The Ethics of Palliative Sedation

Recently, I was asked about the ethics of palliative sedation (also known as "terminal sedation").

This is separate from palliative care, and the problems of hospice. For the purpose of this question, we are talking about sedating someone to the point of unconsciousness for the duration of their lives, because of great pain. Death is still weeks away, but doctors are not able to alleviate suffering without inducing unconsciousness.

On the one hand, one is fulfilling the mandate of relieving a person's pain; for more on that mandate, see Rabbi J. David Bleich's 2002 Tradition article, Palliation of Pain. 

On the other hand, the idea of putting someone into a permanent unconscious state seems a lot like killing them.

I haven't been able to find much in halachic literature, but I did find an interesting response from Rabbi Dr. Mordechai Halperin, one of the leading authorities in Medical Halachah in Israel. The original Hebrew is here; my translation is below:

Greetings,

I wish to receive counsel and guidance regarding my 91-year old mother, who has fractures all along her spine due to osteoporosis. Recently she fell and was bounced around, and since then she has experienced great pains.

The advice of the doctors is to sedate her, to prevent pain. According to the doctors she will not return to walking, or to moving her lower body. She can move her arms lightly. However, she is still lucid.

The question: May one go along with the doctor's advice and introduce her into sedation to prevent pain? I understand that this sedation would become a permanent state for the rest of her life.

I would appreciate it if you could respond by telephone. Thank you in advance.

Response:

The discussion is of a lucid woman. Therefore, this depends exclusively upon her desire, and one should ask her directly.

What do you think? And can you provide supporting sources?

How Jewish Law defines the application of Jewish Ethics

Jewish law and Jewish ethics are intertwined, with one defining how the other is implemented. An ethical mandate must still be fulfilled only within the letter of the law; a law must be followed with ethical behavior.

Here is an example, from a book I’ve been reviewing recently, the Chazon Ish’s Emunah uBitachon (Perek 3 – translation and any errors are my own):

At times, ethical obligations and halachic rulings are a single unit, with the law determining what the ethical system will prohibit or permit.

For example: Bava Batra 21b says regarding competition between schools that there is no legal standing for an argument [against a new competitor] of, ‘You are interrupting my livelihood.’

Therefore, we have the following situation: A city has schoolteachers who are supported by their work, and then new teachers suddenly arrive from elsewhere. Naturally, people are not satisfied with the old teachers and jump to the newcomers, harming the established teachers of that city. The injured parties develop hatred in their own hearts against their new assailants, and out of this heartfelt hatred they seek complaints, blemishes and claims against them. They teach their tongues to speak evil about them, and they go from evil to evil to produce empty charges and awaken the community’s mercy against the cruelty of the newcomers. They increase quarrels and fights, and sometimes even take revenge, as they are capable.

All of these deeds would be innocent of sin if the law agreed that they could block the newcomers. Then the newcomers would be the ones sinning with their lives, rebelling against the law which was stated to Moshe Rabbeinu at Sinai. There would be no prohibition against strife, harmful speech or baseless hatred. Indeed, there would be a mitzvah of battling in order to establish proper religious conduct.

But the law has determined that jealousy between scribes increases knowledge, and that this basic principle is of greater importance than the life of individuals. Therefore, the newcomers are acting within the law and those who stand against them are spilling innocent blood. When they hate the newcomers they are transgressing, ‘You shall not hate your brother.’ When they speak evil against them they violate the prohibition against harmful speech. When they gather groups to quarrel they violate, ‘There shall not be one like Korach.’ When they take revenge by preventing the newcomers from succeeding, they violate, ‘Do not take revenge.’

So when Bava Batra 21b says, “Rav Huna agrees regarding schoolteachers, that they cannot prevent [competition],” that law includes many resulting ethical obligations….

When the city’s established schoolteacher cries out before Gd, ‘Save me from my pursuers, for they are stronger,’ a voice replies from the heavens, ‘Woe to those who act like Zimri and ask for reward like Pinchas! You are the pursuer! You are the one who does not honor the Torah! I wrote in My Torah that a schoolteacher cannot block [competition].’

The upshot: Ethical obligations and expectations are about more than my own moral compass. Within Judaism, my moral compass must be linked with and informed by, my awareness of the law, and must function within that law.

And then, of course, we must add the flipside: Ethics provide boundaries for our actions just as the law does. The fact that one is legally justified in an action does not mean that he must take it; there is a concept of לפנים משורת הדין lifnim mishurat hadin, transcending the law, such that we consider a person praiseworthy if he forgives his rights.

