Halakhah su Deuteronomio 22:2

Rambam, both in his Commentary on the Mishnah, Nedarim 4:4, and in Mishneh Torah, Hilkhot Nedarim 6:8, declares that the obligation to render medical assistance is encompassed within the scriptural exhortation "And you shall restore it to him" (Deuteronomy 22:2). Although, in context, the verse refers explicitly to restoration of lost property, the Gemara, Sanhedrin 73a, declares that this verse establishes an obligation to "restore" a fellow man's life as well as his property and, accordingly, posits an obligation to rescue a neighbor from danger such as drowning, mauling by an animal or being set upon by bandits. A number of latter-day authorities comment that the accompanying negative prohibition, "You may not hide yourself" (Deuteronomy 22:3) similarly applies to "restoration" of life as well as of property. The Gemara, Sanhedrin 73a, also cites the admonition "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16) as requiring intervention in the aforementioned situations in order to preserve life.

Judaism, on the contrary, posits a clear and unequivocal obligation to preserve the life of another. The attitude reflected in that requirement is most eloquently captured in a talmudic passage regarding the creation of Adam: "Therefore, only a single human being was created in the world, to teach that if any person has caused a single soul of Israel to perish, Scripture regards him as if he had caused an entire world to perish; and if any human being saves a single soul in Israel, Scripture regards him as if he had saved an entire world" (Sanhedrin 37a). The normative obligation to save the life of an endangered person is formulated by the Gemara, Sanhedrin 73a, on the basis of two separate biblical texts. The first is the scriptural exhortation with regard to restoration of lost property, "and you shall return it to him" (Deuteronomy 22:2). On the basis of a pleonasm in the Hebrew text, the Gemara declares that this verse establishes an obligation to restore a fellow man's body as well as his property. A second source is the command "nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). As indicated by the Gemara, Sanhedrin 73a, the latter obligation mandates not only the rendering of personal assistance, as is the case with regard to the positive obligation applicable to restoration of lost property, but, by virtue of inclusion in the negative commandment, the obligation is expanded to encompass commitment of financial resources for the sake of preserving the life of a fellow man.⁵For sources elucidating the specific application of these obligations to medical intervention see this writer’s “The Obligation to Heal in the Judaic Tradition: A Comparative Analysis,” Jewish Bioethics (New York, 1981), ed. Fred Rosner and J. David Bleich, pp. 1–55; and J. David Bleich, Judaism and Healing (New York, 1981), pp. 1–10.

A latter-day authority, R. Yehudah Leib Zirelson, Teshuvot Azei ha-Levanon, no. 61, asserts that the obligations posited by the Gemara, Sanhedrin 73a, apply under nonlife-threatening circumstances no less than in life-threatening situations. The verse "And you shall restore it to him" (Deuteronomy 22:2) mandates not only the return of lost property but, a fortiori, preservation of life as well. The verse, then, does not refer only to the return of objects of material value. Accordingly, declares Azei ha-Levanon, restoration of health to a person suffering from an illness is assuredly included in the commandment, "And you shall restore it to him."

Nontherapeutic life-saving intervention is talmudically mandated on independent grounds. The Talmud, Sanhedrin 73a, posits an obligation to rescue a neighbor from danger, such as drowning or being mauled by an animal. This obligation is predicated upon the scriptural exhortation with regard to the restoration of lost property, "And you shall return it to him" (Deut. 22:2). On the basis of a pleonasm in the Hebrew text, the Talmud declares that this verse includes an obligation to restore a fellow man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Noteworthy is the fact that Maimonides,²Commentary on the Mishnah, Nedarim 4:4. Cf. Mishneh Torah, Hilkhot Nedarim 6:8. going beyond the examples supplied by the Talmud, posits this source as the basis of the obligation to render medical care. Maimonides declares that the biblical commandment "And you shall return it to him" establishes an obligation requiring the physician to render professional services in life-threatening situations. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property. Maimonides views this as a binding religious obligation.

