Benjamin Freedman. Duty and Healing: Foundations of a Jewish Bioethic
Routledge, 1999: ISBN 0-415-92180-5

Reviewed by Jennifer H. Weil
Cornell University

It is often said that the Bible is read too literally—that it is, in effect, a story. One to live by but still a story. And as many writers are aware, a story can be interpreted in a number of ways. Benjamin Freedman’s Duty and Healing: Foundations of a Jewish Bioethic is one such interpretation. Through case studies and quotes from the Bible, Talmud and rabbinical characters, Freedman explores Jewish bioethics with a philosophical approach as well as a literary one. He reads the Bible as a story, he interprets the Talmud as a narrative, and, from it, he produces an amazing account of many of the most complex issues facing medicine, family, and religion. As it seems, Benjamin Freedman felt it was his duty to write this thought-provoking work, but it is also the obligation of anyone interested in medicine, faith, or family to read it.

Freedman’s interpretation of halakha, or Jewish law, is a fascinating analysis of many of today’s bioethical issues. Freedman is acutely aware of the myriad of interpretations of the Bible and Talmud, the Jewish Written and Oral Laws, respectively. He says, "The Talmud, as the starting point for Jewish legal discussion, couches its legal principles in concrete examples; the problem this poses is: How are those examples to be interpreted, and ultimately, extrapolated?" (20). The Talmud, as he describes it, does not speak about medicine in the abstract. Instead, it speaks about specific issues of that time. "Rather than state as a rule that a person is allowed to undergo occupational risk, the Talmud will speak of the fact that a man is allowed to climb a rickety ladder to pick fruit" (20). Freedman uses these very dated Talmudic examples to examine many modern day issues: the role of the family, the obligation to consent, the idea of competency, and the role of judgement in making medical decisions.

In his section on family, Freedman asks the complex question, "Who should intervene, when, how, with what warrant, and on the basis of which principles?" (71). In this section, Freedman examines the intrinsic differences between incompetent and competent patients, reminding us that "…voiceless patients are among the most vulnerable members of society" (70). He refers to the Ten Commandments as he tries to unravel the complexities of an adult child’s decision-making responsibility to his/her vulnerable, incompetent parent. "Above all looms the Fifth Commandment: ‘Honor your father and your mother; so that your days may be lengthened upon the land that G—d your L—rd gives to you’ (Ex. 20.12)" (102). Freedman considers this Commandment to be the foundation of a family’s duty. His interpretation is not only scholarly but also poetic. He says, "…The duty to honor parents is the red thread running through, and binding together, these events and circumstances; it is that which explains the role the son seeks to fulfill in medical decision making concerning his incompetent parent" (103).

Informed consent, a competent patient’s right to make decisions about his/her own medical treatment, including refusal of treatment, after receiving information that that patient finds adequate, is considered to be at the heart of bioethics. But, Jewish law says that a patient has a duty to seek and undergo treatment to preserve his/her health. As Freedman describes, the physician has a duty to heal; the patient has a duty to accept treatment and be healed. So, he says that the entire concept of informed consent is negated because Jewish law binds patients to a duty to obey their physician’s orders. Freedman says that there is nothing in Jewish law that resembles the concept of informed consent. He says, "Prominent among the explanations for Judaism’s neglect of (indeed, rejection of) the concept of informed consent is the view that a person has no ‘ownership’ [ein ba’alim] over his own body, his own life. If ‘owner’ there be, that owner is G—d" (175). Yet Freedman interprets this differently when he says, "But for that very same reason, persons have duties with respect to the body, duties to act as prudent caretakers… Hence, only the patient can truly fulfill the demands of bodily preservation and caretaking"(176). He argues against the idea "that the patient is required to conform in all cases and in all respect to the physician’s recommendation" (255). The competent patient is the only one who can know what is best for preserving his/her life. Therefore, the patient needs to have adequate information to make medical decisions. "As a reasonable, responsible caretaker of her own body, held in trust for
G—d, a person is allowed and even required to investigate her medical options and to arrive at an informed and appropriate treatment decision" (255). As Freedman suggests, informed consent is not explicit in Jewish law, but it is implicit. Freedman brings Jewish law to bear on today’s world, reminding us that we must break through the concrete examples and into a more abstract way of thinking about Jewish bioethics.

