Judge Rules that Doctors May Amputate Girl's Hand to Save Her Life- Against Mother's Wishes

In a recent decision of the Tel Aviv Family Law Court, Judge Yehoram Shaked ruled that the Tel Aviv Medical Center could amputate the hand of a minor, A.M. against her mother's wishes in order to prevent the A.M.'s cancer from spreading to her lungs and giving her a 60-65% of survival. (Family Court Case T.A. 26442-04-11.) The Judge wrote that there were two questions before him: First, should A.M.'s hand be amputated? And second, and easier to decide, should we prefer life to death? When the second question is answered in the affirmative, it follows that A.M. must lose her hand to save her life. The mother of the girl said that she believed that prayer and fasting was the solution to A.M.'s medical crisis.

The Judge, citing precedent, wrote that the law of Israel is clear that under the Legal Capacity and Guardianship Law (Sec. 68(b)) the court may not rule on the permissibility of performing an operation on a minor unless the court confirms based on the doctors' expert medical opinion that the surgery is necessary to protect the child's physical or psycho-emotional welfare. According to the Basic Law of Human Dignity and Freedom "every person is entitled to the protection of his life, his body, and his dignity." The Judge pointed out that "life" is listed before "body" implying that the protection of life takes precedence to all other considerations and certainly in this case where A.M.'s life could be saved through losing part of her body.

Furthermore, Judge Shaked quoted from a 1997 case that pointed out that even before the Basic Law of Human Dignity was passed, "Judaism has always glorified the value of human life. The Torah of Israel is not just a philosophy of of ideas and beliefs, but rather a living guide (Torah)- of life and for life."

The Judge also cited Rabbi Yaacov Emden, who writes explicitly that according to Jewish Law we would certainly amputate a patient's entire limb in order to save his life:

In the case of an illness or wound which is exposed and about which the physician has certain knowledge and clear recognition and deals with a proven medication, it is certain that we always, in every matter and manner, impose therapy on a patient who refuses in the face of danger, because the physician has been granted permission (by the Almighty) to cure, for example, to do surgery, to open abscesses, and to splint a limb, even to amputate a limb in order to rescue the individual from death. In all such cases, we perform the surgery and even against the will of the patient because of life-saving. We ignore his will if he does not want to suffer and prefers death to life, but we even amputate a full limb if this is necessary to save his life and we do all that is necessary for saving of life against the will of the patient. This obligation is incumbent on every individual because of the command to not stand idly by your friend’s blood. And the decision does not depend on the opinion of the patient and he does not have the right to commit suicide. (Mor U’Ketziah, Orach Chaim, Sec. 328.)

Judge Shaked then cited a similar case that came before the Supreme Court of Israel in Yael Shefer v. State of Israel (1988). In that case, the parents of a little girl with Tay-Sachs disease requested that the doctors not attempt to save her life if she began to show signs of deteriorating. Justice M. Elon ruled against the parents and wrote that "Even the patient's consent to causing his death is irrelevant; the patient’s ownership of his body is subject to society’s interest in protecting the sanctity of life." He also wrote:

How is the court to determine what are 'the best interests' of the child and what constitutes 'protecting his physical and mental welfare'? Jewish law does not discuss this issue at length, and we have discussed the reason for this (supra, at para. 37)...

Rabbi David Zvi Hoffman (Responsa Melamed LeHo’il, on Rabbi Yosef Karo, Shulhan Aruch, Yoreh Deah 104, at p. 108 [133]) was asked — 'Whether a doctor was obliged to perform an operation even when the parents of the sick child do not wish it? The question depends on the following: a) Does the doctor believe that the operation will produce a cure; b) Even if he is uncertain as to whether the operation will succeed, will he die for certain without the operation?'

Rabbi David Zvi Hoffman, in his response, bases himself on the responsum of Rabbi Yaakov Reischer in Responsa Shvut Ya’acov [122] (see para. 25, supra), that since the patient will surely die without the operation, and since the operation may cure his sickness, he is permitted to undergo the operation. As to the question whether the parents are competent to prevent an operation on their child, Rabbi David Zvi Hoffman held the following (ibid., at p. 109):

'Since it is permissible to carry out such an operation, certainly the wishes of his father and mother are irrelevant. This is because the doctor is obliged to heal, and if he refrains from doing so, he is a shedder of blood. And we do not find a single instance in the entire Torah where the father and mother may endanger the lives of their children and prevent the doctor from treating them.'

