At the peak of the Covid-19 pandemic in April 2020 there were hospitals worldwide that did not have sufficient respirators to handle the flood of arriving Covid patients with severe symptoms. Hospitals were faced with the unenviable task of having to decide “Mi Yichyeh UMi Yamut”, who will live and who will die. In the midst of this horror, Rav Hershel Schachter stepped in and issued dramatic rulings as to how to manage these horrifying dilemmas.
Kudos to Rav Schachter, who along with other leading Poskim such as Rav Asher Weiss, Rav Mordechai Willig and Hacham Yitzhak Yosef, provided desperately needed guidance for this and a myriad of other Halachic issues that emerged as the world confronted the onslaught of the Corona virus in 2020.
Nine Introductory Concepts
Nine basic Halachic concepts must be clarified In order to grasp the significance of Rav Schachter’s Pesakim.
1. Mishnah Ohalot 7:6 - “HaIshah SheHi Makshah Leileid, MeChatchin Et HaValad BeMei’ehah U’Motzi’in Oto Eivarim Eivarim, MiPenei SheChayehah Kodemin LeChayav. Yatza Rubo, Ein Nog’in Bo, She’ein Dochin Nefesh MiPenei Nefesh.”
This Mishnah teaches that we are forbidden to kill in order to save the life of another.
2. Pesachim 25b - “Mai Chazit DeDama Didach Somek Tefei Dilma Dama DeHahu Gavra Somek Tefei.”
The reason we may not kill one to save another is the famous Talmudic teaching “How is one to know if one’s blood is redder than another.”
3. Mishnah Horayot 3:7 and 8 - “HaIsh Kodem LeIshah LeHaChayot U’LeHashiv Aveidah. VeHaIshah Kodemet LaIsh Lichsut, U’LeHotziyah MiBeit HaShevi. U’BeZman SheSheneihem Omedim LeKalkalah, HaIsh Kodem LaIshah. Kohein Kodem LeLevi, Levi LeYisrael, Yisrael LeMamzer, U’Mamzer LeNatin, VeNatin LeGer, VeGer LeEved MeShuchrar. Eimatai, BeZman SheKulan Shavin. Aval Im Hayah Mamzer Talmid Chacham VeKohein Gadol Am HaAretz, Mamzer Talmid Chacham Kodeim LeKohein Gadol Am HaAretz.”
These Mishnayot set forth a list of who enjoys precedence to save before the other. Priorities include a Kohen before a Levi and a Levi before a Yisrael.
4. Mishnah Sanhedrin 4:5 - “VeKol HaMekayeim Nefesh Achat MiYisrael, Ma’aleh Alav HaKatuv KeIlu Kiyeim Olam Malei.”
The Mishnah famously teaches the infinite value of each life as an “entire world”.
5. Rav Moshe Feinstein – Early 1950’s Ruling Regarding Penicillin Distribution: “Ein Ma’avirin Al HaMitzvot” (Yoma 43a).
An oft-cited Halachic principle is that one does not bypass Mitzvot. In one well known example, a man places his Tallit before donning Tefillin, but if by mistake he encounters the Tefillin first, he may not leave the Tefillin in favor of his Tallit. In this light of this rule, Rav Moshe Feinstein told Israeli Ashkenazic Chief Rabbi Yitzchak Herzog that doctors with a limited supply of penicillin should provide the medicine to the first patients he encounters in the hospital.
6. “Bari VeShema Bari Adif” (Ketubot 12b) and “Ein Safeik Motzi Midei Vadai” (Chullin 10a)
The Halachah assigns priority to those with a high chance of survival over those with a lower chance of survival (Rav Akiva Eiger to Yoreh De’ah 339:1 s.v. V’Chol HaMe’ameitz).
7. Avoda Zara 27b - “U’Mina Teimra DeLechaiyei Sha’ah Lo Chaishinan DeChetiv: “Im Amarnu Navo HaIr VeHaRa’av BeIr U’Matano Sham” (Melachim II: 7) VeHaIka Chayei Sha’ah Ela Lav LeChayei Sha’ah Lo Chayshinu”
This Gemara accords the value of a normal life expectancy (“Chayei Olam”) over only a very brief life expectancy (Chayei Sha’ah). Rav Moshe Feinstein (Teshuvot Igrot Moshe 3:36) defines Chayei Sha’ah as one who doctors expect to live no longer than one year. Rav Schachter follows this view in his landmark Teshuvah.
8. Bava Kamma 85a - “Tana Devei R’ Yishmael: “VeRapo YeRapei” (Shemot 21:19), MiKan Shenitenah Reshut LeRofei LeRafot”
The Torah grants humanity a license to heal. Tosafot (ad. loc. s.v. Shenitenah) explain that otherwise we would be forbidden to attempt to override the divine decree for the individual to fall ill. Ramban (Torat HaAdam, Mossad HaRav Kook edition, page 41) explains that the Torah grants permission for physicians to risk the patient's life in the attempt to save his life.
9. Bava Metzia 62a - “Shnayim SheHayu MeHalchin BeDerech U’BeYad Echad Meihen Kiton Shel Mayim Im Shotin Sheneihem Meitim VeIm Shoteh Echad Meihen Magia LiYishuv Derash Ben Petura Motav SheYeshto Sheneihem U’Yemoto VeAl Yireh Echad Meihem BeMitato Shel Chaveiro Ad SheBa Rabi Akiva VeLimeid VeChai Achicha Amach Chayecha Kodemim LeChayei Chaveircha.”
In a classic Talmudic scenario, two people are walking in the desert and only one of them has sufficient water to survive. Rabi Akiva famously rules that one is not obligated to sacrifice his life and to share his water.
