How do we balance respecting the dead with the need to help the living?
Question: This year at school we are writing inter-disciplinary reports that have to do with many different moral/ethical dilemmas concerning Medicine and Jewish law. My topic is autopsies. I would appreciate it if you might provide some information about this issue from a Jewish doctor's point of view. Ilana, Jerusalem, ISRAEL
Answer: From a medical perspective, autopsy predominantly serves the purpose of improving quality control in medicine. A physician has the opportunity of finding out whether his diagnosis was correct and whether treatment was appropriate. Additionally, legal authorities use autopsy to investigate cause of death and medical schools use cadaver dissection as a means of teaching anatomy to medical school students. While the medical necessity for autopsy has decreased in the past decades, particularly with the advent of advanced medical imaging, the other two needs remain.
Whether autopsy would be permitted according to Jewish law in a particular case would depend on several related questions, including how one views ownership of the human body, why desecration of a corpse is forbidden, what purpose burial serves, and for how long and for what reasons may burial be delayed. While the topic is complicated, I will try to give you a general overview. There are several biblical principles that circumscribe the scope of autopsy.
Respecting the integrity of the body
It is generally forbidden to desecrate a dead body in any way. This prohibition is called nivel ha'met (desecration of the dead) and it is learned from the biblical passage that instructs us how to handle the body of an executed criminal. The Torah states:
"And if a man has committed a sin worthy of death, and he shall be put to death, and you hang him on a tree; his body shall not remain all night upon the tree, but you should surely bury him the same day; for a reproach to God is he that is hanged. . ."1
Why is the displayed corpse of a human being a dishonor to God and what are the parameters of this mitzvah? At first glance it may appear that the disgrace is because he is a criminal who has lowered himself to the point of requiring execution. 2 While this is definitely an aspect of the mitzvah, the Talmud3 explains that this law applies to all dead bodies and the application is to any situation which is degrading to the corpse.
We respect the human body because man was created in the image of God.
It becomes clear that we respect the human body because man was created in the image of God and the body is the vessel that held the neshama (soul) of the living person. Clearly the physical body itself is not the actual "image" of God, but since the body nevertheless contained the soul and participated in the manifestation of the "image" of God, it is therefore imbued with holiness even after death. 4 As a result the Torah forbids any invasion of the dead body unless there is sufficient justification.
What justifies desecration of a corpse? The Talmud5 questions why we do not perform an autopsy on every murder victim, since were we to discover that the dead person were suffering from one of several terminal conditions (treifah6), we would spare the murderer the death penalty. The Talmudic scholar Rav Kahana answers that such an autopsy could never conclusively exclude such a medical condition, since the defect might have been present in the exact spot where the sword pierced the patient! We learn from here that autopsy is permitted in a situation where it would save a life and is forbidden by the Talmud in the above story only because the autopsy would not have had a practical benefit in saving the murderer.
The Torah also commands that a body be buried as soon after death as possible, preferably on the same day, and adds a separate prohibition of leaving the dead unburied overnight. 7 These commandments are called k'vura (burial) and halanat ha'met (literally leaving the dead overnight). While these commandments also may appear to apply only to executed criminals, Maimonides8 explains that the laws of burial apply to every dead body.
Is postponement of burial always forbidden? In a discussion of what grounds are legitimate for postponing burial and if one may choose to forego burial, the Talmud9 states:
Whoever delays the burial to honor the dead, or to bring a casket and shrouds, there is no transgression . . . it is for the honor of the survivors . . . for the verse says: "his body shall not remain all night upon the tree", i.e., delay that involves shame, similar to being left on the tree. Thus where there is no such shame, it is not forbidden.
Rashi, 10 the preeminent medieval biblical and Talmudic commentator, interprets the Talmud to be explaining that "where the honor of the survivors is increased, there is no shame [to the deceased], and delay [in burial] is permitted." We see that the concern of the Talmud is that by delaying burial, one is showing a lack of respect for the dignity of the body. 11 In a situation in which no disrespect is shown, delay of burial is permitted. This is the justification of postponing burial until relatives have to time arrive. If the delay is to increase the dignity and honor of the dead person, a delay of even several days is permitted.
In other cases where autopsy would be considered honorable or would bring honor to the deceased or his relatives, the prohibitions of desecration and of immediate burial might not stand in the way. For instance, Jewish law considers fulfilling the deceased's expressed or assumed wishes to be according honor to the deceased. While there are dissenting opinions, autopsy to identify a person's killer12 or to identify remains in order to allow the deceased person's wife to remarry13 would be permitted.
It is important to note that lack of burial brings up other important issues. The Talmud postulates that in addition to the act of burial averting disgrace (for instance the decay of the body), burial serves as atonement for the deceased and that complete burial is required. Therefore, were an autopsy to be permitted in a particular case, all organs and bodily fluids must be interred as early as possible following the conclusion of the autopsy and all body parts and fluids must be interred with the body. 14 This requirement would be particularly difficult to fulfill, were anatomic dissection for medical education to be permitted.