Therefore: The new teachers are praiseworthy if they avoid competing. And those who live in the town are praiseworthy if they do not block the newcomers, even where they have the right to do so.

Kosher Food Producers: Legal Standards or Ethical Standards?

I am a member of the RCA committee that generated ethical guidelines for Kosher Food Certification last year. A major component of our document required that kosher certification agencies verify that food producers have a clear plan for ensuring adherence to the law.

Professor Moses Pava criticized the guidelines in The Forward before Pesach, arguing that we should have demanded that all kosher food producers implement sophisticated ethical codes rather than simply comply with the law.

Pava has a point, one we debated as long as we could before we had to come to a conclusion, but his recommendation is an abstract, ivory tower position, ignoring the realities of both the demands of the law and the nature of the average kosher food producer.

Rabbi Dr. Asher Meir, committee chair, has now published an Op-Ed in this week's Forward explaining the problem. You can read the whole article at The Forward site, but here is a key excerpt addressing Pava's criticism [boldface mine]:

Our task force extensively debated what level of conduct to demand of producers. Ultimately, we decided on lawful conduct for two main reasons.

The objective of our initiative throughout was to insist on adequate standards, not to promote law enforcement per se. Yet as we examined the specific standards we considered vital — truth in labeling, worker safety, animal welfare, etc. — we repeatedly determined that in advanced countries with extensive legislation and regulation in areas of concern to us, existing legal requirements set an adequate bar for ethical conduct. We often raised the question of how to proceed in less developed countries that impose much less demanding standards, but decided that release of the guidelines should not be held up pending resolution of this knotty question.

The second reason for the law-abiding conduct standard was transparency. The most important aspect of the RCA initiative is not the specific demands it contains but rather its creation of a practical mechanism for aligning expectations among kosher consumers, supervisors and producers — expectations that had been grossly transgressed in the scandals referred to by Pava. Aligning expectations requires, above all, requirements that are clear and well understood. By far the most transparent, consistent and well-publicized standard is the law. Our guidelines demand adequate internal mechanisms to enforce legal requirements and emphasize that kosher supervision considers compliance a prerequisite for certification.

Pava’s main proposal is to require all kosher food producers to develop codes of ethics that go beyond the requirements of the law. This proposal has many disadvantages. While ethics codes and programs can be a useful tool for improving ethical standards, they are also subject to many limitations. My position on ethics programs, based on current research and my own experience in the field, is as follows: In order to be successful, ethics programs demand careful design to suit an organization’s unique character, a detailed implementation mechanism and a sustained commitment from employees at all levels. Consequently, implementing a meaningful code of ethics is not practical for most small organizations.

Pava states: “Almost all major American and international corporations now have such statements.” But the RCA guidelines reflect our awareness that much of the kashrut industry consists of small firms and family businesses, not major corporations. By contrast, the requirements of the law are equally appropriate and applicable to both tiny local kosher pizza stores and huge multinational corporations.

An ineffective ethics program is worse than none, because it reinforces norms of cynicism and hypocrisy.

Another casualty of Bernard Madoff: The definition of “Jew”

[Jack's Gaza Update 7.5 is here.]

This is a dated topic, but the column I submitted to the Allentown Morning Call on the topic just ran today. Below is the text:

As a child, I didn’t know that the word “jew” could be used as a verb, that millions of people the world over believed that my family and I were, by dint of our ancestry, avaricious, unethical scoundrels. Instead, I was always taught that Judaism was a religion of ethics and honesty.

In school and synagogue and home, rabbis and parents inculcated in my peers and in me the biblical lesson (Deuteronomy 16:20), “Justice, justice shall you pursue.” The Talmud (Shabbat 31a) warned us that the first question a Jew will be asked in the afterworld is, “Did you engage in commerce honestly.” Jewish law (Tosefta, Chullin 2:24) demanded of us, “Distance yourself from ugly behavior, and from anything that might resemble ugly behavior.” Ethical behavior was inseparable from the laws of kosher, Shabbat and family purity.

As I entered adolescence, though, I saw people throw pennies at Jews to insult their supposed greed. I studied the Merchant of Venice and heard the Christian tale of the betrayal of Jesus, read the Protocols of the Elders of Zion and saw copies of vicious Nazi and Muslim propaganda cartoons. I was accosted by a group of teens in a Long Island Rail Road car; they informed me that “Jews buy Sprite because it’s cheap.” Even some Jews displayed this malignant view of their own ethnicity and religion; seven years ago, then-Pennsylvania gubernatorial candidate Ed Rendell, a Jew, quoted his father’s observation that “the guys who spend the longest time in synagogues on Saturdays are the biggest crooks Monday through Friday.” And so I learned that, indeed, much of the world didn’t translate “Jew” as I did.

