I'm Jon Spira-Savett, rabbi at Temple Beth Abraham in Nashua, New Hampshire. This website and blog is a resource for Jewish learning and Jewish action. It is a way to share my thoughts beyond my classes and weekly Divrei Torah. You'll find blog posts, standing resource pages with links and things to read, and podcasts as well.
I'd like to be using my blog more to model and invite some ethical deliberation more of the time. This is something I dashed off to post on Facebook the other night. Particular references are to my locale of Nashua, NH, but it's relevant for elsewhere.
Wondering about the curfew debate. This isn’t an argument in favor of COVID-related curfews, but a wondering about policymaking in an situation that regular law doesn’t contemplate and where emergency regulations raise cultural and philosophical red flags.
The rationale being offered for curfews is that existing mandates and recommendations are not being followed to a degree that is controlling the spread of COVID-19. It’s not that the curfew is itself a safety measure; the virus is just as contagious before mid-evening as after.
So could it be that the curfew proposal is actually an attempt to create an enforcement regime that is less invasive than what it would take to zero in on the riskiest behavior? Rather than sending inspectors into restaurants and bars, for instance, to go table by table and cite people who are not respecting masks/distance etc., it could be less intrusive simply to limit people upstream from coming into a possible place of spread. This would in a certain way be less of an imposition on individual liberty than the alternative. Is this the actual rationale?
One problem with the initial policymaking around masks was a lack of transparency around officials’ reasoning. We heard the endpoint of their reasoning at two points. First, they knew we needed to keep enough masks for health care workers, so they told the rest of us not to hoard masks. Even though they knew that masks would be effective in the community as well, the initial priority was in hospitals. Part of how they got supply more focused to health settings was by discouraging the rest of us from taking all the masks, downplaying their importance to us. Second, after the mask supply expanded – before manufacturing ramped up, when people were engaged in home production – then what we heard was masks are effective and actually critical. It wasn’t the whole story in either part 1 or in part 2. We weren’t trusted with the nuance or given the chance to show some solidarity or think about sacrificing for others. Maybe that mistrust of the public was warranted even, but there were consequences in terms of credibility down the road that we’re seeing now.
So I’d love to know if my hypothesis is correct about curfews. If the real issue is how to choose between different unpleasant schemes of control, and an acknowledgement of different degrees of invasiveness, then why not challenge us as a community to interact with that dilemma by making it explicit?
To me, this makes more sense than concluding that curfews etc. are a power grab by political or other officials.
The most recent posted minutes of my local Board of Health suggest that my hypothesis is partly correct, at least in terms of what was actually said by participants. I’m wondering if there was more, either unstated or just not reported. I understand that those in authority right now are responsible around what may be a terrible tradeoff between time and lives. Again this isn’t an argument for or against curfews, but a question of how to do public ethical engagement, or at least how to explain soon after decisions are made and announced what all the ethical considerations actually have been.
Last weekend the tragedy of the Munoz family in Texas came to an end. Marlise was a woman, a wife and mother, who was pregnant when she collapsed at home last November 28 and was taken to the hospital. She was declared dead at the hospital on the basis of a standard known as “brain death.”
The situation was complicated by the fact that in Texas, there is a law that “life-sustaining treatment” may not be withheld from a pregnant woman, out of concern for the unborn fetus. And in fact, Marlise Munoz's situation is the most dramatic illustration of a fact of modern medicine: that once a person is declared dead, it may be possible through a mechanical respirator to keep the body in a state that allows organs to continue functioning so that they may be harvested for transplant.
What do we call a body in that situation, with blood and oxygen moving through a body – alive or dead? How far does the imperative of preserving life, such as through the donation of organs, extend?
This a gray area in the law – both American law and Jewish law – as well as in the experience of medical professionals. It is a gray area too for people whose loved one has died, and it is a philosophical question about whether death is in fact a moment in time.
Here are few thoughts, from the perspective particularly of halacha (Jewish law). These are musings, not edited or polished. I write them too with the awareness that first and foremost this is a family tragedy, for Marlise Munoz's husband and small child.
Is brain death the same as death? Rabbi Daniel Nevins wrote a comprehensive paper for the Committee on Jewish Law and Standards of the Conservative movement. He reviewed both traditional Jewish legal definitions of death, and contemporary medical understandings of death. His conclusion is that death is defined in Judaism not as cardiac arrest, but as the irreversible cessation of spontaneous breathing. Part of the clinical determination of brain death includes this test, and thus a person who is declared brain dead is considered to have died under halacha.
