the physician to heal.” It is assumed that the Bible would not actively condone conduct which does not accord with true faith and hence, it may be inferred from this law that human healing is a religiously legitimate activity and not an act of rebellion against God.

Editor's Note: On September 19, 1998 Professor Emeritus at Hebrew University, Ze'ev Falk died during the preparation of this manuscript. His place as a major contemporary scholar in the field of law and religion led the editors to publish here that portion of the manuscript Professor Falk had completed, plus references he intended to explore in later sections of the manuscript.

At present, the question arises, with respect to terminal patients, whether certain life can be considered worthwhile and reconcilable with human dignity. As a result of Kantian philosophy, modern people tend to assume that human beings are able, and should aspire, to make judgments regarding their life and bodies as well as their souls. In this view, a patient should be given full information about his or her situation and about the alternatives. Using this information, he or she should have the capacity to decide by him/herself what course of action is to be taken. In the modern view, even a patient in a coma should be treated according to the expression of his or her will, for example as formulated in a “Living Will.”

Biblical and rabbinical thought seem to have reflected an understanding for suicide. However, suicide belies a key issue unique to Judaism: why, in the course of Jewish suffering and Judaism's struggle to survive, suicide became unacceptable.

The debate surrounding the so-called “right to die” has commanded increasing public attention over the last decade. Opinion polls in many Western democracies would appear to show increasing support for euthanasia and physician-assisted suicide, and a number of recent legal developments have further advanced the cause. As a result of court decisions since 1984, euthanasia has been legally permissible in the Netherlands; physician-assisted suicide was legalized in the State of Oregon in 1994 as a result of a ballot initiative, and in 1995 a voluntary euthanasia Bill was passed in the Northern Territory, Australia. But, even more recently, the “right to die” campaign has suffered reverses. The implementation of the Oregon legislation has been halted by a Federal court pending a determination of its constitutionality; the Northern Territory legislation was overturned by the Australian federal parliament in 1997, and in July 1997 the United States Supreme Court, reversing the decisions of lower courts, declared that there is no constitutional right to physician-assisted suicide or euthanasia.

In his article, Keown articulates what I see as a basically valid reading of the implications of the texts of the Pali Canon on the issues at hand. I particularly like his formulation, ‘to deny death and cling to life is wrong, but equally wrong is to deny life and seek death.’ As the aging Arahat Sariputta says in the vv. 1002-03:

Keown focuses a fair amount of his discussion on the suicide of a few near Arahats. Though I broadly agree with his analysis of these cases, they do pertain to rather rare and exceptional types of people, while for the ordinary person, various central Buddhist values and considerations straightforwardly make it clear that suicide is highly inadvisable. While Buddhism emphasizes that there is much suffering in life, this can, paradoxically, help dissuade a Buddhist from giving in to despair. If suffering of various kinds, gross or subtle, is to be expected in life, then there is less reason for a person to take particular problems so personally—as if the world is conspiring against him or her.

Keown is clear that the Buddhist tradition is remarkably diverse and that his paper presents only one Buddhist perspective, one based on his interpretation of relevant passages from the Pali canon. However, there is a real danger that those readers who are perhaps not broadly read in Buddhism could be misled to think that the position presented in Keown's paper is the Buddhist view rather than a Buddhist view. In fact, he sometimes seems to slide rather far in that direction himself. He states on page two that “an accurate understanding of basic Buddhist values does generate an authentic Buddhist ethic about end-of-life decisions; [and] … suicide, assisted suicide and euthanasia are all contrary to Buddhist ethics.” This claim tends to imply that there is only one normative Buddhist view on these issues. Starting with his premise that “Buddhisms” rather than Buddhism is the more accurate way to speak, it is more likely that there are plural systems of Buddhist ethics rather than a single one, and thus there could be variable authentic Buddhist views on end-of-life issues.

