The History and Foundational Models of Contemporary Jewish Bioethics and Medical Halakhah (Jewish Law)
The literature of Jewish bioethics has been steadily growing over the past fifty years, primarily in America and Israel. Like in other emerging fields of inquiry, there has been a recognizable pattern to the evolution of its literary corpus. First, general treatises by trailblazing scholars open the investigation.1 Once a sufficient number of scholars
demonstrate interest in the topic of study, multi-author compilations of essays are produced.2 While the publication of general treatises and compilations continue to fine
tune and deepen the original framework of scholarly research, specialization soon follows greatly expanding the scope of interest and application of ideas. Initial examinations of specific topics within the field preliminarily formulated in short articles are soon developed into full, book-length treatments.3 Individual articles are first published in
journals inclusive of more general scholarly interest.4 When a critical mass of authors and
1 Although in 1911, German Jewish scholar Julius Preuss published Biblische-Talmudische Medizin
(Biblical and Talmudic Medicine), his project better aligns with the nineteenth-century Wissenschaft des
Judentum scholarly movement focused on textual and historical analysis than with the initiation of Jewish
Medical Ethics. See Preuss 1993; Rosner 1977. Jacobovitz 1975 (first published in 1959) inaugurated the field. See below.
2 See Rosner and Bleich 2000 (first published in 1979).
3 The earliest example of this phenomenon would be Feldman’s (Feldman 1968) book-length treatment of
abortion and contraception in Jewish law. A more recent example would be the question of defining death by either cardiac or neurological criteria, see Shabtai 2012.
4 For example, Judaism, RJJ Journal of Halacha and Contemporary Society, and Tradition, three
prominent American scholarly journals of more general Judaic interest, were primary media of the publication of Jewish bioethics in the 1960s through the 1980s, after which new journals began to proliferate. It should also be noted that more general medical journals and law review journals were also utilized for publication during this time period. While specialized journals soon emerged within both the general and Jewish study of biomedical ethics, it should be further noted that bioethical publications still appear in more general journals and magazines when there is an intention to include a non-professional readership.
topics has been reached, in large part driven by pressing and problematic actual cases, i.e., bioethical casuistry, new journals specifically dedicated to the field of inquiry are inaugurated.5 When sufficient research on a broad array of topics has been achieved,
encyclopedias are produced.6 When concurrent with this literary development
conferences dedicated to the field are held, professional societies are started, and college courses and graduate programs arise, the field of inquiry matures into an academic discipline. The development of the field of Jewish bioethics and its literature has indeed followed this trajectory.7
Although there has been a modest history of interaction between Jewish law, theology, and medical interventions since Biblical times through the nineteenth century, the field of bioethics, more generally, and Jewish bioethics, more particularly, emerged in the second half of the twentieth century in the aftermath of the Holocaust, along with rapid advances in medical technologies.8 Beginning in 1947 at the Nuremberg Doctors’
trials, post-Holocaust concerns regarding the ethics of scientific experimentation on humans, eugenics, and the privileging of personal autonomy as a human right, i.e.,
5 For example, Assia: A Journal of Jewish Ethics and Halacha (Hebrew), and its English language
counterpart Jewish Medical Ethics and Halacha (JME), first published in 1989 by the Dr. Falk Schlesinger Institute for Medical-Halachic Research, Shaare Zedek Medical Center, Jerusalem, which itself was founded in the late 1960s.
6 See Steinberg 2003a, first published in Hebrew in 1988.
7 See Halperin 2004, in which he charts the historical development of Jewish Bioethics in Israel from 1948-
1998, which essentially and chronologically tracks stepwise with the American version of the field. The most notable difference between American and Israeli Jewish Bioethics is that in Israel the field has a marked influence on legislation. See Sinclair 2003.
8 Newman 1998, 4-14, credits nineteenth-and-twentieth-century liberal Judaism with initiating the critical
study of ethics due to Reform Judaism’s emphasis on ethics instead of ritual obligation. Interestingly, Jewish bioethics, however, was first cultivated by Orthodox Jewish scholars since it was first perceived as a specialized inquiry of ongoing development of Jewish law in response to actual cases. See more on this below.
