Wednesday, September 11, 2019

Bodily Autonomy and Halacha

Is bodily autonomy a Jewish value?

Freedom of movement and personal choice is at the very core of liberty. The verse etched on our Liberty Bell is a direct quote from Levitcus 25:10 – “You shall proclaim liberty throughout the land” (on the Jubilee year). “Liberty – דרור” is defined by Rashi to mean “one may live or dwell wherever he pleases and isn’t under the jurisdiction of others.” A Hebrew servant who wished to perpetuate his term of indentured servitude was to have his ear pierced by his master. A pierce to his body by the hands of another person was a symbol of his enslaved status and lack of autonomy.

In Torah, freedom and personal independence is a cherished ideal. “’The Children of Israel are Mine, they are My servants’ (said G-d) – and not servants of servants.”

However, the Torah clearly doesn’t advocate unmitigated bodily autonomy.

For starters, if you actively pursue another person to cause harm, you may be bodily restrained. Likewise, if you seek to physically assault, abduct, or inappropriately touch another person, your autonomy is not respected. By attempting to violate the bodily autonomy of another individual, your own autonomy no longer matters.

Of course, the abovementioned laws don’t contradict the paradigm of bodily autonomy. Instead, they augment it. By threatening to interfere with someone else’s bodily autonomy, you’ve temporarily surrendered your own.

[Parenthetically, your bodily autonomy may also be disregarded if you attempt to steal, rob, or trespass, i.e. if you threaten to violate the property of another individual. Perhaps that’s because one’s property or personal space is an extension of his/her own body. Consequently, you may be rightfully restrained or removed.]

Moreover, your personal autonomy may be suspended if you attempt to mortally harm yourself [2]. Judaism expects a bystander to interfere with your ability to do so. “Do not stand over your brother’s blood.” (Leviticus 19:16). Halacha similarly enjoins us to force-feed a person who is refusing to eat, in a situation where his not eating is directly jeopardizing his life, as advised by expert medical advice.

However, here it gets a bit tricky. Someone’s autonomy may not be violated unless the mortal risk to this individual is real and unambiguous. The medical expert must clinically observe the patient and determine that the patient is in fact ill. Further, the physician must diagnose the illness, and must confirm reasonable possibility that lack of nutrition might aggravate the patient’s condition [3]. Mere speculation is insufficient.

Force-medicating is similar to force-feeding, provided that a medical expert has diagnosed patient with known life-threatening condition and prescribes a particular curative medicine or therapy. [4]

However, here lies an important distinction. If the medical expert prescribes a procedure that also carries risks of its own, the patient has autonomy to decline, depending on the degree of risk versus benefit

Likewise, a person has autonomy to decide whether to undergo a procedure that will safeguard someone else’s life, even if the risk to himself is minimal and the life-saving benefit to the other is certain.

For example, while it might be laudatory to donate one’s kidney or bone marrow to save another’s life, since there is some risk involved, even if just minimal risk, it must be the choice of the donor. We may not violate someone’s autonomy to save someone else’s life if there exists the slightest risk to the former. [5]

Consequently, halacha does not sanction the violation of personal autonomy by mandating vaccination. Firstly, the individual is healthy and is in no present danger. There is no precedent in halacha for coercing preventative medicinal measures. Secondly, every incision or hypodermic/subcutaneous puncture carries a risk, such as allergic or anaphylactic reaction. Furthermore, each particular vaccine carries risks of its own, including severe injury or death. This is an undisputed fact. Even if the risk is minimal, since there is a risk there must be a choice, unless the case can be made that this presently-healthy individual is in serious risk of contracting and succumbing to a prevalent disease that this vaccine may effectively prevent.

What is the risk factor that might justify overriding the patient’s autonomy is this regard?

Halacha prohibits killing spiders on Shabbos, even though there is one-out-of-a-thousand chance someone might be endangered by the spider falling into his food [6]. Apparently, one out of a thousand is insufficient risk.

