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New York - Autopsies and the Jewish Law |
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News Source: VIN News By Rabbi Yair Hoffman
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File photo of autopsy roomNew York - In almost every venue or endeavor, American citizens generally face three varying sets of laws. There are federal laws, state laws, and local laws. Mature, intelligent citizens view their laws with a sense of pride and duty. Observing them is not some onerous burden. No, meticulous observance of our nation or state’s laws are a matter and source of tremendous pride.
Jewish citizens have a fourth set of laws. They are the laws of the Torah, a tradition of laws that has been observed since Sinai. When facing the tragedy involved in an intimely death of a family member, Jews are often requested that they submit their family member to an autopsy. The problem is that often, this requests is diametrically opposed to one of their deepest values – the observance of Judaic tradition.
In this short essay we will explore five Jewish legal beliefs and traditions. These traditions are, in fact, immutable laws. We must keep in mind that observant Jews would feel as uncomfortable violating these laws as they would feel supporting an enemy combatant of the United States. It is wrong to undermine the laws of the United States, and it is wrong to undermine the laws of the Torah. Just as there exists patriotic fervor and feeling in US law – there is a patriotic fervor and deep feeling in regard to Jewish law. All citizens feel a duty to G-d, country, and family. G-d always comes first in this formula.
The first law deals with the obligation incumbent upon all Jews to bury the deceased body as expeditiously as possible. The book of Genesis tells us that Man was created in the Divine image. It is a matter of utmost import in Jewish law never to insult our Creator by leaving His Handiwork – unburied in a state of indignity and disgrace. Maimonides describes immediate burial as a sacred obligation incumbent upon all of Israel, at all times and in all places. An autopsy takes time and perforce delays the preparation of the body for burial. It is a delay which flies in the face of our duty toward G-d.
The second law deals with disgracing the body. The Talmud (Bava Basra 154a) deals with the prohibition of disgracing or defacing the human body.
The third law deals with a prohibition in ever benefiting from the deceased human body. The Talmud in numerous places (Sanhedrin 47b, Avodah Zarah 29b, as examples) describes how it is reprehensible to ever derive benefit from a deceased human body. The only time an exception to this can be made is to directly save a human life. However, to derive any physical benefit from a body is something that should be avoided at all costs.
The fourth law deals with the notion of theft. The human body is sacred and belongs to no one but G-d. We cannot deface, cut open, and or examine the body of a deceased family member any more than we can do so to the bodies of past presidents of this country buried in Arlington. Just as they are not ours to examine or cut open, so too are the bodies of our family members not ours to examine, cut open or explore even in an autopsy. The issue is one of out and out theft as explained in the Talmud (Gittin 20a, Kiddushin 17a – see also Ran Nedarim 47a).
Finally, the fifth issue deals with sensitivity. Jewish tradition tells us that the soul is in a state of anxiety and anguish until it is buried in the ground. The more it sees its body being explored, cut, etc. the more agitated the soul becomes. One of the most basic ideas in which a society can be judged lies in how that society treats the helpless. Does our society abuse the weak, the elderly, the children – in short, those who cannot speak up for themselves? If so, this does not bode well for us. By the same token we cannot abuse the soul in its most fragile state.
The ideas expressed in this article may seem new to the uninitiated. But these beliefs, customs and traditions lie at the core of the Jewish nation. Whenever they are violated they cause extreme stress and anguish to observant Jews.
The laws of Jewish tradition are every bit as important to observant Jews as the laws of this great nation. It is hoped that this short monograph enabled the reader to appreciate this perspective a bit deeper. The best way to do so is to appreciate the patriotism displayed here to G-d, and not just to country or family. Doing so will be the first step in understanding our fellow man.
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Read Comments (21) — Post Yours »
1
Mar 03, 2010 at 12:32 PM Charlie Hall Says:
There must be an exception that allows one to be buried in Eretz Yisrael, for that necessarily involves a ten to twenty hour delay from the plane flight.
2
Mar 03, 2010 at 12:35 PM Anonymous Says:
Thank you, very enlightening...
3
Mar 03, 2010 at 12:55 PM TheActualLaw Says:
Missing a few facts are we?
1) Many Poskim agree that with today's technology, often discovering the cause of death can directly save someone's life (i.e. if it is discovered that someone died from an adverse drug interaction, this can potentially immediately save someone's life across the globe)
2) If the circumstances of the death are suspicious, discovering the cause of the death actually brings honor to the deceased. (i.e. finding the murderer)
In summary, you shouldn't make it sound that autopsies are always prohibited. There are many circumstances that they are not only allowed, but required.
4
Mar 03, 2010 at 12:57 PM PMO Says:
What it all boils down to is, if you have questions you need to find the most knowledgeable Rav you can find in this area to understand what is and is not allowed. Sometimes, when there is the strong possibility of a genetic disorder that could also kill the deceased individual's children which may only be detected through autopsy, it has been allowed. It has also been allowed when certain types of poisoning have occurred out of fear that the poisons could be in the home or workplace and kill others. One should always assume it is 100% assur and never give the OK to do autopsy just on a physician's say-so. If a physician is insistent, or there are extenuating circumstances, one must step aside and allow experts in this area of halacha to step in and assess the specifics of the situation and make the decision.