A Christian state or mundus Christianus is not easy to define. It is perhaps one where the public, legal and constitutional institutions are “Christian”. (I shall leave to one side for a moment the problem of defining precisely what I mean by Christian.) T. S. Eliot believed that the Christian state was “the Christian Society under the aspect of legislation, public administration, legal tradition and form.” The “state” can refer to the country, nation, society or culture as a whole or, only to the set of governmental institutions within a country. The latter, narrower meaning is the one I wish to adopt here. I shall define the state as “the set of distinctive institutions whose authority is recognised as legally binding within the territory.”

A theocracy is undoubtedly a Christian state, indeed one par excellence. I shall refer to theocracy as a “type 1” Christian state, for here both form and substance coincide. By theocracy I mean the situation where there is ecclesiastical supremacy and the state machinery is used to further particular religious interests. The early Jewish nation, Geneva under Calvin and various Islamic states around to the world today are examples of type 1 states. In this monistic polity, membership of the church (using that as a generic term for a religious organisation) and membership of the state are coterminous. Full rights as a citizen turn upon whether one is member of the church; those outside the church are second-class citizens. But a Christian state need not necessarily be a theocracy.

Ever since the Enlightenment, scholars in a variety of disciplines have depicted the Western world as growing inexorably more secular. Modern, secular, and scientific modes of thought, they insist, have steadily driven religion out of the public square. Many have portrayed the secularization of the public sphere as not only inevitable but desirable—a Good Thing. In this article, a case study of the New Zealand wars of the 1860s, I question these assumptions. In Victorian New Zealand during this period, settlers and politicians ejected Christianity from the public square for dark and murky reasons. The Enlightenment grand narrative of secular light banishing religious darkness must be seen for what it is: a powerful modern myth whose historical inadequacies ought carefully to be exposed.

Some context for this case study is essential. Up until the 1860s race relations in New Zealand, Britain's southernmost colony, had been mostly peaceful. The indigenous Maori people had generally welcomed Westerners—explorers, whalers, traders, missionaries, and settlers—into New Zealand. These incoming Pakeha (that is, whites in Maori) lived in a Maori world largely on Maori terms. The Treaty of Waitangi, signed in 1840 between many Maori chiefs and the British Crown, guaranteed the tribes full, exclusive, and undisturbed possession of their lands, forests, and fisheries, and all the rights and priveleges of British subjects. In return Maori ceded sovereignty of New Zealand to the Crown. The Treaty required Maori to sell land to the Crown, not private parties.

Dr. George Carey, the Archbishop of Canterbury, told a congregation in Melbourne's St. Paul's Cathedral that he had recently received a letter addressed to “Jesus Christ, care of the Holy Trinity, Father, Son and Holy Spirit, the Heavenly Kingdom.” It had been posted in the United States, but found its way to London. There, a postman, understandably a little unsure as to where the letter should go, had marked the envelope, “Try Lambeth Palace!” Under the public law of England, his was actually a most reasonable course for a civil servant to take. The Church of England is established by law, so if any official question relating to God must be decided, the law presumes that the Church of England is best placed to answer it. The law in New Zealand and Australia is different. Even if the inherited public law in both countries requires the Head of State to be an Anglican, that is where the religious establishment ends. The public law is otherwise agnostic: it makes no judgment about the orthodox and heterodox, and it does not recognize an established church. In these countries, the envelope would lie in a dead letter office, and the correspondent would have been wiser to pray.

Some scholars, like the New Zealand church historian Peter Lineham, have argued that “church and state have been bound to each other in an unequal co-dependency” throughout New Zealand's history. In this partnership the state has always been the stronger partner, with the church having an increasingly smaller role as time goes on. In other words, the state has become more secular. Such a thesis must, however, be qualified. The church does continue to have an important role in relationship to the state in contemporary New Zealand, especially in the provision of social services. This, in fact, becomes a particularly significant difference from the relationship the church had with the state in the nineteenth and much of the twentieth centuries. State aid for education and even for social services was a sectarian minefield and any support was eschewed by the state. However, while more state support for the church in the second half of the century became a significant qualification to ”secularization theory,” neo-liberalism, rationalist economics and the consequent changes to the New Zealand state since 1984 have now raised questions even about this aspect of state support of churches. This paper explores the various types of government support for the Church in New Zealand this century, how that support has waxed and waned, and how now the future holds for the Church as a new century approaches.