Noteworthy is not only Maimonides' extension of this concept to cover medical matters but also his failure to allude at all to the verse "and he shall cause him to be thoroughly healed." It would appear that Maimonides is of the opinion that without the granting of specific permission one would not be permitted to tamper with physiological processes; obligations derived from Deuteronomy 22:2 would he limited to the prevention of accident or assault by man or beast. The dispensation to intervene in the natural order is derived from Exodus 21:20; but once such license is given, medical therapy is not simply elective but acquires the status of a positive obligation.³Cf. R. Baruch ha-Levi Epstein, Torah Temimah, Exod. 21:19 and Deut. 22:2. Cf., also, R. Abraham Danzig, Ḥokhmat Adam, 141:25. As indicated by Sanhedrin 73a, this obligation mandates not only the rendering of personal assistance, as is the case with regard to the restoration of lost property, but, by virtue of the negative commandment, "You shall not stand idly by the blood of your neighbor" (Lev. 19:16), the obligation is expanded to encompass expenditure of financial resources for the sake of preserving life of one's fellow man. This seems to have been the interpretation given to Maimonides' comments by R. Joseph Karo, who, in his code of Jewish law, combined both concepts in stating: "The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if the physician withholds his service it is considered as shedding blood."⁴Yoreh De‘ah 36:1. See R. Eliezer Waldenberg, Ramat Raḥel, no. 21, and idem, Ẓiẓ Eli‘ezer, X, no. 25, chap. 7.

Even if the earlier-cited authorities are correct in assuming that the prohibition "Nor shall you stand idly by the blood of your fellow" is limited to situations in which intervention is mandated by "and you shall restore it to him" (Deuteronomy 22:2) and does not establish an entirely independent obligation, the conclusion reached by those authorities is not compelled. A person's life, unlike his property, does not belong to himself but to the Creator.⁵See Rambam Hilkhot Roẓeaḥ 1:4; Radvaz, Hilkhot Sanhedrin 18:6; Shulḥan Arukh ha-Rav, V, Hilkhot Nizkei Guf va-Nefesh, sec. 4; and R. Shlomoh Yosef Zevin, Le-Or ha-Halakhah (Tel Aviv, 5717), pp. 222f. Cf., R. Shiloh Rafael, Torah she-be-al Peh, XXXIII (5752), 74-81, reprinted in idem, Mishkan Shiloh (Jerusalem, 5756), pp. 212-221. Accordingly, argues R. Yo'av Yehoshu'a Weingarten of Kintzk (Konskie), in a responsum included in R. Issachar Berish Graubert's Teshuvot Divrei Yissakhar, no. 168, the obligation to preserve life is not a duty owed to the potential victim but to the Deity and that duty is shared equally by the rescuer and the person rescued.⁶Indeed, Tur Shulḥan Arukh, Ḥoshen Mishpat 261, maintains that willfully abandoned property or property that a person attempts to destroy becomes res nullius. However, Rambam, Hilkhot Gezelah ve-Avedah 11:11, maintains that an attempt to destroy one’s property does not render it res nullius but that, nevertheless, there is no obligation to preserve such property. R. Yo’av Yeshoshu’a Weingarten’s line of reasoning is cogent according to both positions. See Rabbi Eliashiv, Sefer ha-Zikaron, p. 404. In a responsum of which the earlier-cited authorities were apparently unaware, R. Meir of Rothenberg, Teshuvot Maharam ben Barukh (Prague, 5368), no. 39, rules unequivocally that an individual must be rescued from potential death even if he protests and vehemently demands that there be no intervention. A similar rebuttal is offered by R. Meir Dan Plocki, Klei Hemdah, Parashat Ki Teze, sec. 6.⁷See also R. Chaim Joseph David Azulai, Birkei Yosef, Oraḥ Ḥayyim, 301:6, who rules that Sabbath restrictions are suspended for purposes of saving the life of a would-be suicide. Similar rulings are recorded in Teshuvot Maharil Diskin, Kuntres Aḥaron, no. 5, sec. 34, as well as in Iggerot Mosheh, Yoreh De’ah, II, no. 174, anaf 3 and Yoreh De’ah, III, no. 90.