5
Mar 03, 2010 at 01:08 PM Anonymous Says:
“ There must be an exception that allows one to be buried in Eretz Yisrael, for that necessarily involves a ten to twenty hour delay from the plane flight. ”
Yes there is such an explicit exception. This can often result in a very delayed burial. A decease Thursday night will result in the body leaving for Israel Saturday night and burial on Sunday. A decease on Saturday night with a Jewish holiday on Monday and Tuesday will result in the body leaving for Israel often on Tuesday and burial on Wednesday. But this type of delay can take place if a person dies in California and burial takes place in New York City. Halocho leaves open exception situations that can be done in accordance with halocho.
6
Mar 03, 2010 at 01:35 PM Charlie Hall Says:
“ What it all boils down to is, if you have questions you need to find the most knowledgeable Rav you can find in this area to understand what is and is not allowed. Sometimes, when there is the strong possibility of a genetic disorder that could also kill the deceased individual's children which may only be detected through autopsy, it has been allowed. It has also been allowed when certain types of poisoning have occurred out of fear that the poisons could be in the home or workplace and kill others. One should always assume it is 100% assur and never give the OK to do autopsy just on a physician's say-so. If a physician is insistent, or there are extenuating circumstances, one must step aside and allow experts in this area of halacha to step in and assess the specifics of the situation and make the decision. ”
A full autopsy is not needed to ascertain a possible genetic problem; a small sample of blood would be sufficient.
7
Mar 03, 2010 at 02:09 PM Anonymous Says:
“ What it all boils down to is, if you have questions you need to find the most knowledgeable Rav you can find in this area to understand what is and is not allowed. Sometimes, when there is the strong possibility of a genetic disorder that could also kill the deceased individual's children which may only be detected through autopsy, it has been allowed. It has also been allowed when certain types of poisoning have occurred out of fear that the poisons could be in the home or workplace and kill others. One should always assume it is 100% assur and never give the OK to do autopsy just on a physician's say-so. If a physician is insistent, or there are extenuating circumstances, one must step aside and allow experts in this area of halacha to step in and assess the specifics of the situation and make the decision. ”
What about a potential murder victim, are police forensic scientists allowed to check the body for DNA/fingerprints?
This could well be the difference between the location, arrest and conviction of a murderer and letting the murderer remain free to kill again.
But it is not a DIRECT case of pikuach nefesh;
On the other hand, it can be done without the body being sliced up or damaged, though it does require handling.
I wonder what the halacha says here? Certainly psaks from over 100 years ago may not adequately answer this because in those days, society had not advanced in forensic science
8
Mar 03, 2010 at 02:27 PM awacs Says:
“ A full autopsy is not needed to ascertain a possible genetic problem; a small sample of blood would be sufficient. ”
And usually in NYC, authorities will settle for a toxicology screen (drawing blood), rather than a full autopsy, in sensitivity to Jewish wishes.
9
Mar 03, 2010 at 02:36 PM Anonymous Says:
“ A full autopsy is not needed to ascertain a possible genetic problem; a small sample of blood would be sufficient. ”
Not always. You need to know what genetic abnormality to look for. Sometimes those genetic diseases can cause structural problems that can be found in an autopsy. For example, there is a rare genetic condition that can cause weak spots or tangles in blood vessels in the brain. If you found those structural problems, you would then know what genes to look for. You can't run a blood test for every possible genetic mutuation/abnormality.
10
Mar 03, 2010 at 03:28 PM PMO Says:
“ What about a potential murder victim, are police forensic scientists allowed to check the body for DNA/fingerprints?
This could well be the difference between the location, arrest and conviction of a murderer and letting the murderer remain free to kill again.
But it is not a DIRECT case of pikuach nefesh;
On the other hand, it can be done without the body being sliced up or damaged, though it does require handling.
I wonder what the halacha says here? Certainly psaks from over 100 years ago may not adequately answer this because in those days, society had not advanced in forensic science ”
Again, whenever there is possible cause, you need to immediately get an expert in this area of halacha on the phone. There are many things that can be done without an autopsy. Always remember that halochos regarding the body and neshoma of the deceased is always priority 1. The police investigation comes second. This is why you need the most knowledgeable individual you can find.
11
Mar 03, 2010 at 03:35 PM ScienceMan Says:
“ Not always. You need to know what genetic abnormality to look for. Sometimes those genetic diseases can cause structural problems that can be found in an autopsy. For example, there is a rare genetic condition that can cause weak spots or tangles in blood vessels in the brain. If you found those structural problems, you would then know what genes to look for. You can't run a blood test for every possible genetic mutuation/abnormality. ”
I don't think you understand anything about genetics.