On the other hand, one in a thousand is considered sufficient risk elsewhere in laws of Shabbos:

Childbirth is considered a potentially-life-threatening situation. Consequently, we may violate Shabbos for the needs of a birthing mother. However, since the mortality rate is “less than one in a thousand,”[7] our sages were strict and required us to avoid Biblically-prohibited labors on her behalf, but to endeavor to do these labors in an unusual manner that isn’t Biblically prohibited.

Surely if our sages were uneasy concerning Shabbos violation, how much more so we ought to be uneasy with regard to violating the autonomy of the birthing mother by forcing her to accept assistance that she has declined.*

However, if no alternative, the labor may be performed the regular way too. Even less than one in a thousand is considered sufficient risk to override Shabbos. How do we reconcile this law with the apparent contradiction from the law against killing spiders?

It’s quite simple. The spider hasn’t even fallen into the food yet. It’s crawling around elsewhere. One may not kill it, since even in event it falls into the food, the risk factor would be a mere one in a thousand. Conversely, a birthing mother is presently experiencing a condition which can potentially result in death, even in less than one in a thousand, but that present condition allows us to violate Shabbos on her behalf.

The takeaway: if it is indeed true that measles has a mortality rate of 1/1000, it would certainly justify violating Shabbos (and violating patient’s bodily autonomy if called for) once the patient presents with measles! If the individual is healthy, then the potential risk of 1/1000 in the possible event that he might contract measles does NOT constitute valid grounds for violating Shabbos, and certainly not his personal autonomy. Clearly, a healthy individual may decline measles vaccine, since a) he is in no present danger, b) he presently poses no danger to anyone else, and c) there is some risk involved in receiving the injection, even if minimal.

“Public health policy” and “herd immunity” are not factors in halacha, so there is no compelling reason to sanction coercing patient to vaccinate in order to protect others from theoretical disease that he might be more prone to contract and spread based on statistical speculation. 

While it is certainly laudatory for an individual to vaccinate out of concern for others more vulnerable in the community, it cannot be mandated. To do so would be a grave violation of the bodily autonomy of those who do not wish to subject themselves to the needle wound and injection that the vaccine entails.

A few more parting thoughts on autonomy:

The Torah prohibits self-inflicted gashes, tattoos, mutilation, castration, or striking oneself in any way [8]. It does not respect the individual’s right to choose in this regard. Judaism sees the body as on loan from the Creator. Your body is not your own but has been entrusted to you for the duration of your life. You are enjoined to return it intact and without blemish. That’s why the Torah exhorts us “Guard your souls exceedingly well.” [9] We have been granted autonomy to safeguard our body and protect it from unnecessary gashes, wounds, and needle stabs.

The Torah commands us to circumcise our male children on their eighth day of life. The child’s bodily autonomy is not respected in this regard, so we don’t need to wait until he’s an adult to ask his permission. Generally speaking, though, the autonomy of children is entrusted to their parents. That’s why a child cannot go where he pleases and must submit to his parents’ guardianship. This is because a  child is not old enough to live independently. Autonomy is commensurate to independence. However, the child does have a degree of autonomy. No one may inappropriately touch, harm or endanger the child, not even his parent.

If circumcision indeed caused actual harm to child, there would be grounds for the state to interfere and protect the child’s autonomy. However, since Jewish circumcision has been observed for millennia with no known adverse effects, and when performed by a competent mohel, is a benign cosmetic surgery with religious significance, the parents’ wishes must be respected. [FGM, on the other hand, has well-established long-term adverse effects on its victims. As such, state has an obligation to protect children from this harmful practice.]

Once the child reaches a certain age, he may no longer be circumcised without his own consent. An adult male may NOT be circumcised against his will, even in ancient times. Moreover, in ancient times when institution of slavery existed, a Jew was not permitted to own a slave who wasn’t circumcised, but he could NOT circumcise a slave against the latter’s will [10].

Parents may presumably pierce their child’s ear even though she’s not old enough to choose to do so herself since there is cosmetic value and no known risks.

In conclusion, our body belongs to G-d, but He entrusts us with bodily autonomy that we must cherish and safeguard. [11]

In a purely-halachic state, vaccination would most definitely not have been enforced, not even during an outbreak. How much more so in a non-halachic state, we must defend bodily autonomy at all costs. No one may be medicated or vaccinated against their will. A child cannot be vaccinated against his parents’ will. 