Other authorities require that medical treatment be provided and circumcision delayed for entirely different reasons. R. Yehudah Leib Zirelson, Teshuvot Azei ha-Levanon, no. 61, argues that correcting the orthopedic problem in order that the child may have use of the limb constitutes the fulfillment of a positive commandment. Sanhedrin 73a declares that the verse "and you shall return it to him" (Deut. 22:2) mandates not only the return of lost property but, a fortiori, preservation of life as well. Azei ha-Levanon cogently argues that restoration of use of a limb similarly constitutes fulfillment of this mizvah. Citing Ritva, Sukkah 25a,²⁴A similar, but not identical, question arises with regard to whether it is permissible to delay fulfillment of a miẓvah in order to perform it in a more optimal manner. Terumat ha-Deshen, no. 35, analyzes this question in the context of delaying kiddush levanah until the conclusion of Shabbat in order to pronounce the blessing while attired in Sabbath garments; see Shulḥan Arukh, Oraḥ Ḥayyim 426:2. Teshuvot Shevut Ya‘akov, I, no. 34, discusses the same question in the context of whether one should perform the miẓvah of arba minim at the earliest possible hour or should postpone its fulfillment until a more beautiful etrog is available. Cf., also the comments of Magen Avraham, Oraḥ Ḥayyim 25:2, in explanation of the ruling of Rema that one need not delay the donning of phylacteries until a tallit is also available. Sefer Ḥasidim (Berlin, 5651), no. 454, implies that an individual may delay prayer in order to pray with a minyan provided that there is no danger that in so doing he will delay beyond the appointed time for prayer. See also Teshuvot Yad Eliyahu, no. 42, and Magen Avraham, Oraḥ Ḥayyim 90:15. he further argues that it is permissible to undertake the performance of a mizvah even if, as a result, it may be impossible to fulfill an even greater mizvah at a subsequent time.²⁵See also Teshuvot Radbaz, IV, no. 1087; Cf., however, Teshuvot Ḥakam Ẓevi, no. 106; Teshuvot Tirosh ve-Yiẓhar, no. 127; Ḥokhmat Adam 68:1 and Nishmat Adam, ad locum; and R. Israel Meir ha-Kohen, (Ḥafeẓ Ḥayyim), Maḥaneh Yisra’el, ma’amarim, chap. 15. The situation addressed by Radbaz involved an incarcerated person granted freedom for one day of his choice each year. The question presented was whether he should avail himself of this privilege at the earliest opportunity in order to engage in communal prayer or whether he should delay exercising his prerogative until a time of particular significance such as Purim or the Day of Atonement. Radbaz ruled that the prisoner should not postpone the opportunity for performing a miẓvah even though delay would afford him the opportunity of performing a miẓvah of greater significance; see also Sefer Ḥasidim, no. 874. However, Ḥokhmat Adam and Ḥafeẓ Ḥayyim adopt the opposite position and rule that a soldier given the option of leave on a weekday or on Saturday should choose Saturday, provided that such choice does not involve excessive delay, in order that he may be able to pray on the Sabbath in the proper manner. This ruling applies even in situations in which the soldier’s duties do not involve violation of Sabbath laws and is based entirely upon the consideration that the prayer on the Sabbath constitutes a miẓvah of greater sanctity than prayer on a weekday. Thus this ruling reflects the position that a miẓvah of lesser sanctity may be left unfulfilled in order to fulfill a miẓvah of enhanced sanctity at a later time. Accordingly, he rules that it is permissible to apply the cast, even if circumcision is delayed thereby, because correction of the orthopedic condition itself constitutes the fulfillment of a mizvah.

Under Jewish law the treatment of a patient is not merely a matter of private contract but constitutes a religious obligation. Refusal to treat a patient in need of medical assistance is a clear violation of Jewish law. Shulḥan Arukh, Yoreh De'ah 336:1, declares, "If the physician withholds his services it is considered as shedding blood." The obligation to render assistance in life-threatening situations is predicated upon the verse, "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). A further obligation is predicated upon the scriptual exhortation with regard to restoration of lost property, "and you shall restore it to him" (Deuteronomy 22:2). On the basis of a pleonasm in the Hebrew text, the Gemara declares that this verse includes an obligation to restore a fellow man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property.