informed, voluntary, and understanding consent over medical paternalism, led to the formulation of the Nuremberg Code directing medical research ethics (Grodin and Annas 1992). Subsequent advances in scientific knowledge and technological achievement, for example, artificial life support, plus the increasingly complicated administration of the burgeoning health-care industry, all gave rise to the need for the specialized study of medical and biological applied ethics (Barilan 2014, 8).9 In the late 1950s, Immanuel
Jacobovitz, former Chief Rabbi of Ireland and rabbi of the Fifth Avenue Synagogue in New York, later Chief Rabbi of England, published the first book of Jewish bioethics, his newly minted Ph.D. thesis, Jewish Medical Ethics (Jacobovitz 1975, first published in 1959; Crane 2013, 12).10 Jonathan K. Crane (2013, 12-15), a professor of bioethics at
Emory University, attributes to Jakobovitz two guiding and constraining methodological principles that shaped the first few generations of Jewish biomedical ethics: the primacy of Jewish law and its attendant push to discover within the Jewish legal textual tradition clear and definitive normative conclusions.11
As the more general field of medical and biological ethics diversified not only regarding topics of interest, but also in terms of ethical theories and methodologies,
9 Dorff and Crane 2013, 1-3, distinguish between “morals,” which refers to judgments about specific issues,
and “ethics,” which refers to theories of morality. Other define “morals” as a tradition of beliefs
surrounding right or wrong human conduct, while normative “ethics” refers to the nature and justification of decision-making principles. Many authors in Jewish bioethics, however, are not careful about this distinction conventional in the academic philosophical study of ethics.
10 Crane 2013, 12, suggests that Jakobovits was inspired by the then emerging model of Catholic medical
ethics. In an address in 1958, Pope Pius XII (1958) spoke to medical ethical issues surrounding palliative care and end-of-life treatment. For example, his definition of the doctrine of double effect became highly influential in subsequent twentieth-century medical ethics, see Treloar 2013. Jakobovits (1975 xxxv, first published in 1959), in his introduction, does indeed state: “The Paucity of Jewish works on medical ethics contrasts sharply with the profusion of Roman Catholic literary material in this field.” However, he does not explicitly reference Pope Pius XII’s address.
Jewish biomedical ethics likewise followed suit.12 The involvement of rabbinical scholars
from non-Orthodox Jewish denominations, as well as Jewish, university-trained bioethicists, also helped expand the field beyond the predominantly strictly halakhic concerns of Orthodox Jewish scholars. It should also be noted, in keeping with the “Religion and Science” thesis of this dissertation (see p. 8 above), that the more general and specifically Jewish expansion of bioethical theory and method ultimately has begun to influence the theories and methods of some legally oriented Orthodox Jewish scholars, as will be demonstrated below, as well as in chapters five through seven.
Surveying the literary landscape of contemporary Jewish bioethics, Louis E. Newman (1998, 188-203), professor of Religion and Jewish Studies at Carleton College identifies three foundational Jewish bioethical models: the legal, covenantal, and
narrative.13 This tripartite division provides us with a helpful schema within which to
review contemporary Jewish bioethical literature. To these three, we need to add two more: feminist Jewish bioethics and judaized bioethics. Judaized bioethics is somewhat of a catch-all category that includes a broad variety of bioethical scholarship by trained bioethicists, medical practitioners, scientists, and lawyers of Jewish heritage who turn, in part or in whole, to the Jewish textual tradition to further develop their philosophical inquiries (Crane 2013, 15). Although the legal model is historically dominant in the field, we will first take up the covenantal, narrative, feminist, and judaized types in order to better appreciate how these models and their own influences have begun to impinge on
12 For example, see Childress 2009, for a presentation on a variety of methods in bioethics. 13 Also see Crane 2013, 12-15, 30-41, who further develops Newman’s models.
the further development of the legal model in the latest generation of halakhically oriented Jewish bioethical research.
Covenantal Jewish Bioethics
Covenantal ethics are based on the idea that each Jewish person, and the Jewish people as a whole, live in dialectical relationship with God to whom Jews are bound by their covenantal commitments. On the one hand, it is affirmed that God has instructed the Jewish people to perfect the world and has equipped them with the resources and power to do so. On the other hand, the application of power usually entails moral decision making, and thus it is a Jewish religious duty to grapple with how the use or restriction of power better enacts and advances Jewish covenantal values and goals.
