The "Halachic Health Care
Proxy"
Chaim Dovid Zwiebel

The "Halachic Health Care Proxy"
An Insurance Policy With Unique Benefits

by Chaim Dovid Zwiebel

(NOTE: This article appears in "The Ethical Imperative" (Artscroll, Mesorah Publications) and is reprinted herein with permission from the copyright holder.)

Shortly before the summer, the highest policy making body within Agudath Israel of America, the Moetzes Gedolei HaTorah (Council of Torah Sages), arrived at a historic decision: Agudath Israel should develop and then initiate a major national campaign to encourage people to sign a “halachic health care proxy” -- a standardized form designed to help ensure that all medical and post-death decisions made by others on an observant Jew’s behalf would be made pursuant to halachah.

In this article, we will address three basic questions:

I. Why the need for a “halachic health care proxy”?

II. What are the legal considerations that underlie such a document?

III. What are the specific components of the standardized form developed by Agudath Israel, and how can individual Jews avail themselves of its protections?

I. The Need for a
“Halachic Health Care Proxy”

• Nancy Cruzan and the
  Legacy of Modern Medical Technology

The Orwellian-sounding phrase “right to die” became firmly entrenched in the American lexicon in 1990 when the U.S. Supreme Court issued its ruling in the celebrated case of Nancy Beth Cruzan.

The facts of the case were undeniably tragic. Ms. Cruzan was in an automobile accident some seven-and-a half years ago. Since that time, she has been lying in a Missouri hospital in a “persistent vegetative state,” having lost her upper brain function, legally alive but permanently unconscious. However, Ms. Cruzan is not terminally ill; she could continue to live for many years in her vegetative state so long as she receives adequate nutrition and hydration. Ms. Cruzan’s parents asserted that their daughter would never wish to be maintained in such a state, and they asked the court to compel the hospital to “pull the plug” on Ms. Cruzan’s feeding tubes. By a vote of 5-4, however, the Supreme Court denied the parents’ request, and upheld the State of Missouri’s right to continue providing life-sustaining nutrition and hydration to Ms. Cruzan.^[1]

Cruzan may have been the first case of its kind to reach the U.S. Supreme Court, but it is illustrative of the types of agonizing issues that arise so frequently in this era of rapid advances in medical technology. Those advances have enabled doctors to preserve and prolong many lives. At the same time, they have created a painful question that confronts countless individuals and their families: Are there any limits to the resources and efforts that should be devoted to the maintenance of a person whose quality of life is severely diminished, whose chances of recovery are slim or virtually nil, whose continued maintenance is exacting a severe economic and emotional cost? Where, if anywhere, is the line to be drawn?

The question is one that is faced not only by growing numbers of individuals and families, but also by society as a whole as it struggles to develop public policy in an area of extreme moral complexity.

Some in the “pro-life” community advocate an uncompromising public commitment to the preservation of human life under virtually all circumstances, no matter what the costs, no matter what the medical prognosis, no matter what the wishes of the family or even the individual patient. A growing number of others, in contrast, advocate the “right to die with dignity” -- a policy that would allow patients and their families to decide, at least at some point, that the patient’s quality of life was so severely diminished as to justify the withholding or termination of medical life-support.

Although most proponents of the “right to die” position would hasten to disavow any support of suicide or of “euthanasia” (mercy killing), those concepts are inevitable outgrowths of the “right to die” philosophy and are already beginning to emerge from the shadows of the “death with dignity” movement. Laws have been proposed in a number of jurisdictions that would authorize physicians to assist patients who wish to commit suicide. One senses that stories like the one recently reported about Dr. Jack Kevorkian, a pro-euthanasia physician who had supplied a woman suffering from Alzheimer’s Disease with a “do-it-yourself” suicide kit, which she promptly used to take her life, will soon fail even to raise eyebrows among most people.