How should we treat the dead body when its organs can be “harvested” for donation? The word “harvested” is a terrible word, obviously. It seems to be the term of art.
Most of the Jewish world has come around to the idea that organ donation is an example of pikuach nefesh, the preservation of life. It is not only permitted, but encouraged, for people whose organs could save another person's life to donate them. (Why is it not, therefore, required?) In much of the Orthodox world, and in Israel, organ donation is understood to be the saving of life.
In hospitals, there are or should be policies to prevent staff from hastening the death of a person who is about to die, for the sake of the condition of the organs or if the recipient is deteriorating, or for that matter if the staff would just like to go home sooner. There should ideally be protocols that separate the staff who care for the dying person from the staff that come to prepare the organs for transplantation.
There is an emotional dimension for the survivors, who know that a loved one has died, and yet who know or even see that the person is being treated in the same way he or she would if still alive but in a coma. How do you begin to mourn someone who has died, but look as though being kept alive?
To my knowledge, no one has tried to codify how long a body can be kept in a state that perfuses the organs without violating the halacha of k'vod ha-met, respecting the body of the dead. Jews view the dead body as still sacred, and deserving of a prompt and respectful burial, before the body deteriorates. In the typical case of organ donation, burial is not delayed for weeks, or even for days. Where is the soul in relation to this body?
Is preserving the fetus equivalent to preserving organs for donation? This is the unique question of the Munoz case, which I imagine will become a classic case for us to reflect on and study for this reason. If the fetus is an actual person, on the border between life and death, then its life would surely weigh heavily.
In Jewish law, the fetus does not have the same status as a living person. We know this from the Mishnah's case of a woman in labor whose life is in danger because of the delivery. Before the head emerges and the baby can breathe, the fetus can be dismembered to save the mother; once the baby's head is out, the baby must be protected.
At the same time, halacha does not say that abortion is permitted right up to birth without restriction, and Jewish law has no clear statement about how to regard a fetus, given that it has a body and a heartbeat and is on its way to being born as a person.
Someone might argue that since Marlise Munoz was, so to speak, not in danger by being kept on the respirator, the Mishnah does not speak to this case. Unless the birth is causing danger right now, the fetus should be sustained.
I cannot see that we would maintain a dead body artificially for weeks as an incubator for a fetus, even if Erick Munoz had consented. It would be a terrible burden on him, on the medical staff, on the hospital even to have to make this decision.
Maybe I am influenced more by science fiction movies than by reasoned arguments, because I am placing a value of k'vod ha-met above pikuach nefesh, the dignity of the dead body over the preservation of life. Rabbi Michael Broyde, an Orthodox rabbi on the faculty at Emory University Law School, argues that Judaism encourages us to “play God”, in his words. But even so, I think keeping Marlise Munoz on a respirator for weeks after she was declared brain dead was far beyond playing God for good reason.
Had she been not declared dead but was likely to die, I could see her pregnancy being a factor in deciding whether or not to let her go sooner. But in fact, she was dead. We have no prerogative to override death in this way. Dead bodies are not available for us to use (but...what about cadavers for medical training?). Had I been on the ethics committee at John Peter Smith Hospital, what would I have said to keeping her body on the respirator for just one extra day, just as might be done in order to donate her organs? As I wrote above, how long is a gray area, but there would have been no point in just another day. What if the fetus had been closer to viability?
So these are difficult questions. They test the meanings of k'vod ha-met and pikuach nefesh, and they test our kishkes, our gut reactions. My prayers are with the Munoz family. Perhaps they will derive some comfort, eventually, from knowing that Marlise's life and her death will help teach us to think about these difficult and important ethical and spiritual questions.
Please feel free to submit your thoughts and questions in the comments area.
I recently heard a radio program about Stephen Hawking's new book, The Grand Design.Written together with physicist Leonard Mlodinow, the book accounts for why things in our universe are so beautiful ordered. Why the laws and conditions of our universe are suited for the development of life and human life. Everything can be explained by the current state of theory in physics, without any recourse to a divine creator. Though, the authors hasten to add, nothing in their theory refutes the idea that there might be a God.
I listened, but to tell you the truth, I yawned.
