Jewish Biomedical Law Legal and Extra-legal

Dealing with major issues in Jewish biomedical law, this book focuses upon the influence of morality, the rise of patient autonomy, and the role played by scientific progress in this area of Jewish Law. The book examines Jewish Law in comparison with Canon, Common, and modern Israeli law.

Rabbi Daniel Sinclair is Professor of Jewish Comparative Biomedical Law at the College of Management Academic Studies in Tel-Aviv.

Table of Cases

x

Table of Statutes

xii

INTRODUCTION

1

(11)

1. Aim of the Present Work

1

(1)

2. Three Features of Jewish Biomedical Law

1

(2)

3. Methodology

3

(1)

4. Brief Introductory Remarks on the Structure of Jewish Law

4

(4)

(a) Literary Sources

4

(1)

(b) Halakhah and Aggadah

5

(1)

(c) The Distinction between Biblical and Rabbinic Law

6

(1)

(d) The Casuistic Nature of the Halakhah

7

(1)

5. Comparative Law

8

(1)

6. The Influence of Biomedical Halakhah on the Israeli Legal System

8

(4)

1. ABORTION

12

(56)

1. Foetal Status and Abortion

12

(10)

2. Foeticide and Abortion in Early Christian Writings, Canon Law, and the Common Law

22

(6)

3. The Relationship between Law and Morality in the Halakhah on Abortion

28

(7)

4. Morality, the Noahide Laws, and a Limited Form of Natural Law in Abortion Halakhah

35

(12)

5. The Moral Element in the Responsa Literature on Abortion

47

(12)

6. Future Trends in Abortion Halakhah

59

(5)

7. Foetuses and Critically Ill Mothers in Jewish and Israeli Law

64

(4)

2. ASSISTED REPRODUCTION

68

(53)

1. Morality, Naturalism, and Artificial Insemination Using the Husband's Sperm (AIH)

68

(8)

2. Artificial Insemination using Donor Sperm (AID) and the Issues of Adultery and Mamzerut

76

(12)

3. Other Halakhic Problems Associated with AID

88

(4)

4. Moral Objections to AID

92

(3)

5. In Vitro Fertilization (IVF)

95

(7)

6. Halakhic Problems in Relation to IVF Using Donor Eggs or a Surrogate Mother

102

(8)

7. The Role of Aggadah in Determining Maternity

110

(3)

8. Procreative Obligation and Procreative Autonomy in Jewish and Israeli Law

113

(8)

3. GENETICS

121

(24)

1. Introductory Remarks

121

(1)

2. Heredity and Genetics in the Halakhah

122

(4)

3. Genetics and Abortion

126

(2)

4. Genetic Testing

128

(4)

5. Gene Therapy

132

(2)

6. Patenting Genetic Material and Information

134

(2)

7. Genetic Determinism

136

(2)

8. Cloning

138

(7)

(a) Scientific background

138

(1)

(b) Comparative Survey

139

(2)

(c) Jewish Law

141

(4)

4. THE OBLIGATION TO HEAL AND PATIENT AUTONOMY

145

(36)

1. Introductory Remarks

145

(1)

2. Divine Healing and Human Medicine in Jewish Theology and Bible Commentary

145

(5)

3. Theology and Bible Commentary in the Halakhic Literature

150

(4)

4. Nahmanides and Maimonides on the Legal Status of Medical Practice in Jewish Law

154

(5)

5. Coercive Life-Saving Medical Therapy and Limited Patient Autonomy

159

(12)

6. Patient Autonomy in Jewish and Common Law

171

(4)

7. Halakhah and Democracy: Coercive Life-Saving Medical Therapy in Israeli Law

175

(6)

5. THE TERMINALLY ILL PATIENT

181

(47)

1. Introduction to the Law of the Dying Person (Goses) in Halakhic Sources

181

(5)

2. Applying the Law of the Goses to the Terminally Ill Patient in Modern Medicine

186

(13)

(a) Defining the Goses

186

(2)

(b) Applying the Distinction between Impediment Removal and Death Precipitation to Modern Life Support

188

(11)

3. Prevention of Suffering in the Dying Process

199

(2)

4. The Persistent Vegetative State (PVS)

201

(2)

5. Criminal Liability for the Killing of a Fatally Ill Person (Terefah) in Jewish Law

203

(13)

(a) Defining the Terefah

204

(2)

(b) The Legal and Moral Consequences of Killing a Terefah

206

(3)

(c) The Practical Significance of Exempting the Killer of a Terefah from the Death Penalty in Tragic Choice Cases

209

(7)

6. The Exemption of the Killer of a Terefah from Capital Punishment, the Prerogative of Mercy, and the Defence of Necessity in the Common Law

216

(8)

7. Goses, Terefah, and the Humanizing of the Dying Process in the Halakhah

224

(1)

8. The Treatment of the Terminally Ill in Modern Halakhah

225

(3)

6. SCIENCE, HALAKHAH, AND PUBLIC HEALTH POLICY: THE DEFINITION OF DEATH, HEART TRANSPLANTS, ORGAN DONATION, AND THE ALLOCATION OF SCARCE MEDICAL RESOURCES

228

(26)

1. The Definition of Death

228

(6)

2. Heart Transplants

234

(6)

3. Organ Donations

240

(11)

(a) Live Donors

240

(4)

(b) Cadaver Transplants

244

(2)

(c) The Gap between the Halakhah and Modern Organ Transplant Policy

246

(5)

4. The Rationing of Scarce Medical Resources

251

(3)

7. CONCLUSION

254

(14)

1. Law, Morality, and Casuistry

254

(2)

2. Law, Morality, and Rationality

256

(7)

3. Medical Science and Halakhah

263

(2)

4. Limited Patient Autonomy

265

(1)

5. Legal and Extra-Legal Dimensions

266

(2)

Appendix, The Israeli Draft Law: The Terminally Ill Patient, 5762-2002

268

(7)

Select Bibliography

275

(10)

Index

285

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Jewish Biomedical Law Legal and Extra-legal Dimensions

Summary

Author Biography

Table of Contents

Supplemental Materials