Many Jews fight this malicious rendering of “Jew” by promoting the Torah’s ethical instructions. From The Business Ethics Center of Jerusalem to the Center for Ethics at Yeshiva University in New York to Bais haVaad l’Inyonei Mishpat in Lakewood, New Jersey, to many similar efforts, Jews devote significant time, effort and, yes, money, to sustaining righteous behavior among Jews. Particular Jewish individuals stand out for their achievements in this area as well; from philanthropists to political leaders to jurists to unheralded businessmen, there are many positive ethical role models within in the Jewish community.

But despite these efforts, every new Jew-related scandal reinforces the negative stereotype and negates the positive work of all of those institutions and individuals. Whether a Michael Milken or an Ivan Boesky, a Sholom Rubashkin or a Bernard Madoff, it seems that, every year, one or two Jews gain notoriety for their criminality and thereby reinforce in the mind of many the old message that the Jew is unethical, the Jew is self-serving, the Jew is greedy. Never mind that the behavior of one man or even a handful of people cannot possibly be brought as proof of the character of millions. Never mind that Madoff has single-handedly destroyed many, many charities which served Jewish causes. The image that remains in the eyes of the world is that this Jew bilked people out of billions of dollars.

This wound is, to me, Bernard Madoff’s deepest crime and most lasting legacy. I fear that years after the people who lost their money are gone, generations after the charitable foundations and the people they served are gone, this scandalous rendering of “Jew” will remain in the popular lexicon - and Bernard Madoff will be cited as proof.

By nature and training, I try to look for some positive result even in the midst of devastation. It’s hard to find any upbeat note in this cacophany of destruction.. but, perhaps, there will be one, small, positive result: I and others will feel all the more compelled to preach to our communities, and to teach to our children, that most basic of Jewish lessons (Leviticus 20:7): “You shall sanctify yourselves, and you shall be sanctified, for I am the Lord your God.”

You can see the column itself here; the anti-Jewish comments on it are remarkable, and underscore the damage done by Madoff.

The making of a Bernard Madoff: One possible scenario

I visit Jewish inmates at local prisons; I’m glad to say there aren’t too many, but there are some.

(Side note: I’ll never forget a lawyer who walked up to me in the meeting area, while I was waiting for my inmate to be brought down, and said, “I didn’t know Jews go to jail.” He’s lucky I was too surprised to slug him.)

I was once visiting an embezzler who had been a salesman, and had stolen his customers’ fees to support his gambling habit. He explained to me how he had fallen into doing it: In the beginning, he had been able to sign up enough new business, and win enough at the tables, to pay back the company before anything was noticed. Other salesmen and even managers knew about it, but they let it go because he was such a good salesman.

And every month that he made it through reinforced the idea that he could get away with it - in fact, that nothing was wrong.

Things started to go bad because his gambling debt climbed past his customers’ fees, but by the time he realized he couldn’t catch up, it was too late - he was in for too much, and so he needed to come up with successively more criminal strategies to cover up the theft. (Yes, this is what we call aveirah goreret aveirah - one sin drags in another.)

He could never bring himself to stop believing that the next day would bring salvation, that the next gamble would win back everything he had lost, and so he never came clean - until he was arrested.

I wouldn’t know Bernard Madoff from anyone, and every person has his own motivations and complexities, but I can easily envision his scheme starting in much the same way, even without a gambling habit: Investments one quarter don’t meet the expected returns, and he worries about his record and his appeal for new clients - so he takes some of the new money coming in, and uses it to inflate the portfolios of existing clients. It's more about reputation than building wealth.

Madoff develops a great reputation for successful investment, everyone wants in, so he needs to keep the reputation up, needs to provide great returns. It’s easy, just take the incoming money and spread it among other portfolios, all the while pretending that the new portfolios are also doing well. Works like a charm, so long as more new money is coming in than you need to spread around the old accounts.

And every quarter that he makes it through reinforces the idea that he can get away with it - in fact, that nothing is wrong.

Once things turn, though, you’re toast, and it doesn’t take long - maybe one quarter, maybe two - before you’re in too deep to ever climb out. Until, like my inmate friend, you are arrested.

I don’t see a “moral of the story” from the investors’ loss - they all invested in a fund with a great reputation, which had been entirely okayed by the SEC. You can't say, "They should have known it was too good to be true" - that's nonsense, they could not have known.