The conclusion of the Rabbi David Zvi Hoffman‘s responsum is illuminating: This is the law of Torah; I do not know the law of the land on this issue‘. He was referring to German law at the beginning of the twentieth century. 

Judge Shaked pointed out that in this case A.M. was not facing a death sentence. The medical consensus was that A.M. would certainly die if her hand was not amputated but if they were to amputate, she stood a good chance of surviving. Although, according to the law, parents may refuse medical treatment for their children, in this case, the mother's conduct did not satisfy her obligation to act for the benefit of her child as other devoted parents would act under Section 17 of the Legal Capacity and Guardianship Law.

Judge Shaked also quoted Justice H. Ariel in the Shefer case:

Between these two critical dates when life begins and ends, we seek life each day and try to delay the day of death that was decreed against us: '… How many will pass away and how many will be created, who will live and who will die, who at his allotted time and who not at his allotted time…' (from the Additional Prayer on the High Holidays). Alongside this, we ask in the prayers of those days of judgment: 'In the book of life, blessing and peace, a good livelihood and good decrees, salvation and comfort may we be remembered and inscribed… for a good life…'

Judge Shaked pointed out that we first ask for life and only afterwards for a blessed and peaceful life. He ended his decision by wishing A.M. a speedy recovery and a long and healthy life.

To read more about Judaism's view on the priority of prayer v. medicine see Prescriptions or Prayers by Eliezer Segal. For an essay, in Hebrew, on Judaism's view on prayer v. medicine see Rabbi Ahron Solveichik's book Od Yisrael Yosef Beni Chai. To read more on Jewish Medical Ethics when treating children see General Anesthesia or Conscious Sedation with Restraint: Treating the Young Child from a Jewish Ethical Perspective by Rabbi Yigal Shafran, Ph.D., and Ari Kupietzky, D.M.D. M.Sc. and to read more about who should decide medical questions in Jewish Law see Who Decides – the Patient, the Physician or the Rabbi? by Shimon M. Glick, M.D.

In the U.S. parents are not federally required to provide medical treatment for their children if it is against their religious beliefs and in many states children treated through spiritual means alone are not considered neglected or abused. For the U.S. law on parents opting for spiritual healing see The Child Abuse Prevention and Treatment Act

Sec. 113. RULE OF CONSTRUCTION. [42 U.S.C. 5106(i)](a) IN GENERAL.—Nothing in this Act shall be construed—(1) as establishing a Federal requirement that a parent or legal guardian provide a child any medical service or treatment against the religious beliefs of the parent or legal guardian; and(2) to require that a State find, or to prohibit a State from finding, abuse or neglect in cases in which a parent or legal guardian relies solely or partially upon spiritual means rather than medical treatment, in accordancewith the religious beliefs of the parent or legal guardian.(b) STATE REQUIREMENT.—Notwithstanding subsection (a), a State shall, at a minimum, have in place authority under State law to permit the child protective services system of the State to pursue any legal remedies, including the authority to initiate legal proceedings in a court of competent jurisdiction, to provide medical care or treatment for a child when such care or treatment is necessary to prevent or remedy serious harm to the child, or to prevent the withholding of medically indicated treatment from children with life threatening conditions. Except with respect to the withholding of medically indicated treatments from disabled infants with life threatening conditions, case by case determinations concerning the exercise of the authority of this subsection shall be within the sole discretion of the State.

For a list of state statutes see:

http://www.ndaa.org/pdf/ncpca_statute_child_neglect_abandonment_3_07.pdf.

