Stethoscope on a printed sheet of paper

Extraordinary Health Situations

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Stethoscope on a printed sheet of paper

Stethoscope on a printed sheet of paper

by R. Gidon Rothstein

12 Elul: Tzitz Eliezer on Extraordinary Health Situations

On the twelfth of Elul, 5751 (1991), Tzitz Eliezer 19;53 wrote to Rabbi Dr. Avraham S. Avraham with comments on the latter’s recent fourth—and final, so far– volume of Nishmat Avraham, his work on medical halachah. Tzitz Eliezer calls it a מכתב הערכה, a letter of admiration, and ends his opening greeting by saying לחובת הקודש אכתוב לו קצת דברי תורה לענינים שדן בספרו המהולל, out of sanctified obligation [note: that’s how it is in the printed version; but חיבת הקודש, fondness for what’s sanctified, is a much more common phrase in Rabbinic literature, and I wonder whether that’s what he wrote, and it was then misread in the typesetting], I will write a few words of Torah on matters taken up in this praiseworthy volume.

I point it out because he is going to disagree with the author on several points, yet thinks he’s honoring the sefer by writing. And he is. Because in Jewish tradition, to engage with another’s ideas, and to try to push that conversation ever closer to truth, is a high compliment, even if it means that the writer is disagreeing. It is the highest respect to join with another inמלחמתה של תורה, the battle to work towards the fullest truth of Torah.

Does Childbirth Necessitate HaGomel?

Dr. Avraham (Orach Chayyim 219 in that volume of Nishmat Avraham) had quoted Matteh Levi (a commentary on Siddur) to the effect that a woman who gives birth need not say HaGomel for having survived a dangerous situation. Childbirth cannot be inherently dangerous, since it’s necessary to the continued population of the world, and God would not have commanded something dangerous. It’s an odd claim, since many, many women have died in childbirth in history– even today, in parts of Africa, more than one in 30 women die because of childbirth, and the global rate is one in 390, down from 1 in 210 in the last 25 years.

But Matteh Levi thought that was perhaps why Shulchan Aruch didn’t mention HaGomel in this connection, leading R. Dr. Avraham to suggest that an adult man who had a circumcision (a convert, for example, or someone not circumcised as a child), would also not need to recite it.

Childbirth Is Dangerous

Tzitz Eliezer disagrees with the premise. He notes that the Gemara and Shulchan Aruch record various leniencies for women in childbirth (such as the right to violate Shabbat to take care of her, and that such a woman is exempt from fasting on Yom Kippur). While it’s true that there can’t be danger in every childbirth, since the world needs to be populated, there can be danger often enough that it would constitute, in general, a dangerous situation.

This line isn’t fully clear to me, but I think he meant that even if 1 in 7 women died—a horrific rate; even in early nineteenth century Europe, the rate seems to have been no more than 1 in 20—it still means that many more women lived than died. Doesn’t mean it wasn’t dangerous, doesn’t mean it’s not worth a HaGomel, but it does mean that Matteh Levi’s challenge is less pressing. Perhaps Hashem did ordain something that was both dangerous and necessary.

Supporting that view, Shabbat 32a says that a woman’s sins are recalled at the moment of her giving birth, a Mishnah there mentions three sins that lead to death in childbirth, and Shevu’ot 8a (as well as Niddah 31b) picture women in the throes of childbirth as taking oaths they should not have. Tzitz Eliezer thinks that all shows this to be an experience that justifies HaGomel.

In Shulchan Aruch? Do We Rule That Way?

To counter Matteh Levi’s claim that Shulchan Aruch didn’t mention HaGomel for a women who gave birth, Tzitz Eliezer notes that R. Yosef Karo had addressed that in his Beit Yosef, his long commentary on Tur. There, his question had been whether it’s improper for a husband to make the blessing on behalf of his wife, since nothing had actually happened to him.

Beit Yosef thinks it’s fine, leading R. Waldenberg to two conclusions. First, that Beit Yosef is taking for granted that she could have made the blessing; his problem was only whether the husband can do it for her. Second, that once R. Karo dealt with that, he didn’t need to specify it in Shulchan Aruch, since she now falls under the category of those saved from danger.

Later authorities concurred, including Mishnah Berurah 219;17, who rules that a husband can make the blessing for his wife (not so long ago, women did not choose to go to shul to make this blessing, so husbands did it for them). Finally, Tzitz Eliezer notes a report of someone asking R. Yosef Chaim Sonnenfeld (the co-founder of the Eidah haChareidis in Jerusalem, so no feminist) whether a woman should wait a full month after giving birth before reciting the blessing, and he ruled that a week later was already enough time to be sure she had come through without major complications. But did not question the propriety of making the bracha.

A Newly Circumcised Adult

What’s true of the woman applies to the man circumcised as an adult. For all that he’s required to do this, if it produces enough illness to qualify as being among those who took ill and were healed—the category in Shulchan Aruch—he has to thank God. Tzitz Eliezer notes a debate between Shulchan Aruch and Rema as to whether this is only for internal or external injuries, but assumes that Rema would agree here that if he had to take to his bed to recover, that’s enough danger to justify the bracha.

The reason the Gemara and halacha assume that a bedridden person has to thank Hashem for being healed, Shulchan Aruch notes, is that an illness that causes a person to take to bed opens a judgment in Heaven. It is not that this illness is or is not fatal, it’s that a time of danger always raises the specter of being judged and found wanting. Recovery from such an illness leads to thanks that we were given more time to live productive lives, to improve our standing in Heaven.