Any disability that is genetic can be determined through DNA testing (provided science has already figured out which genes are associated with it). Autopsies don't discover if there is a genetic disease - perhaps you're confused with congenital anomalies.
12
Mar 03, 2010 at 03:42 PM Anonymous Says:
"Mature, intelligent citizens view their laws with a sense of pride and duty."
Since when? This is America where we contest everything and fight for our rights against greedy politicians, for examplr Charlie Rangle. In Russia they were told to be proud or else ..
13
Mar 03, 2010 at 03:51 PM Anonymous Says:
"One of the most basic ideas in which a society can be judged lies in how that society treats the helpless. Does our society abuse the weak, the elderly, the children – in short, those who cannot speak up for themselves? If so, this does not bode well for us. By the same token we cannot abuse the soul in its most fragile state."
I am waiting for the day that "our society" worries as much about and acts as fervently to prevent child sexual molestation and to prosecute those who commit it as it does when it comes to autopsies. The protection of child molesters and the demonization of the victims of molestation do indeed not bode well for us.
14
Mar 03, 2010 at 04:34 PM Lawyer Says:
I once wrote an essay on this. Here are a few brief thoughts. Most importantly, these issues must be weighed by a competent Rov:
1. Generally, the "exceptions" have to do with honoring the dead. While usually it is considered a disgrace to delay burial, in some cases it could be considered an honor. For example, transporting the person to Eretz Yisroel for burial, or waiting until the person's children can attend the funeral.
2. Pikuach Nefesh might permit some limited autopsy. However, there is a famous teshuva of the Noda Be Yehudah that the benefit to life must be immediate -- befanenu. Allowing an autopsy simply to benefit the general knowledge of medical science cannot be permitted on the grounds of pikuach nefesh. As some of the posters have indicated, given today's technology and rapid worldwide communication, there may be many cases of lefaneinu.
15
Mar 03, 2010 at 04:36 PM Lawyer Says:
3. As for autopsies on a victim to bring the perpetrator to justice. the Noda Be Yehudah discusses that in the same teshuva. Based on his reading of a gemara in Sanhedrin, he suggests that that purpose could well be considered in Honor of the Deceased. Of course, much depends on the circumstances -- how likely is it that the autopsy will help catch the perpetrator.
Clearly, what must be avoided is routine autopsies. In one reported NY case, an older Orthodox woman died in her home. While there was no evidence of foul play, the coroner insisted on an autopsy. The courts disallowed it -- there was no reason to think any foul play was involved and that the autopsy would ever lead to catching any criminal.
16
Mar 03, 2010 at 07:44 PM David Says:
In NY, there is a religious exemption act that allows families to refuse an autopsy. The Medical Examiner can override that objection only in cases of homicide or when there is, in their opinion, and immediate danger to public health. As per the Chief Medical Examiner of NY himself, this latter option, rarely if ever happens. Even when they can override the objection, they are required to do the absolute minimum necessary, including simply an 'external exam' if that is sufficient. Otherwise, routine autopsies are almost always full body autopsies.
17
Mar 03, 2010 at 09:13 PM Anonymous Says:
“ A full autopsy is not needed to ascertain a possible genetic problem; a small sample of blood would be sufficient. ”
This is not true. There are many inherited abnormalities whose genes have not yet been identified (such as some cardiomyopathies)
18
Mar 03, 2010 at 11:17 PM Anonymous Says:
fyi. If a person dies on hospice there is no autopsies
19
Mar 04, 2010 at 07:32 AM off topic Says:
I know this is off topic, but a paragraph in this article is giving me new ammunition for my fight against smoking in the frum community:
"The first law deals with the obligation incumbent upon all Jews to bury the deceased body as expeditiously as possible. The book of Genesis tells us that Man was created in the Divine image. It is a matter of utmost import in Jewish law never to insult our Creator by leaving His Handiwork"
In my opinion, smoking while alive is more insulting to hashems handiwork, than anything that is done to a body after the neshama has left it. So why is it that orthodox Jews value the importance of a quick burial with no autopsy, and yet the smoking issue, which is a disgusting violation of the body and an insult to hashem with every puff, why is it that somehow loop holes are found to continue to smoke?
20
Mar 04, 2010 at 07:00 PM mottel Says:
A question: if an autopsy is carried out, it is not the family or a rov etc. who is permitting/enabling it, it is the goyishe authorities. It is harrowing to think of somebody being violated etc. but surely we are not oveir the issur, it is the goyishe authorities. Nu so what's the big deal? Try your best to prevent - then recognize that you are not the one with the knife cutting up the meis.
21
Mar 07, 2010 at 07:37 PM Anonymous Says:
Very good and informative news item. Many people (and even religious Jews) who do not understand the importance of kavod hameis. This is the beauty of Torah. The sanctity of the human being is of the uppermost importance. Thank you for educating your readers! Have read many comments from 'frum' Jews here that was both appalling and shocking and hope this will teach them something.