Similarly, we may not quarantine or banish a healthy individual from the public simply for not submitting to state’s vaccine schedule. That is also a violation of his autonomy and freedom of movement [12].

We cannot afford to tolerate such tyranny. There’s too much at stake.

End mandatory vaccination.

May freedom prevail.

[1] Leviticus 25:55. Bava Metzia 10a.
[2] Likewise, the Sanhedrin cannot convict a person of a crime punishable by corporal or capital punishment just by his own admission, since a person has no true ownership of his body and lacks autonomy to cause himself bodily harm. See Radvaz on Mishneh Torah, Laws of Sanhedrin, 18:6. Conversely, he is believed with regard to monetary matters, since a person has true ownership of his assets and may cede or destroy them if he wishes. However, see Shulchan Aruch Harav, Choshen Mishpat, Laws of Shmiras Guf v’Nefesh, 14, that it is forbidden to destroy one’s assets wastefully because of Biblical prohibition, “You shall not chop down its tree” (Deut 20:9). In Likutei Sichos vol. 34, page 106-106, the Rebbe points out obvious distinction between the prohibition to cause bodily harm versus causing monetary destruction. In the former, one has no permission to do so to begin with since his body is not his own possession. Monetary assets are his own possession, and technically is entitled to destroy them, were it not for a Biblical commandment bidding him not to. This doesn’t contradict tenet that all belongs to G-d, as explained below.
[3] Shulchan 6 Harav Orach Chayim 618:2, 12 והנסמן שם.
[4] Ibid 328:11.
[5] Radvaz in Responsa 3:625. Cited in Pischei Teshuva, Yoreh Deah 157:15
[6] Shulchan Aruch Harav Orach Chayim 316:23.
[7] Ibid 330:1.
[8] Likewise, it’s categorically forbidden to strike one’s fellow, even if the latter had given permission or requested it, since a person has no jurisdiction to inflict harm on himself. Mishna, Bava Kama 90b. See Shulchan Aruch Harav, Choshen Mishpat, Laws of Nizkei Guf v’Nefesh, 4.
[9] Deuteronomy 4:15. Note “your souls” plural. This indicates that each individual is enjoined to safeguard his own personal health and the health of his children for whom he is responsible, not necessarily the ‘health’ of a community. Of course, all Jews bear mutual responsibility for one another (Sanhedrin 27b), but the health of others in no way supersedes explicit Biblical obligation to safeguard his own health. “Your life comes first” (Bava Metzia 62a).
[10] Mishneh Torah, Laws of Milah 1:6. Instead, he was required to sell or emancipate a slave who refused to be circumcised.
[11] See Berachos 35b, that although “the world and all that fills it belongs (exclusively) to G-d” (Tehilim 24:1), nevertheless “He gave the earth to the children of man” (Ibid 115:16). He entrusted it with us to safeguard, but unless we acknowledge and bless our Creator, even eating and drinking would have been forbidden.
[12] Of course, a patient with diagnosed contagious illness who poses present and actual risk to others may be quarantined, since his free movement is directly endangering others, as explained above. However, the "present and actual risk" would need to have been demonstrated empirically and incontrovertibly before any quarantine measure could be justified. Mere statistical conjecture is insufficient.
* Regarding maternity and bodily autonomy, it must be pointed out that a pregnant woman who wishes to give birth at home must be respected as well, as long as she’s assisted by a competent midwife. Even if there are certain risks involved with giving birth outside a hospital without its modern lifesaving measures, there are also inherent risks in giving birth in hospitals, like increased rate of unnecessary c-section, episiotomy, sleep-deprivation, contagions, etc, risks that don’t exist when giving birth at home. As such, a mother’s autonomy must be honored, and insurance companies ought to be required to cover home births. If the woman has a diagnosed condition that presents actual risk, a risk that increases by giving birth outside of a medical facility, then it may be different. Each case ought to be individually considered, and not viewed in a statistical context of “public health.”


coschristi said...

I've really been enjoying your blog. Thank you!

coschristi said...

I've really been enjoying your blog, thank you!