Monday, July 26, 2010

Rambam-Yesodei Hatorah Chapter 5 halacha 6- Saving a Deathly Ill Person By Transgressing the Commandments

כענין שאמרו באונסין כך אמרו בחלאים. כיצד מי שחלה ונטה למות ואמרו הרופאים שרפואתו בדבר פלוני מאיסורין שבתורה עושין. ומתרפאין בכל איסורין שבתורה במקום סכנה חוץ מעבודת כוכבים וגילוי עריות ושפיכת דמים שאפילו במקום סכנה אין מתרפאין בהן. ואם עבר ונתרפא עונשין אותו בית דין עונש הראוי לו: 

Similarly to that which we said by a case of being forced to do something (i.e. someone is holding a gun to your head and telling you to do something) so too [the same laws apply] by sick people. How so? Someone who is sick and on the verge of death and the doctors tell him [or her] that he [or she] can be cured with some object that is forbidden by the Torah, they can use it (i.e. pig will cure a disease, then the sick person can eat pig). [In fact,] a person can be cured using anything that is forbidden by the Torah in a life threatening case except for Idol Worship, illicit relations or killing, for even in a life threatening situation you can not use these things as a cure. If the sick person transgresses and cures himself [or herself with any of these things] the court punishes him [or her] with whatever the punishment is supposed to be [for transgressing this law].  

The idea in this Rambam is to show that in the case of an illness that is bringing someone to death and the cure is a forbidden object is basically a situation where the person is being forced to use that cure that is forbidden by the Torah. It is as if someone is holding a gun to your head and saying eat the non-kosher food or I will kill you. Therefore, the person is allowed to eat the non-kosher food, because he or she is being forced.

However, there is one big difference between this case and the case where someone is actually forcing you to transgress the law (Law 4 in this chapter), the case of transgressing one of the "Big Three" commandments. If a person has a gun held to his or her head and they are told to perform Idol Worship, illicit relations or to kill someone, if they transgress they are not punished. However, in the case of a sick person they are punished if they transgress one of these three commandments. What is the difference?

The difference has nothing to do with the persons situation. For all intents and purposes, these situations are identical. The difference comes in when we are playing the blame game. Who can we blame for the transgression in these cases. In the situation where someone is holding a gun to a Jew's head then, when they transgress the law, they are considered to be doing it against their will. As the Rambam says in fourth halacha,

"Even so, since he or she is forced to transgress he or she is not given lashes and it doesn't even need to mentioned that Beis Din (the court of law) doesn't kill him or her even if he or she is forced to kill against his or her will. The reason for this (that it doesn't have to be stated that he or she is not killed by the court of law) is because a person is only flogged or killed if the person transgresses willingly, with witnesses and a warning." 

However, in our case of a sick person, how can we say it is against their will? Whose will is it if not the sick person's? In the case where someone has a gun to your head, then you are performing the will of the person with the gun. In the case of a sick person there is only one will, the will of the sick person. One can't say that the bacteria eating away at his life has a will (nor did anyone before the 20th century know of any bacteria that could have been blamed). Therefore, if a dying person chooses to transgress one of the "Big Three" commandments in order to save his or her life, as long as there was warning, that person is liable to punishment from the courts.

Practically speaking, there is no cure, to my knowledge, that would require a person to transgress one of the "Big Three" commandments that would have any medical benefits, let alone be capable of saving a person's life. So, in the end of the day, if a person is dying, anything and everything that has proven medical benefits should be done to save the life of a dying person.

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