In the case of Commonwealth v. David R. Twtichell, 416 Mass. 114 (1993), the Court said that "the spiritual treatment provision protects against criminal charges of neglect and of wilful failure to provide proper medical care and says nothing about protection against criminal charges based on wanton or reckless conduct" and therefore the parents could be "subject to the application of the common law of homicide." The spiritual treatment provision in Massachusetts read, as follows: "A child shall not be deemed to be neglected or lack proper physical care for the sole reason that he is being provided remedial treatment by spiritual means alone in accordance with the tenets and practice of a recognized church or religious denomination by a duly accredited practitioner thereof." G. L. c. 273, § 1 (1992 ed.). It appears strange that the Court could say that while the child would not be deemed neglected under the law if the parents only provided remedial treatment by spiritual means, nevertheless the parents could be found guilty of manslaughter for such action/inaction. If the parents are considered to have killed the child, I would think that child was neglected. But the Court wrote that:

The spiritual treatment provision refers to neglect and lack of proper physical care, which are concepts set forth earlier in § 1, as then amended, as bases for punishment: (1) neglect to provide support and (2) wilful failure to provide necessary and proper physical care. These concepts do not underlie involuntary manslaughter. Wanton or reckless conduct is not a form of negligence. See Commonwealth v. Godin, supra at 127. Wanton or reckless conduct does not involve a wilful intention to cause the resulting harm. See Commonwealth v. Welansky, 316 Mass. 383, 397-398, 55 N.E.2d 902 (1944). An involuntary manslaughter verdict does not require proof of wilfulness. See Commonwealth v. Catalina, 407 Mass. 779, 789, 556 N.E.2d 973 (1990); Commonwealth v. Welansky, supra at 397-398, 399. Thus, by its terms, the spiritual treatment provision in § 1 does not apply to involuntary manslaughter.

And in Footnote 9 it cited other cases:

In State v. McKown, 475 N.W.2d 63 (Minn. 1991), cert. denied, 116 L. Ed. 2d 786, 112 S. Ct. 882 (1992), the court held that a spiritual treatment provision in a child neglect statute did not apply to the second degree manslaughter statute. Id. at 67. The Supreme Court of California reached the same general conclusion in Walker v. Superior Court, 47 Cal. 3d 112, 134, 253 Cal. Rptr. 1, 763 P.2d 852 (1988) ("Prayer treatment will be accommodated as an acceptable means of attending to the needs of a child only insofar as serious physical harm or illness is not at risk. When a child's life is placed in danger, we discern no intent to shield parents from the chastening prospect of felony liability"). The same reasoning is reflected in People in the Interest of D.L.E., 645 P.2d 271 (Colo. 1982), a case not involving a criminal charge relating to the death of a child. The same conclusion was reached in Hall v. State, 493 N.E.2d 433, 435 (Ind. 1986) ("Prayer is not permitted as a defense when a caretaker engages in omissive conduct which results in the child's death").

All these opinions reached the result that we have reached, that is, a spiritual treatment statute does not apply to exonerate a parent from some other criminal charge, such as unlawful homicide. Differences exist, however, on the question whether a court's construction of the spiritual treatment statute may fairly be applied to the particular defendant 

For Articles on this topic, see: Prayer vs. Medicine in the Courts by Shawn Francis Peters; Spiritual Healing, Sick Kids and the Law: Inequities in the American Healthcare System, Merrick, Janna C., 29 Am. J.L. & Med. 269 (2003); In God We Trust: When Parents Refuse Medical Treatment for Their Children Based upon Their Sincere Religious Beliefs, Plastine, Laura M., 3 Seton Hall Const. L.J. 123 (1993); Punishing the Faithful: Freud, Religion, and the Law, Williams, Davida A., 24 Cardozo L. Rev. 2181 (2002-2003); Religious Healing in the Courts: The Liberties and Liabilities of Patients, Parents, and Healers, Nobel, Barry, 16 U. Puget Sound L. Rev. 599 (1992-1993); Withholding Medical Care for Religious Reasons, Ronald B. Flowers, JOURNAL OF RELIGION AND HEALTH Volume 23, Number 4, 268-282; Praying for Baby Rena: Religious Liberty, Medical Futility, and Miracles; Smolin, David M., 25 Seton Hall L. Rev. 960 (1994-1995); Healing or Homicide?: When Parents Refuse Medical Treatment for Their Children on Religious Grounds, E. Catalano, Buff. Women's LJ, 2010; Child Welfare vs. Parental Religious Views: What do Pediatricians do When Parents Refuse Life-Saving Care for Their Child? by Stephan R. Paul available here.

To read about Jehovah's Witnesses and medicine see Blood, Medicine and Jehovah's Witnesses By Michael Fry.

To read about the rationale for holding parents responsible for neglecting their children see THE LAW OF OMISSIONS AND NEGLECT OF CHILDREN by WILLIAMSON M. EVERS.