

by R. Gidon Rothstein

6 Shevat: Tzitz Eliezer on Autopsies

Are autopsies permitted? In the young State of Israel (Tzitz Eliezer 4;14 is dated 6 Shevat, 5712, 1952), the Chief Rabbi, Rabbi Herzog, raised this question (it would be a continuing issue for decades, Israeli doctors pushing for expanded rights to perform more autopsies, rabbinic opinion pushing back) and asked R. Waldenberg (I think, among others) to express his opinion.

Tzitz Eliezer comments on the magnitude of the endeavor, using a rabbinic phrase, that this matter omedet be-rumo shel olam, literally “stands at the top of the world;” he also speaks of cherdat din, the trepidation of judging a topic of great significance. He is offering his view nonetheless because he feels it his responsibility, especially since a great scholar asked him.

I note this opening because it is an underlying attitude that those not immersed in an halachic view of the world might not catch, and can create a gap among those discussing this and other questions. If I think autopsies are fine, and you think they’re prohibited, that’s one kind of disagreement; but if one group thinks they’re fine and helpful, and another concludes (Tzitz Eliezer will actually find many avenues to leniency, but that’s beside my current point) that it’s both prohibited and a desecration of the human body, that’s a much bigger gap. Tzitz Eliezer is fully aware of the stakes here.

Two Talmudic Discussions

Baba Batra 154 tells of a man who sold some of his inherited property and then passed away. His relatives, wishing to void the sale, claimed he had been a minor. When asked if they could disinter the deceased to check for signs of physical maturity, R. Akiva gave two reasons they couldn’t: they didn’t have the right to mistreat the body that way and the signs they were looking for tended to change as the body decomposed.

The discussion there makes clear that that’s true for relatives, who had not put their own money into the deal and owed more respect towards the deceased. For Tzitz Eliezer, R. Akiva’s answer shows both a prohibition against mistreating the body of the deceased and that the prohibition can sometimes be ignored—such as if the purchasers could benefit from examining the body (which was why R. Akiva had to give his second reason).

The second sugya quoted in this context is Chullin 11b, where the Gemara wonders why we don’t have to check every murder victim’s body to be sure s/he wasn’t already a terefah, bearing some physical injury that would have killed him/her anyway. (Killing a terefah is not a capital crime, so the murderer would not be put to death).

When the objection is raised that this would involve nivul, mistreating the body of the deceased, the Gemara argues that it should be permitted to save the life of the killer, and gives another answer. Once again, there is recognition of a general prohibition that allows for exceptions, such as to save the life of the murderer.

That discussion also proves this is a Biblical issue, since nivul, mistreatment, might have been a barrier to finding the information needed to allow putting a murderer to death for his crime.

Noda Bi-Yehuda—What Constitutes Saving a Life?

Among poskim, the first Tzitz Eliezer cites as addressing the issue was Noda Bi-Yehuda (R. Yehezkel Landau, 18th century rabbi of Prague), who was asked about a man in London who had died after a failed attempt to remove his kidney stones (even today, stones of 7mm and larger are unlikely to pass on their own). The doctors wanted to autopsy the body, to learn how better to handle future patients.

The people involved had turned to a rabbi who then turned to Noda BiYehudah. They had offered their own ideas, to allow it and prohibit it, which the rabbi rejected. He pointed out to Baba Batra and Chullin, which showed that autopsies are allowed to save lives, and therefore should be allowed here.

Noda Bi-Yehuda agreed with in principle, but questioned whether this autopsy qualified as saving lives. Without an actual kidney stone patient at hand, general acquisition of knowledge for the possible future patients strikes him as insufficiently pikuach nefesh to allow us to ignore a Biblical prohibition. Expanding the definition of possible lifesaving to include this autopsy would then have to mean that anything we do now that might save a life in the future should qualify as well. That would mean that mixing drugs, making surgical tools, all the lead-in activities of medicine, would be a safek pikuach nefesh and therefore be allowed on Shabbat [my emphasis].