According to some rabbis, if a patient dies in the hospital, a patient's intravenous line should be cut off at skin level with the remainder staying in the patient during burial. Even a trauma victim's bloody clothes must be buried with the person. The need to inter all body parts explains the news footage following terrorist attacks in Israel featuring members of ZAKA (Zihuy Korbanot Ason -- a series of voluntary community emergency response teams) meticulously collecting even the scattered tiny slivers of human tissue and blood of the victims for burial.
Benefit from a corpse
Another commandment affecting autopsy is the prohibition of gaining benefit from a corpse. This prohibition is learned by the Talmud15 by analogy from egla arufa (the calf killed as part of the atonement ceremony for a stranger found dead in an area between two cities) and the death of Miriam, Moshe's sister. Most authorities consider the prohibition to be biblical in nature and include all types of benefits, including extraneous benefits. 16 Therefore they rule that one may only derive benefit from a corpse to directly save a human life. However some rabbinic authorities17 consider the prohibition to be rabbinic in nature, including only "usual" types of benefit and permit medical use of the dead body, such as autopsy.
Why might deriving benefit from a corpse by medical dissection be permitted? The former Chief Rabbi of Jerusalem, Rabbi Tzvi Pesach Frank, ruled that examining a corpse for medical knowledge, even by dissection for general medical education, is an indirect use and is not included in this prohibition (while it may be included in the other autopsy prohibitions). 18 Particularly he argues that mere observation is not considered forbidden "benefit." 19 Nevertheless Rav Shlomo Zalman Aurbach unequivocally forbade even observing an autopsy which was not sanctioned by Jewish law. 20
In general we say that our body is God's and we are mere caretakers.
Whose body is it?
It is worthwhile to pause for a moment to consider a fundamental philosophical point. Does an individual have the degree of ownership necessary to justify choosing what will be done with his body after death? That is, may one forgo his honor with respect to desecration of his own body after death? In general we say that our body is God's and we are mere caretakers. But the minority opinion of Rabbi Yaakov Ettlinger, 21 a noted 19th century German rabbi, while not widely accepted, was that to some extent our bodies are our own and if we wish to donate them to science we may. On the other hand, the outcome of this decision is that no one else can decide whether to allow autopsy or to donate a relative's organs, even to save a life.
The accepted opinion was composed by Rabbi Yechezkel Landau, 22 an 18th century scholar, who was asked a question by several British physicians. They had operated on a child with "bladder stones" 23 who subsequently died. A rabbi in London had written to Rabbi Landau to inquire whether he ruled properly in allowing a post mortem examination of the child to discover whether they had operated appropriately so that future patients might benefit from their increased knowledge. He disagreed with his interlocutor and responded that autopsy is only permitted to save the life of a critically ill patient who is in front of us (l'fanenu), but not for the advancement of medical science per se. He argued that there is no end to the prohibitions that might be justified by the reasoning of "possible future gain."
The operative question is what constitutes "l'fanenu" – in front of us -- in the modern world. The clearest case would be an epidemic, such as the mysterious Legionnaires Disease epidemic in Philadelphia in 1976, where one person dies and others are critically ill from the same unknown cause. If an autopsy might determine the etiology of the illness and save the other patients, then autopsy should be permissible. Similarly, if a patient with a life-threatening disease dies following a new or experimental treatment, autopsy to evaluate for toxicity that might affect others with the same disease would be indicated. 24 As a rule an autopsy that might realistically result in saving the life of a currently ill person is indicated. 25 In today's world of instant communication that person may be anywhere in the world. Additionally if a child dies of a genetic disease, an autopsy may be performed to clarify the nature of the illness if that might save the lives of other children in the same family despite the fact that no other children may yet have been born or even yet conceived. 26
A more difficult case was brought to the Israeli Chief Rabbinate in the 1980's during the Israeli war in Lebanon. Many soldiers were suffering severe burns and needed skin grafts. While skin grafts may be life-saving, skin requires time to culture before it may be grafted. Skin taken from a dead person would have to be used later for a person who was not yet burned at the time of the skin harvesting! Is this considered "in front of us"? The Chief Rabbinate ruled that it was permissible because, while we do not know who will need the skin, unfortunately the odds were very high that someone would need it. 27 Similarly, for solid organ transplants, having a transplant list is sufficient even if we do not know which patient will get the organ when we harvest it.
Interestingly, minimally invasive diagnostic procedures which are routinely performed on the living, such as percutaneous biopsy and blood drawing, 28 as well as endoscopies and laparoscopies, 29 are permitted on a dead body, and are not considered to be a desecration of the corpse.
Permitted autopsies must be performed with the same dignity that surgery on a living person would be performed. The incision must be minimized, only those parts of the body which might shed light on the life-saving question at hand may be dissected, the body must remain covered except where exposure is necessary, and all organs must be returned at the conclusion of the autopsy. Burial must then occur as quickly as possible.