For yet others, dying is more than merely a matter of right; it rises to the level of an obligation. In 1984, for example, Colorado Governor Richard Lamm told a group of attorneys that terminally ill seniors have “a duty to die and get out of the way with all of our machines and artificial hearts and everything else like that and let the other society, our kids, build a reasonable life.” This attitude is reflected in health care rationing plans like the one recently developed in Oregon, which would deny Medicaid patients the right to receive certain types of medical services that are not deemed “cost-effective.” Thus, in determining whether any given life-sustaining measure makes medical sense, the key consideration is rapidly turning into one of dollars and cents.

With these developments taking place all around us, what is to be the attitude of the Torah community?

• The Primacy of Halachah

Halachah, the law of Torah, encompasses every facet of human life. It also encompasses every facet of human death. There are halachos that teach us how a person’s remains are to be buried; under what circumstances, if any, a decedent’s body may be autopsied or dissected; whether it is permissible, or perhaps even a mitzvah, to donate body organs for purposes of transplantation into needy others.

So too does halachah govern the many issues that may arise in near-death situations: the types of medical circumstances, if any, that may justify the withholding or termination of various forms of medical care; the permissibility, or non-permissibility, of undergoing experimental treatment that could shorten life if it does not cure the disease; the extent, if any, to which an individual’s personal preferences with respect to medical care are relevant halachic considerations in determining the course of his treatment; the special laws that apply when a person reaches the stage of gesisah (in the throes of death), as well as the means by which gesisah is determined; the criteria by which to determine a person’s death.

Obviously, to state the self-evident axiom that halachah provides answers to all of these questions is by no means to state that there is always definitive halachic consensus as to what those answers are. Indeed, with respect to certain especially complex matters, the rabbinic responsa and other halachic literature reveal a considerable disparity among a number of contemporary poskim (halachic decisors). Moreover, the enormous technological and physiological complexity involved in many of these she’eilos (questions of Jewish law), as well as the high stakes, may result in a reluctance on the part of certain rabbanim to render halachic rulings in specific cases.

For the believing Jew, though, the bottom line is that the resolution of such issues must come through the halachic system, not through personal predilection as molded by contemporary culture. There are inevitably bound to be disparities between halachah and the mores of the time; the underlying philosophies are in fundamental conflict. As Rabbi J. David Bleich has written:

Man does not possess absolute title to his life or his body. He is charged with preserving, dignifying and hallowing that life. He is obliged to seek food and sustenance in order to safeguard the life he has been granted; when falling victim to illness or disease he is obliged to seek a cure in order to sustain life. The category of pikuach nefesh (preservation of life) extends to human life of every description and classification including the feeble-minded, the mentally deranged and yes, even a person in a so-called vegetative state. Shabbos laws and the like are suspended on behalf of such persons even though there maybe no chance for them ever to serve either G–d or fellow man. The mitzvah of saving a life is neither enhanced nor diminished by virtue of the quality of the life preserved.”^[2]

Thus, “death with dignity,” the rallying cry of the modern day euthanasia movement, clearly does not find its roots in the law or values of Torah. Elderly persons who speak of their desire to die rather than become a financial or emotional “burden on the children” may have the most noble of intentions, but nobility of intention is not the yardstick by which Jews measure conformity with Hashem’s will. Those who champion only the quality of human life as the overriding value in health care decisions disregard the longstanding Jewish emphasis on the sanctity of human life, even in its most diminished qualitative form.

In sum, the complexity of the halachic issues, the diversity of views among rabbinic authorities with respect to certain she’eilos, the relative difficulty of finding rabbanim prepared to offer halachic guidance -- none of these considerations detracts from the fundamental fact that for the Jew, the framework of analysis and decision on these issues must be the halachah.

• Who Will Ask the Questions?
  Who Will Make the Decisions?

In ordinary circumstances, when a person has a she’eilah, he will pose it to the halachic authority whose guidance he personally accepts as binding -- the Rav of his shul, his rebbe, his rosh yeshivah, someone recognized as a halachic decisor for all of Klal Yisrael -- whomever. Yet that is obviously impossible with respect to the many medical and post-mortem issues that may arise when the person about whom the she’eilah is being asked is incapable of posing the question himself.