In his discussion about competency, Freedman makes reference to a "patient game." This game has a rule; it requires the capacity to consent. He says, "those capable of consent should not be authorized to do so unless they can provide recognizable reasons for the choices they make" (241). He acknowledges that there may be other ways to "play the game," but this game begins with communication which he describes as "one party making decisions based upon information supplied by an expert" (241). He continues to explain that this game of consent must end with the patient making his/her treatment choice known. So, if the patient is unable to give a justifiable reason for his/her decision, the patient is considered "incompetent." Freedman refers to a biblical scene in which David attempts to seek asylum as he flees from King Saul. "How does he feign madness? As the Bible relates, he rants, and raves, and scrawls, and drools…" (245). But, Freedman explains that the translation of "feigning madness" literally means that he has lost his reason. He explains further, however, "… in our society, as in any society, the elements of competency must respond to changes in the social context. We should acknowledge that any current understanding is temporary and may need to be reexamined and revised in light of changes, both factual and valuational" (246). Once again, due to its timeless relevance and concrete yet dated examples, the Bible offers a spectrum of issues and ideas from which Freedman derives his conclusions.

Just as he does in his other sections, in the section on Risk: principles of judgment in health care decisions, Freedman asks a question that requires considerable moral examination. Here he questions, "…what risks and harms are a reasonable caretaker permitted to undergo, under what circumstances, and to what ends?" (255). He divides this section into three allowable risks: risking life to lengthen life, risking pain and life for quality of life, and finally what Freedman describes as the threshold of risk. The first allowable risk has to do with cases that involve patients who will soon die. It is permissible for these patients to risk immediate death with the possibility of prolonging life. As he discusses such cases, Freedman touches upon what many consider passive euthanasia. He says, "The idea of ‘being concerned’ (or ‘worried,’ ‘fearful,’ ‘troubled’: chay’y’shinan) over some issue is central to a Jewish approach, or indeed to any ethical analysis of a case of conscience" (263). We may be concerned that a treatment may cause a patient to die sooner than if nature took its course. We then might refer to the advice, "sit and do not act" (264). But, Freedman reminds us that doing nothing is actually doing something. So, you still may violate a duty by doing virtually nothing. Therefore, there is no way to "play it safe" (265). He concludes this section on risking life to lengthen life by saying that there are many reasonable choices. A patient, for example, is permitted to choose to live his/her last days as if death is not imminent as long as this decision is well informed.

The second allowable risk is risking pain and death to improve quality of life. Freedman says that Judaism does categorize some pain as purifying. "The Talmud states that it is a privilege to suffer seven years rather than to die instantly" (279). Yet, he also says that "for at least one important strand in Judaism, it is acknowledged that life can be so devoid of quality that death is preferable" (280). He reasons that Judaism treats pain as both a blessing and a curse. It is something that can be considered good, but it still should be avoided. Indeed treatment can be both a blessing and a curse. "Morphine is dangerous because the doses that may be required over time (as the patient develops drug tolerance) to suppress pain may suppress the patient’s breathing. But morphine may also improve a patient’s breathing, by alleviating chest pain that causes the patient to take shallow breaths" (283). Freedman finds that both ethical and medical decisions about risk and extreme pain remain uncomfortably uncertain.

Freedman refers to the third allowable risk as "The Threshold of Risk: ‘G—d Protects Fools’" (300). Here, Freedman discusses an issue that many of us face in today’s health care market. Do we accept a treatment that is covered by our insurance (public or private), or do we pay out of pocket for a better treatment? The treatment could be superior because it causes fewer side effects, is performed by a more skilled practitioner, may have more immediate results, or may have a faster recovery. Freedman assures us that only the patient can judge the degree of pain and the necessity to relieve it or how necessary it is avoid additional monetary costs. It is in this part of his work that Freedman addresses the idea of risks that the general population finds acceptable. He refers to the use of alarmed monitors in hospitals, which serve to decrease the required number of routine direct observations by health care providers. According to society, the increase in risk is permissible because the likelihood of unobserved emergencies is very small and the cost savings are very significant. The difference in risk is so small that patients are usually unaware that any risk exists. Based on similar reasoning, a risk that becomes acceptable to society often also becomes acceptable to Jewish law. The author suggests that "…risks must be counterbalanced by proportional gains, so that even the greatest risks are allowable under extreme conditions" (262). Even risk and pain can be interpreted in infinite ways.