In a covenantal framework, for example, the safeguarding of human life is a near- absolute value. Given the covenantal value of esteeming all human life and seeking its betterment, how might covenantal ethics then guide a decision of whether or not to abort a fetus? On the one hand, abortion, as the ending of life, even at a prenatal stage,
arguably erodes a respect for all life. On the other hand, an abortion may be motivated by the desire to enhance or preserve the quality of life of the mother. A covenantal approach to ethical decision making would therefore recognize a question of abortion as a conflict between two life-affirming choices and seek the best resolution given the particular circumstances (Greenberg 1986).14
14 It is interesting to note that while Greenberg himself is an Orthodox rabbi, his ethical methodology is not
rooted in the Jewish legal model to be discussed below. Greenberg believes that the Holocaust taught Jews not to let law alone decide the right and the good, but to measure the law against larger covenantal values. His brief analysis of this weighty issue perplexes as he frames the conflict of values as between a general
Additionally, living in faithful covenantal relationship with God requires that Jews aspire to continuity with earlier generations of their faith community who similarly upheld their covenantal commitments to God, Torah, and Israel (Borowitz 1991). Thus, there is always a present need to consult Judaism’s historic religious literature to help frame issues within a religio-cultural continuum. At the same time, while Jewish covenantal ethicists strive for a continuity of fundamental covenantal values, changing cultural and historical circumstances may open their eyes to the need for radical changes in their application to real life, such as in redefining Jewish sexual ethics, and
reevaluating gender roles and relations (Adler 1998). Put simply, a covenantal-ethical approach to bioethical issues and dilemmas challenges a Jew to define his or her covenantal values and commitments, assess their continuity with the past, reflect upon their potential impact on the future, and thereby make moral decisions pertaining to the present. Needless to say, covenantal ethics presents a potent, but rather loose rubric by which to justify moral decisions.15 This approach aligns best with Reform Jewish
theology, which upholds full autonomy in personal decision making and does not recognize the heteronomous obligations of Jewish law (Marmur 2013). Although the Jewish bioethical literature exercising this methodological model is quite limited, given the relatively large size of the Reform Jewish community within the overall Jewish population, it is a reasonable conjecture that many medical decisions made by American
“weakening of respect for all life,” and the quality of life of a particular mother, for whom an abortion “can be the difference between life and a blasted life” (Greenberg 1986, 145-6). It would seem more apt to frame the conflict as choosing between the respect for the developing life of a particular fetus, i.e., fetal
indication, and the respect for the physical and emotional quality of life of a particular woman, i.e., maternal indication. For more on Greenberg’s ethics of power, see Greenberg, 1995.
Jews in consultation with their rabbis more than less follow the basic method of covenantal ethics.16 The bioethical literature produced by rabbis and scholars of the
Reform movement utilize traditional Jewish and contemporary bioethical sources to create persuasive recommendations, but ultimately affirm the right of the individual to make autonomous decisions, preferably in line with Jewish covenantal commitments. The bioethical scholarship of the Reform community includes the works of rabbis Philip M. Cohen Ph.D., William Cutter Ph.D., Walter Jacob D.H.L., Leonard S. Kravitz Ph.D., Mark Washofsky Ph.D., and Moshe Zemer Ph.D.17 As more women entered the Reform
rabbinate, so did their participation in covenantal Jewish bioethics. The Central
Conference of American Rabbis Journal of the Reform rabbinical association dedicated
their Summer 2012 issue to a symposium on Judaism, Health, and Healing, that consistently reflects this overall method and trajectory (Crane 2013, 14).18
Narrative Jewish Bioethics
At least four twentieth-century intellectual currents merge to give rise to Jewish narrative biomedical ethics. The first is the reclamation of aggadah by haskalah (Eastern- European Jewish enlightenment) and Zionist thinkers in the beginning of the twentieth
16 Reconstructionist, Renewal, and other non-halakhic forms of Pluralistic and Post-denominational
Judaism that privilege personal autonomy over religious heteronomy, should likewise be subsumed within this typology for the purpose of this schematization. See Sarna 2005, xix-xx, who prefers the term “movement” or “stream” to “denomination” when discussing the Jewish, as opposed to Protestant
Christain, community. Jews’ strong ethnic ties historically have resisted strict denominational distinctions, often emphasizing shared peoplehood over differences.
17 See Jacob and Zemer 1994; 1995; 1998; 1999; Gordon and Washofsky 2004; Cohen 2005; and Cutter
2007.