As a closing note on this, Tzitz Eliezer points out Chida, a couple of hundred years ago, asked Chazon Nachum (a giant of his generation) the broader question, of whether performing a mitzvah always means there shouldn’t be an HaGomel, since people performing mitzvot are supposed to be protected from danger. Chazon Nachum rejected the idea completely. Whenever danger is survived, HaGomel is appropriate.

Choosing Food for Someone Who’s Ill

People who are ill sometimes need to act contrary to ordinary halachah for the sake of their health, but we generally try to minimize the extent. For example, if a person could eat non kosher food or chametz on Pesach, with equal positive effect on his or her health, we prefer the non kosher, since that violates a lesser prohibition than the chametz.

In Orach Chayyim 618;3, Rabbi Dr. Avraham had quoted Or Sameach to Laws of Prohibited Foods 14;14, who suggested that that’s only true for those giving food to a sick person. The patient him or herself did not need to distinguish when picking foods. For Or Sameach, this was the same as the rule that we use the minimal force necessary when stopping someone chasing another person to kill him or her. The potential victim, however, would not need to do so.

Tzitz Eliezer disagrees. First, he notes that Or Sameach himself noted a baraita in Yoma that required someone bitten by a snake to tithe food before eating it, sounding like that person, as well, had to minimize the prohibitions ignored. Too, he found another author who disagreed with Or Sameach, R. Eliezer Zussman Sofer, in a book called Sefer haMakneh. Before we see what he had said, note this, as an example of the remarkable library to which Tzitz Eliezer had access (as did his younger contemporary, R. Ovadya Yosef z”l). It’s not only that he knew a great deal, but that he had seen and absorbed books that others never heard of or knew.

In any case, R. Sofer thought it obvious that the ill person would have to take care as to which prohibitions s/he put aside, but others, who are only putting aside the issue of lifnei iver, of placing a stumbling block before a fellow Jew, might be doing the same act of lifnei iver with any food, regardless of the prohibition attached to that food. It is only because we might have thought they need not worry about this that the Gemara tells us that even lifnei iver is pushed aside only at the necessary level; to give the patient food prohibited at a more serious level when there’s less prohibited food available would constitute lifnei iver.

Donating a Deceased Person’s Kidneys for Money

Tzitz Eliezer digresses to an analysis of lifnei iver, which I don’t have the space for here. I will only say that the basic question is whether it is a separate prohibition, in which case there is room to say there’s no difference between greater and lesser transgressions, or whether it’s an adjunct to each prohibition, in which case lifnei iver of a lesser prohibition is itself lesser as well.

For another time. Because the last point Tzitz Eliezer makes is about Choshen Mishpat 420;31, which prohibits taking compensation for a deceased relative’s kidney’s. Nishmat Avraham reasoned that we can take the kidney from the deceased to save a life, but that it falls under the general prohibition of benefitting from corpses. He adds that those in all stages of the funeral business are only allowed to make money because they are doing that which the relatives would have had to do; they are being paid for freeing the relatives of the need to do it).

But Nishmat Avraham, with the concurrence of R. Shlomo Zalman Auerbach z”l, had added that if the money was needed for the medical care of another relative, it would be allowed.

If we’re talking about transplantation from someone who’s truly deceased—Tzitz Eliezer pauses to record his objections to counting brain death for these purposes, as well as the question of whether kidney transplantation itself is a valid halachic need, topics he’s dealt with elsewhere, and that we’ll leave for another time—he thinks it’s actually permissible to take money for this. He points to earlier authorities, R. Meir Arik and Maharam Schick, who ruled that if it’s a mitzvah to do something, taking money for doing it is no longer considered benefitting from the deceased (Maharam Schick’s case was taking money to pronounce a person deceased).

Since the Jew has to fulfill the mitzvah anyway, the money can be seen as a different issue (by that logic, if the recipient refuses to pay, the donor family would have to donate the deceased’s kidney anyway; in practice, there would probably always be someone willing to pay, so that wouldn’t come up. Tzitz Eliezer does not mention any of this).

He then adds another way to make it clearly acceptable to take money for these kidneys—have the payment come only after the successful transplantation. At that point, the kidney no longer belongs to the deceased, they are the new kidneys of the recipient(s), and from those, Tzitz Eliezer assumes, there’s no prohibition of taking benefit.

He closes by saying that that last was לרווחא דמלתא, additional fuel for his claim that the payment is ok.  Fundamentally, though, he thinks it’s ok, because it’s not for the kidneys themselves—to donate those would be obligatory for other reasons—and therefore not a case of benefitting from prohibited items.

Money for organ donation is a complex topic in our times, but Tzitz Eliezer didn’t venture into it at all. For him, at that point, it was a simple question of whether the family is improperly benefitting from a corpse, and to that, the answer was no.

All part of Tzitz Eliezer’s sense of his obligation or love of the sanctity in Nishmat Avraham, which stimulated his continuing the Torah conversation onward.

About Gidon Rothstein

One comment

  1. You wrote: “…with comments on the latter;s recent fourth – and final, so far – volume…” Rabbi Dr. Avraham completed his sixth volume in 2000 and redid his monumental work in 2007 republishing it in a new four volume edition.

    מטה לוי is NOT a commentary on the Siddur but rather the teshuvos of Rav Mordechai Horovitz, Rav of Frankfurt at the time of Rav Hirsch and Rav Salomon Breuer.

    As an aside: regarding the issue of danger and childbirth – עי’ שו”ת אג”מ יו”ד ב:ע”ד, שו”ת משנה הלכות ט:קפ”ד.

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