Ep 10 Quarantine In Jewish Law

(1) A response

(2) To my friend, my relative-by-marriage, my confidant, my beloved, the wonderful rabbi, outstanding in Torah, the esteemed teacher and rabbi Leib Fischels, may the Merciful One protect and redeem him.

(3) Regarding your treatise, which you sent to me, and which offers a presentation of the issue that you were asked about by the holy community of London: It happened that someone was ill with a gallstone. The physicians performed surgery, as usual for such an affliction, but it did not cure him, and he died. The sages of that city were asked if it is permissible to dissect the cadaver in that place to see evidence of the root of the affliction, and to learn from it for the future practice of medicine, so that if such a case occurs again, they know how to perform the surgery necessary for a cure without incising him too much, thus minimizing the risks of the surgery. Is this prohibited because it constitutes desecration and disgrace of this corpse, or is it permitted because it leads to the future saving of lives, so that they may take the utmost caution in their craft.

(4) The one who permitted wanted to derive precedent from embalming, for we find the embalming of Jacob, Joseph, and Israelite kings in the Torah. And even though this is for their honor, it is also the honor of the deceased for rescue and salvation to come to the world through him. He also brought evidence from the responsum of Rashba cited by Rema on Yoreh De’ah 363:2, regarding Reuben who instructed his sons to bring him to his ancestral burial place: “It is permitted to place lye on the skin to accelerate decomposition… due to the needs of the hour, Rashba permitted disinterring from the original grave and placing lye on one who instructed that he be brought to his ancestral grave. Certainly [this would be permitted] in the present case, which is before burial.” This is the rationale of the one who permits.

(5) And this is the statement of the one who prohibits: It is stated in Bava Batra 155a, regarding the incident in Bnei Brak, that R. Akiva said: “You have no permission to desecrate it.” The permitting sage responded that the case there is different: they wanted to desecrate it for money [to see if the deceased was a minor, whose transactions are invalid], so R. Akiva told them that they have no permission to desecrate it. That is not the case here, where it is needed to save lives. All of the above is the debate that took place in London.

(6) Your Excellency rejected the evidence stated by both, and all of your Excellency’s words are Torah, fitting of the one who stated them. Certainly embalming is not disgraceful at all. On the contrary, it is for [the deceased’s] honor. Placing lye on the deceased is also not desecration or disgrace. The lengthy exchange about this was unnecessary, and your Excellency has already explained this sufficiently. Regarding the words of the one who prohibited—certainly if we would say that this is a matter of saving lives, the one who permits obviously rebutted well, namely, that R. Akiva’s prohibition for monetary needs does not serve as precedent for the need to save lives. Your Excellency responded to the words of the one who prohibited: “In fact, his prooftext for prohibiting demonstrates, to the contrary, that it is permissible. For there (Bava Batra 144b) the Talmud states: ‘For the sake of the buyers, let it indeed be desecrated.’ It is thus clear that due to the buyers’ losses, we do not pay attention to desecration of the deceased.”

(7) In truth, your Excellency responded well to the prohibiting sage. However, since I do not know who the one who prohibits is, and perhaps he is a Torah scholar, it is my tendency to seek merit. Perhaps his intention is that it is nevertheless clear from this [passage in the Talmud] that the heirs, the family of the deceased, may not desecrate [the corpse] even if it would cause them losses, since they are relatives. This is explicit in Tosafot ad loc. s.v. “zuzei yahavinan” and in Rema’s glosses to [Shulhan Arukh] Hoshen Mishpat 107:2: if the litigant is a relative of the deceased, we protest against him so that he does not delay the burial of the dead for the sake of having a debt repaid. Presumably, in the present case as well, one may not do anything to the deceased without the consent of his relatives, and the prohibiting sage stated that the heirs have no right to consent to his desecration.

(8) Your Excellency also cited a prooftext from Hullin 11b: “if you say: let us desecrate this [victim] to save the life of that [murderer]”—that is, it should be permissible to desecrate the murder victim in order to save the murderer [from punishment, if the victim was found to be terminally ill in any case]. And if you say that in that case it is certain that a life will be saved, whereas in the present case it is uncertain that the doctors will cure someone next time due to this autopsy, the response is that there, too, it is uncertain that the victim will be found to have been terminally ill. Moreover, even if it uncertain that a life will be saved, all of the prohibitions of the Torah are superseded, except for three. Your excellency wrote about this at length. Regarding this, I say that the Talmud’s statements are puzzling. How could it say that we desecrate [the victim’s corpse] in order to save a life? On the contrary. The desecration serves to kill the murderer, for if we do not desecrate, the murderer will be saved, because we will say that he killed someone with a terminal illness. Rather, this is the interpretation of these words. If you suggest that the Torah does not permit desecration, perforce it commands us to put [a murderer] to death without examining and without any concern that the murder victim has a terminal illness, it would make more sense to say that the Torah commands “the congregation shall save”—namely, that we must be concerned lest he killed someone with a terminal illness, and therefore [the murderer] should not be put to death without an examination. And let there be desecration, for if the Torah permitted desecration, there is no reason to be concerned about desecration. Moreover, if we say that the murderer can never be put to death unless the victim is examined, this desecration is for the honor of the victim, and anything for his honor does not constitute desecration.

(9) I have written all of this in accordance with your words, for you call this saving lives. But I am puzzled. If this is considered even a questionable case of saving lives, why must you engage in all of these mental gymnastics? It is clear and explicit that even an uncertainty supersedes the severity of Shabbat, and there is an explicit mishna on Yoma 83 that the possibility of saving a life supersedes Shabbat. And there on 84b it states that not only an uncertainty concerning the present Shabbat, but even an uncertainty concerning a different Shabbat [supersedes]. However, this all applies when there is a present case of uncertainty concerning a risk to life—such as a sick person or collapsed building. Similarly, in the case in Hullin regarding a murderer, the risk to life is present. So too in the monetary case in Bava Batra, the potential damage is present. But in our case, there is no ill person who needs this. Rather, they want to study this discipline in case they encounter a sick person who requires it. We certainly do not supersede any Torah prohibition or even a rabbinic prohibition due to such a slight concern. For if you call this concern “an uncertainty pertaining to a life,” then any task related to healing—grinding and cooking medicine or preparing a scalpel for bloodletting—will be permitted on Shabbat, perhaps they will encounter a sick person who requires it that night or the next day. It is also difficult to distinguish between concern for the need arising in the near future and concern for the need arising in the distant future. Heaven forfend that such a thing should be permitted. Even gentile physicians do not gain surgical experience with just any corpse, but only with those put to death by the law or with those who themselves consented to it while living. If we, God forbid, are lax in this matter, they will operate on every corpse to learn anatomy and physiology, so that they may know how to cure the living. Therefore, this is all unnecessarily lengthy, and there is no lenient approach whatsoever. In my opinion, your Excellency was mistaken in rushing to respond leniently.

(10) I have written what seems correct to me. The words of one who seeks peace.