My own faith has nothing to do with whether the universe is expanding or contracting, whether there is life on other planets, whether the four basic forces in physics can be unified, whether quantum physics and general relativity can be integrated. Or, for that matter, whether the six days of Creation in Genesis represent six metaphorical epochs, whether the "great sea monsters" of Genesis actually refer to swimming dinosaurs or ancient reptiles whose fossil remains have been discovered.
And each time a new observation arrives from Hubble, or a new bit of data emerges from a supercollider, I don't have to adjust spiritually.
I just don't think that the Torah is in any kind of quarrel with the physicists about the origins of the universe. All the medieval Jewish commentators said, in one way or another, that the opening of the Torah is general, that it clothes deeper mysteries, that it is not a literal history. To me the opening chapter is poetry and geometry, with its placid and unemotional description of the architecture of heaven and earth. Then comes poetry and drama, as the humans spring into action and immediately change everything!
I do listen to the programs about physics and the origin of the universe. I do think the discoveries that come from the atom are profound. They are triumphs of the mind. They lead to applications that, we pray, are useful for the good of humanity. So I endorse the quest.
And I'm intrigued by comparisons between the Big Bang and the kabbalistic view of the universe emerging from a point of nothingness (Ayin). Intrigued, but if the parallels weren't there I wouldn't lose any sleep. The new book by Stephen Hawking, or new discoveries or theories, don't alter my foundation.
I experience Creator through the lens of this line in the morning service, right after Barchu: Ham'chadesh b'tuvo b'chol yom tamid maaseh breishit. We speak of "the One Who renews out of goodness, every single day, always, the making of the beginning." More fascinating to me than the Big Bang is: today. We wake up, and the whole universe is here! More mysterious than the atom are life, and awareness.
Science can describe them, model them, but the experience of them is beyond those descriptions. The pulse of existence, awareness, aliveness, consciousness -- these are Creation. The poetry of Genesis doesn't explain them, but it connects them. The goodness we attribute to God: that is the spiritual Big Bang, the first fact of our universe and each new day.
From Yom Kippur, when we put aside our material existence by fasting and spending so many hours in prayer, we move to Sukkot. Sukkot is by contrast a very earthy, material holiday. The Sukkah booth itself, obviously, and the plant material that makes up its roof. The Arba'ah Minim, Four Species as well -- the lulav (palm), the etrog (citron), the hadasim (myrtles), and the aravot (willows).
According to the Mishnah, Sukkot is one of the four Jewish New Year occasions, when "we are judged concerning water." So many of the rituals of Sukkot involve water or praying for the winter rains (think about what it sounds like when you shake the Four Species together). Here is an explanation that builds on work done by Nogah Hareuveni, who founded Neot Kedumim, a nature preserve in Israel dedicated to biblical landscape and agriculture. (I think the interpretation is hers, but since I can't find it written exactly this way I'll take responsibility if it differs.)
Dr. Hareuveni notes that the four species represent the four different ways that plants can be watered. The palm is a tree of the desert oasis; it draws from deepest groundwater. The willows grow by a river, water constantly flowing on the ground. The myrtles require rain -- dew or the periodic floods that go through a dry stream-bed (known as nachal in Hebrew or wadi in Arabic). The citron is a cultivated fruit, requiring irrigation -- humans gathering and bringing water.
To the pagans living around our ancestors, each source of water came from a different source and could be traced to a different god. The Canaanites actually used the same word, baal, to refer to the "master" of their pantheon of gods, and to the condensation of rainwater on plants. In some texts, the waters of the deep are referred to as Mot, the god of death. These are the deep waters in our Genesis stories that originally covered everything and had to be held back to allow the ground to be emerged, or that God released for Noah's flood.
But the Israelites came to understand that the four waters were one, and had only one Source. So they bound the four disparate species together into one bundle, to symbolize the oneness of our God. The Four Species are waved in all directions, indicating an understanding that the one Source of waters and life is present everywhere.
Water remains a basic need, even in our technological society. It has been a persistent metaphor in our tradition for God and for Torah. Water continues to be one of the most important matters of environmental scarcity on our planet today, and it continues to be in the center of the Israel-Palestine conflict.
If you are around Nashua, I'll be teaching more about Sukkot and water this Shabbat/Yom Tov morning in shul at Temple Beth Abraham. Hag Sameach!