In addition to opposing it for that reason, he worried that allowing this autopsy would lead to autopsies being done regularly, in the name of expanding scientific knowledge.

Despite the general negative tenor, Tzitz Eliezer notes that Noda Bi-Yehuda did agree that the presence of another patient with that same illness would define the autopsy as safek pikuach nefesh. On the other hand, it only permits an autopsy of someone who had had the illness in question, not of bodies in general, even if those would advance general medical knowledge and eventually save lives. [Tzitz Eliezer does not point it out, but in a time of global communication, this requirement seems significantly less of a barrier, since information from the autopsy can quickly reach those treating a patient with the same illness very far away.]

Chatam Sofer—Advance Permission to Autopsy

Chatam Sofer (who lived about fifty years after Noda Bi-Yehuda) addressed a new question, whether someone coud give consent in their lifetime for an autopsy (for either altruistic or financial reasons). In rejecting the idea, he repeats Noda Bi-Yehuda’s logic that calling the general expansion of medical knowledge pikuach nefesh was a slippery slope that would lead to do anything medical on Shabbat.

Without that as a factor, we face an issur hana’ah, a prohibition against gaining benefit from the deceased, as well as the concern with nivul. The deceased’s consent doesn’t help, according to Chatam Sofer, because it shows that the person had a mistaken lack of concern both with the honor of his own body, as well as with that of Hashem.

The idea that mistreating a human body is a disgrace to Hashem as well comes from the Torah’s prohibiting leaving a corpse hanging overnight, even when it’s someone put to death for his crimes. The Torah calls that killelat Elokim, a curse or embarrassment to Hashem; Ramban explained that since the body had been connected to a soul, containing the tselem Elokim, the image of Gd (whatever that means), mistreating it shows a lack of respect to Hashem as well.

[Along these lines, later in the responsum, Tzitz Eliezer notes that the Gemara discusses whether burial is a matter of personal honor or the disgrace of leaving corpses lying around; if the latter, we would not listen to a person who said not to bury him. Tur expressed it as being a general disgrace, to all living people, not just to the person whose body wasn’t being buried.]

Chatam Sofer contrasted the Jewish attitude to that of non-Jews, who assume that a deceased body is just a physical remnant with no special qualities. Jews’ recognition that the body and soul retain some connection even after death, means the body, too, must be treated with respect.

Binyan Tziyon—Limits on Pikuach Nefesh

R. Yaakov Ettlinger (about thirty years after Chatam Sofer, mid to late 19th century in Germany) rejected one avenue of permissibility that the earlier rabbis had accepted, autopsies when there other patients suffering from this disease.

He bases his disagreement on a view of Rashi’s in Baba Kamma, who understands the Gemara to prohibit stealing to save one’s own life (e.g., a person cannot break into a store to take needed medicines); all the more so, he argued, one could not save oneself through the embarrassment or disgracing of someone else.

Even Tosafot and Rosh, who permitted using someone else’s money to save lives (such as by breaking into a pharmacy and taking medicine), would have agreed here, Binyan Tziyon asserts, since there’s no way to repay dishonor done. He also questions the invoking of pikuach nefesh as a rationale, since the deceased has no obligation to observe the mitzvot, including saving lives.

The Difference Between Mothers and Others

Maharam Schick argued with Binyan Tziyon—this is in a second responsum in Binyan Tziyon– that the Gemara Arachin allows extracting a baby from a mother who passed away in childbirth (lo aleinu). The saving of the baby allowed disfiguring the mother’s deceased body, Maharam Schick noted.

Binyan Tziyon disagrees, first, that that qualifies as nivul—since doctors sometimes have to cut open living mothers in just that way, it’s part of childbirth, and might not be considered nivul. Further, that a woman would be willing to forego her honor for her child—or even that people would accept nivul for their heirs in general—is not the same as whether a person would do so to advance medical knowledge to save unknown strangers.