Five Cases Addressed by Rabbi Hershel Schachter in April 2020
Case Number One: Only One Ventilator is Available When Two People Arrive at the Hospital Simultaneously – one person has a high chance of survival and the other has a low chance of survival.
This case is straightforwardly resolved. The ventilator is given to the patient with a higher chance of survival. Dr. Abraham S. Abraham (Nishmat Avraham, Yoreh De’ah 252:2) records this ruling citing Teshuvot Igrot Moshe (Choshen Mishpat 2:74) and Teshuvot Tzitz Eliezer (9:17:10:5). This ruling accords with the Talmudic principles of - “Bari VeShema Bari Adif” (Ketubot 12b) and “Ein Safeik Motzi Midei Vadai” (Chullin 10a). The order set forth in Horayot applies only to patients with an equal chance of survival.
Case Number Two: Removing a ventilator from a very sick person to save someone with a high chance of survival for whom no ventilator is available.
In such a case, Dr. Abraham (ibid.) notes that the Halacha forbids removing a ventilator from a very sick person not expected to survive a year even to save a patient expected to achieve a full recovery if given a ventilator. In this situation, we apply the principles of “Ein Dochin Nefesh MiPenei Nefesh” and “Mai Chazit DeDama Didach Somek Tefei Dilma Dama DeHahu Gavra Somek Tefei.”
Dr. Abraham notes that this applies even if the ventilator is attached to a very aged and ill individual who contributes little to society and the arriving patient is someone who greatly benefits society .
Case Number Three: A person with little chance of survival arrives at the hospital but people with a greater chance of survival are expected to arrive shortly – there is only one ventilator available.
In such a case, one would expect the Halachah to obligate attaching the ventilator to the patient who arrives first due to the rule of “Ein MaAvirin Al HaMitzvot.” However, Rav Schachter boldly rules in such a case that one may withhold the ventilator from such a patient and save it for those with a dramatically greater chance of survival that are anticipated to arrive within “an hour or two.” Rav Schachter explains that in such a scenario, we view “as if the stronger patients are already present.”
We suggest a basis for this bold ruling. Halachah permits violation of Shabbat or Yom Tov only for a current situation of Pikuach Nefesh (Choleh Lefaneinu) following the rulings of the Noda BeYehuda (2 Yoreh De’ah 210) and Chatam Sofer (Yoreh De’ah 336).
However, the Chazon Ish (Ohalot 22:32) rules that one may violate Shabbat not only if the dangerously ill person (Choleh) is Lefaneinu, but even if the sickness (Choli) is Lefaneinu.
In our case although the Choleh is not Lefaneinu but since the Choli is Lefaneinu we may view as if the patients expected to arrive are if they are already present.
Although Halacha teaches “Ein Dochin Nefesh MiPenei Nefesh,” this applies only to actively killing a patient but not to passively withholding care in the attempt to save the lives of others much more likely to fully recover.
Rav Schachter explains that the overarching Halachic principle is helping the patient who will benefit the most from the limited treatment available. He explains that the priorities set forth by the Mishnah in Horayot are no longer operative today. He cites Rav Moshe (Choshen Mishpat 2:74) to that effect and Rav Schachter notes that this has emerged as the normative Halachic position.
Case Number Four: Doctors already intubated a patient not expected to live longer than a year. Shortly after doing so, patients with a much greater chance of long term survival arrive and there is no ventilator left to save their lives.
In such a case Rav Schachter permits placing a DNR (do not resuscitate) order on the patient not expected to live a year. In such a case, if the patient’s heart fails then he need not be resuscitated and the ventilator may be used to save those with a dramatically greater chance of survival.
This is quite a shocking application of the Halachic preference for Chayei Olam over Chayei Sha’ah. It is rather shocking to place a DNR order without the consent of the patient or his health proxy. Nonetheless, Rav Zalman Nechemia Goldberg adopts a similar approach (Techumin 36:209-213).
Case Number Five: A patient has a ventilator to himself and doctors wish to share the ventilator with other patients.
Rav Schachter permits sharing the ventilator with others even if it imposes a fifteen percent or even higher chance of death on the patient who originally had the ventilator. He writes that doctors may risk the lives of one patient to save the life of another who would otherwise definitely die. Rav Schachter applies the Ramban who explains the Torah’s license to heal as permitting physicians to risk life in the attempt to save lives.
This is a bold application of Ramban. Ramban permits risking a patient’s life to save the life of that patient. Rav Schachter expands this notion to risk the life of one patient to save the life of another.
Halachah forbids killing one to save the other, “Ein Dochin Nefesh MiPenei Nefesh.” However, it permits risking one to save another.
Rav Asher Weiss (Minchat Asher on Corona, number 6 in the second edition) concurs with Rav Schachter’s ruling. He notes that standard procedure in Israeli hospitals is to remove less critically ill patients from the intensive care units in favor of those in dire need of the intensive care units.
Conclusion
Rav Schachter, in this landmark Teshuvah, places two major limitations on the rule of “Ein Dochin Nefesh MiPenei Nefesh:” it applies only to active killing and does not apply to placing at risk to save the life of others. The Eternal word of Hashem continues to shine brightly, shedding light even in the darkest days of the corona pandemic. The greatest Poskim of our time apply Hashem’s Eternal Word even to the most ethically complex dilemmas arising in the desperate days of the peak of the coronavirus pandemic. We never cease to be amazed to see Poskim readily apply Halacha to any and all issues arising in all circumstances. The subtle divine hand involved in the composition of the Gemara and in the ongoing Halachic process is evident for all to see.