century and continuing with the rise of the modern, culturally Jewish, secular State of Israel. Aggadah may best be described as non-legal rabbinic textual source material, but is sometimes appropriately translated as legend and lore. Midrash aggadah refers to non- halakhic biblical interpretations.19 “Rabbinic Narrative” refers to stories about the
rabbinic sages from the end of the Second Temple Period through the age of the Talmud.20 The arcane study of Jewish law was seen by these thinkers as behaviorally
constraining, removed from real life, and typical of a diaspora mentality. For Zionist and Jewish enlightenment thinkers, lore and legend, story and poetry – all endow the Jewish people with spirit and vitality, a history and a future, and support a commitment to live life fully, not just within the four cubits of the academy, but in the field and on the street. For wissenschaft scholars, the academic study of folklore developed during the nineteenth century was applied in the early twentieth century to Jewish folklorist traditions.21
Interest in the academic study of aggadah continued to grow throughout the twentieth century (Crane 2013, 22). Twentieth-century advances in literary theory and
hermeneutics were likewise applied by late twentieth and twenty-first-century Jewish scholars to this developing field of interest.22
19 See pp. 19-20 above for an example of midrash aggadah concerning the special strength of Goliath from
the Babylonian Talmud. See Strack and Stemberger 1996, 233-46, 276-359, for a survey of a survey of the extant literary sources of midrash aggadah from the rabbinic and medieval historical periods. See Holtz 1992, 177-211, for an introduction to midrash aggadah’s exegetical method.
20 For an introduction to the history of the Second Temple and Rabbinic periods, see Schiffman 1991. For
an introduction to talmudic aggadah, i.e., rabbinic narrative, see Rubinstein 2002. For an introduction to Talmud, more generally, see Solomon 2009, xv-xlviii.
21 “Wissenschaft” refers to the “Wissenschaft des Judentums” movement – i.e., the scientific study of Jews
and Judaism that began in the early nineteenth century in Germany by Jewish scholars and continues until today in the academic field of Jewish Studies. See Meyer 2004. Louis Ginsberg’s The Legends of the Jews (2003), first published in the U.S. in six volumes from 1909-1938, represents renewed academic interest in Jewish folklore. See Hasan-Rokem and Gruenwald 2014.
The second intellectual current may be credited to Christian theologian Stanley Hauerwas. He championed a narrative approach to theology positing that it is our master narratives that provide us with the lenses through which we engage and interpret our world and find meaning within our life experiences (Hauerwas 1974, 45-6; Newman 2008, 194-7). Judaism not only has a master narrative of the Exodus, but also a rich and diverse tradition of religious narrative in the aggadah.
The third contributing current begins in 1984 with the landmark essay, “Nomos and Narrative,” by the late Yale Law professor, Robert Cover (1984; 1995) who acknowledged law and narrative’s respective distinctness, but nonetheless argued
persuasively for their undeniable interrelatedness. Narrative creates the larger framework in which law is made intelligible (Crane 2013, 23). Cover’s thesis not only influenced legal studies in the United States and beyond, but also piqued the interest of Jewish scholars. Dramatic strides have been made in recent years in the study of the relationship of Jewish legal and narrative texts (Wimpfheimer 2011; Simon-Shoshan 2012; Kanarek 2014). Harvard Law School dedicated a conference to this theme in 2005, the
proceedings of which have been published in the Jewish law journal Dine Israel (Stone 2007).
The fourth and final impetus came from the rise of Christian and general narrative bioethics. Christian narrative bioethicists followed Hauerwas’s identification of the passion of Christ as the framing story through which to engage and interpret life
experiences. Non-religious narrative bioethicists have looked to the personal narratives of the patient or people directly affected by a relevant bioethical concern or dilemma, as
well as beyond casuistry to health-related narratives within the literary traditions of the world (Nelson 1997; Charon and Montello 2002; Charon 2008). This new narrative bioethical approach inspired a new Jewish bioethical methodology which turns not to an analysis of Jewish law, but to engagement with rabbinic narrative as the heuristic guide to dealing with bioethical challenges.
Jonathan K. Crane (2013) currently leads this new narrative approach in Jewish bioethics with his recently published, full-length book treatment of a short talmudic narrative telling of the martyrdom of Rabbi Chananya ben Teradyon. He investigates the history of interpretation of the story and how it has been used to buttress halakhic and ethical positions within the euthanasia debate. His goal is less to ascertain the best interpretation and its proper application within a legal analysis, but to demonstrate
through this narrative case study how the innate ambiguities, ambivalences, and pluralism of interpretive meanings in narratives illustrate the ways in which life and art mirror each other. Real life bioethical conundrums, like their narrative analogues, are inescapably fraught with the messiness of life. Crane builds off the previous work in Jewish narrative bioethics on end-of-life decision making by Louis E. Newman (1990) and on the topic of euthanasia by William Cutter (1995; 2006). Laurie Zoloth (1999) of Northwestern University also models Jewish narrative bioethics by applying the biblical story of Ruth with its celebrated values of compassion, inclusion, and loyalty, to the social and