It is also true, he says, that a woman in childbirth anticipates the possibility of a ceasarean more than an ordinary person on the verge of passing away considers autopsies (this is even assuming that we accept consent, which Chatam Sofer had not).

Finally, once the mother passed away, the child inside of her can be thought of as independent, whose life is being threatened by a physical barrier. Opening the mother is, in that way of seeing it, freeing the infant from confinement, which is not true of autopsies.

The Right to Disagree with Greater Forebears

Binyan Tziyon closes by declaring that had the earlier greats heard and rejected his reasoning, he would have bowed to their greater wisdom. Since they hadn’t, and had not addressed his proof from using others’ money to save one’s own life, he felt justified in maintaining his view.

[That point allows me to note a concern of my own, even with the lenienceis Tzitz Eliezer will offer. Noda Bi-Yehuda and Chatam Sofer both worried that defining autopsies as in some sense pikuach nefesh would necessarily imply that all medical acts that might one day help save a life would be permitted on Shabbat. I wish I might have had the chance to ask them whether the standards of safek pikuach nefesh to allow an autopsy must be the same as those for violating Shabbat? After all, we’ve already seen that financial loss can allow an autopsy, where that’s not generally true of Shabbat. If so, it seems possible to entertain the idea that there are different levels of safek pikuach nefesh, that what is enough of a possible saving of life to allow autopsies need not be enough to allow Shabbat violation.]

Respectful Autopsies

Tzitz Eliezer emphasizes that all of this is where the autopsy will be followed by burial, that there is no room to allow leaving bodies unburied for extended periods. Even R. Uzziel who, Tzitz Eliezer notes, allowed autopsies as part of medical school training, required that they be done with respect (more like an operation than an autopsy), that all body parts be returned, and then buried appropriately.

Tzitz Eliezer also cited R. Kook, who was adamant that medical schools should purchase non-Jewish corpses. We need not worry that this would spark hatred among the non-Jews, he wrote, since good non-Jews will understand that part of being the nation tasked with bringing the light of knowledge of God to the world is that it comes with responsibilities as well as privileges. The non-Jews who wouldn’t accept this, R. Kook added, would find other reasons to dislike Jews anyway, so there’s no point in worrying about their reacton. [For those who recall last week’s discussion of R. Kook’s responsum on giving part of a cemetery to Moslems, this is yet another example where R. Kook assumes greater acceptance by non-Jews of our quirks of Jewish law than I would have.]

Last, Tzitz Eliezer cites R Meir Shapiro, of Daf Yomi fame. Aside from expressing his certainty that the bodies used in medical school would not be brought to burial, R. Shapiro said there is no room to rule differently even if that would disappoint Jews intent on going to medical school (it sounds like they were required to provide their own cadavers), even if they threatened to leave the religion over this issue.

R. Shapiro says that it is the consensus of poskim that we do not accommodate such threats [to me, a remarkable contrast with our times]. To give in would be to open ourselves to daily insistences that we bend the rules.

Conclusions

For all that I’ve written at greater length than usual, I also skipped much. From all the sources he cited, Tzitz Eliezer reached the following conlcusions:

1) Where the cause of death is uncertain, and might impact a criminal investigation, there’s room to allow an autopsy. 2) If the illness that killed the deceased is not yet fully understood, an autopsy is allowed, to help current sufferers. 3) If the deceased consented ahead of time, there is some room to allow an autopsy. 4) Relatives have no impact on this question; neither their refusal to consent nor their consent matters.

5) If the deceased’s illness is not fully understood, but there are no current patients or advance consent, a special meeting of rabbis would have to consider whether the medical knowledge to be gained can be considered lifesaving. 6) In all of this, anything taken out of the corpse has to be returned, and the deceased buried.

Another example of balancing competing needs, in this case the medical knowledge to be gained from an autopsy against the rights and responsibilities of treating the Jewish body, formerly connected to a soul and divine spark, with the respect that it requires.