But I do see a moral in Madoff’s story: Don’t start down an unethical path, because, sooner, or later, you end up on the front page for all the wrong reasons, and you’ll bring down a whole lot of innocent people with you.

Reward, Punishment and Pirkei Avot Part II

In Part I, we saw that Pirkei Avot, which teaches us so much about Jewish ethics, spends a lot of time on our anticipation of reward and punishment, as incentives to Jewish practice.

Why does Pirkei Avot spend so much time on emphasizing incentives, instead of the innate morality of Jewish ethics?

I see five possible reasons, which may be operating in tandem here (since none of them explain all of the emphasis):

1) Reward and punishment is key to the whole concept of mitzvot and aveirot, commandments and transgressions. Gd says that right off the bat in Bereishit 4:7, in addressing Kayin (Cain) and admonishing him to improve his deeds.

2) Divine justice shows that ethical behavior is not only a social need, it is also a religious, bein adam laMakom need, very much part of being a good Jew as well as a good citizen. Think Bereishit 18:19 where Gd describes "the path of Gd" as being the practice of righteousness and justice. Think of the first mishnah in Avot, which anchors ethics in Jewish tradition and Torah.

3) Insistence on Divine reward and punishment, and particularly on life in the next world, is a major response to theodicy, the problem of seeing apparently good people who suffer and apparently evil people who thrive. This problem is a major disincentive to ethical behavior (see Kohelet 3:19-22), and so it must be addressed (as it is explicitly in Avot 4:15).

4) Reward and punishment work as an incentive for good behavior, as noted by Therapydoc in a comment here.

5) And, finally, if we present Gd as just and fair, then we have a role model for our own behavior. The Torah repeatedly tells us to imitate Gd, and it even gives us specific examples (Bereishit 18:21) to show how Gd judges carefully and fairly; we are meant to do the same.

There is much more to say, but I'm on the run today...

Reward and Punishment and Pirkei Avot

I teach a weekly class on Jewish Ethics, and for the past few months we've been looking at the ethical ideals taught in Pirkei Avot, tracing them to their roots in Tanach and then discussing their applications.

This week we're starting to look at how we use Divine reward and punishment as an incentive for our own ethical behavior, or that of our children. In preparing it, I was surprised to realize just how much of Pirkei Avot is devoted to discussing reward and punishment.

Here are the passages which deal directly with Reward and Punishment, whether via Divine intervention or natural consequence (numbering from the Bar Ilan CD version):

Reassurance of general reward
2:2 - Gd will reward you as if you had done everything
2:14 - Gd is credible to reward you
2:15 - Gd is pressing you to act, and there is great reward coming
2:16 - If you will achieve a lot, you will receive great reward, and Gd is credible to reward you
3:5 - If you will accept the yoke of torah, other yokes will be removed from you
3:15 - Your reward is based on your deeds
3:16 - The parable of Gd as proprietor of a business
4:9 - One who fulfills Torah from a position of poverty will fulfill it from a position of wealth
4:10 - Gd has great reward to give you if you work hard at Torah
4:11 - One who performs a mitzvah creates an agent for himself
4:14 - We do not understand why the righteous suffer
4:16 - Prepare in this world for the next (the Hallway parable)
4:17 - Contrasts the satisfaction of the next world with the satisfaction of this world
5:1 - Reward for the righteous who build this world
5:2 - Avraham received great reward for repairing the deeds of the previous generations
5:19 - The students of Avraham benefit in this world and the next
5:23 - Reward is commensurate with investment

Reassurance of general punishment
1:6 - Do not abandon the belief in ultimate punishment
4:9 - One who fails to fulfill Torah from a position of wealth will fail to fulfill it from a position of poverty
4:11 - One who transgresses creates an agent against himself
4:14 - We do not understand why the wicked prosper
4:22 - There is no escape from punishment in the grave
5:1 - Punishment for wicked people who destroy this world
5:19 - The students of Bilam suffer in this world and the next

Statements that specific good deeds will be rewarded
2:7 - When you acquire Torah you acquire life in the next world
3:2 - Gd even rewards a person who sits and studies alone
3:13 - Tithes are a way to protect one's wealth
4:6 - One who honors Torah will be honored by others
5:14 - Reward for study, and for travelling to study
5:20 - One who is modest will earn Gan Eden

Statements that specific bad deeds will be punished
2:6 - You drowned others, and so you will be drowned
3:8 - One who willfully forgets his learning is liable for his life
3:11 - One who "reveals aspects of Torah" against halachah has no share in the next world
4:4 - Punishment for private desecration of Gd's Name
5:8-9 - Specific punishments for specific sins
5:18 - There is no forgiveness for one who causes others to sin
5:20 - One who is brazen will end up in Gehennom

We should use reward as an incentive for mitzvot
2:1 - Work at all mitzvot, because you don’t know the reward of mitzvot
2:1 - Calculate the reward and loss involved in each mitzvah
2:4 - Nullify your will for Gd's, so that Gd will nullify His will for yours

We should use punishment-aversion as an incentive for Torah-observance
2:1 - Remember that Gd records your deeds, and you won’t sin
2:1 - Calculate the reward and loss involved in each transgression
3:1 - You won’t sin if you remember that you will have to give an accounting before Gd

Do not pursue reward here for mitzvot
1:3 - Do not be as servants who serve their master on the condition that they will receive reward, but rather be as servants who serve their master without the condition that they will receive reward
1:13 - One who uses the crown of Torah for his own gain will pass on
2:12 - All of your deeds should be for the sake of heaven
4:5 - One who benefits from Torah is liable for his life

Notes:
1. I did not include passages on certain tendencies or transgressions "removing a person from this world," because I am not sure that this refers to punishment or suffering. I know you could similarly quibble with some of the passages I did include here, but I trust the trends are clear.

2. I did not include the sixth chapter, because, as is known, it isn't.

Why does Pirkei Avot, an ethical work, expend so much energy on our expectation of reward?

To be continued, perhaps, with my answers to that question... [Part II is now up here.]

Want help cheating on your taxes, Rabbi?

Abramoff, Agriprocessors, Boesky...

I join in the dismay and outrage and embarrassed על חטא- klopping every time a Jew is indicted for improper business practices and immoral activity. Yesterday I heard about another case, and again went through the recriminations.

That said, I must add two caveats from personal experience:

1) The rationalizations for financial impropriety are often very tempting, and

2) Rabbis are sometimes involved in it, without even knowing they are doing anything illicit.

One particular case, from my own experience, comes to mind:

A while back I officiated at a funeral for an unaffiliated family. They made all of their arrangements with a local funeral home, and the funeral director was to pay me for my services.

(Disclaimer: As a general rule I don’t charge for funerals, or other services; people want to do things right, they need a rabbi, so how could I make that difficult for them? Bar Mitzvah training, weddings, funerals, I decline payment. But if people offer payment anyway, then I accept it.)

So the funeral director came to write me a check. He pointed out that this check, in tandem with other checks he might write to me for other funerals during the year, could trigger a 1099 form, so that I would have to pay taxes. Being a nice guy, he asked if he could write the check to my Benevolent Fund, so that I could take the money through the Fund, and avoid having to pay taxes on it.

I’m no tax lawyer, but I believe there is a term for this sort of activity: It’s called money-laundering, sending money from A to B via a third party to avoid paying taxes on it. As I understand the law, it’s just as illegal as claiming a charitable deduction for paying yeshiva tuition.

The offer was tempting:

1) I shouldn’t really have a 1099, since I am not really a contractor of the funeral home. I’m the family’s contractor. The funeral home is only cutting the check because the family gave them the money as a third party. The problem is that the payment is on the funeral director's books, which triggers the 1099.

2) It’s not clear how to classify an honorarium given for funeral services, in the first place.

3) I already pay a ridiculous amount in taxes, because clergy have to pay self-employment tax.

4) I give a lot to help others, financially and otherwise (see a good Orthonomics post on this point, here).

5) And, as, the funeral director took pains to tell me: Everybody does it.

As I said above, the justifications and rationalizations for unethical activity are tempting... but I declined.

My point is not to say, "Torczyner is wonderful." I'm not wonderful; I'm just someone who was raised to be honest.

Rather, my points are these:
1) If we expect our community to act ethically, we - and especially rabbis - had better be ready to act ethically, ourselves; and
2) This applies even to the justifiable cases. In reality, all of them are "justifiable" cases, or at least look like it at the time.

False deductions, funnelling money through a Benevolent Fund, accepting payment in cash, hiring a nanny off the books, these are just as illegal as the crimes committed by Agriprocessors in the scandal du jour.

קשוט עצמך ואחר כך קשוט אחרים, the gemara says, with a sharp play on words: קישוטים are ornaments, but קושטא is truth. Ornament yourself before you ornament others, and make sure you are telling the truth before you insist that others do the same.