One would hope that the she’eilah under those circumstances would be posed by those who will be making decisions on the individual’s behalf -- in most cases, the members of his family -- and that it would be posed to the very same halachic authority to whom the individual himself would have turned were he capable of doing so.

But not always can it be so. Some people do not have family members with whom they retain contact or upon whom they can rely to contact their morei hora’ah (halachic decisors) in times of emergency. And, even for those who do, not always will the she’eilos arise under circumstances where those family members will be available to contact the individual’s halachic authority. When, for example, a person is involved in an accident far from home, emergency decisions will be made for him by doctors and nurses who may not even know that he is Jewish, let alone who his relatives are or who his rabbi is. The likelihood is all too great in such situations that medical procedures will be performed, or withheld, in ways that constitute a violation of halachah.

The problem arises even more frequently in the context of post-mortem procedures. Many horror stories have come to light involving autopsies, post-mortem procedures and non-halachic burials of Jewish decedents who have passed away under circumstances where nobody was available to ensure that halachah would be followed after the person’s death.

Hence the need for some form of protection -- a mechanism whereby one can obtain at least a measure of assurance that when he becomes incapable of making his own health care decisions, when he dies and is unable to direct the course of his own burial, when he becomes incapable of asking the she’eilos himself, that others will take the steps necessary to ensure that halachah will be followed. As detailed below, the “halachic health care proxy” is designed to respond to that need.

II. Legal Underpinnings

• The Doctrine of Personal Autonomy

The renowned American jurist Benjamin N. Cardozo established in 1914 the principle that continues to guide medical jurisprudence to this day: “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient’s consent commits an assault, for which he is liable in damages.”

This principle, which has come to be known as the “doctrine of personal autonomy,” has been applied in numerous contexts to allow a patient the right to dictate the course of his own medical care, including the right to choose among various treatment alternatives and even the right to decline life-sustaining measures. In the famous Karen Anne Quinlan case, the New Jersey Supreme Court held that an individual’s right to choose whether or not to receive treatment was of constitutional dimension, encompassed within the constitutional “right of privacy.” The U.S. Supreme Court came close to endorsing this view in Cruzan, stating that “a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment.”

That is not to say that the doctrine of personal autonomy is absolute. Some legal limitations do exist. Prohibitions against suicide or assisting others in committing suicide, for example, run contrary to the notion of unlimited personal autonomy; yet such prohibitions are recognized as legally valid. Indeed, the Supreme Court in Cruzan intimated that under certain circumstances, at least, a state may have the authority to override a patient’s constitutionally protected “liberty interest” and insist that the patient receive life-support even against his own wishes.^[3]

Limitations notwithstanding, it is fair to say that the clear trend in American law is to accord virtually unfettered deference to the wishes of the individual patient in matters of medical care. But what if the patient is not physically able or competent to express those wishes?

• Ascertaining the Patient’s Wishes

A patient’s inability to express his wishes with respect to health care decisions does not necessarily negate the doctrine of personal autonomy. The law typically imposes an obligation on those who will be dictating the course of an incompetent patient’s health care to do so in a manner that complies with what the patient would have wanted, were he able to express his own wishes. Stated simply, it ordinarily will be incumbent for third party medical decisionmakers to ask the question: “What would the patient have wanted us to do?”^[4]

Very often, though, it may not be possible to ascertain with any degree of certainty what the patient would have wanted. It is under those circumstances that there is a broad disparity of legal guidelines throughout the United States. Some states insist that all forms of life support must be provided to incompetent patients unless there is “clear and convincing evidence” that the patient would not have wanted such support. Others accept less definitive evidence as sufficient indication of the patient’s wishes. Yet others allow the withholding or withdrawal of life-sustaining measures from an incompetent patient even if there is absolutely no evidence of the patient’s wishes, so long as it is determined that the patient’s “best interests” would be served by allowing him to die.

These legal considerations have given rise to organized efforts to encourage competent persons to provide clear evidence of what their wishes would be with respect to medical decisions when they become incompetent. Two basic means of achieving this purpose have been developed: the “living will” and the “health care proxy.”

• The “Living Will”

A “living will” is a document prepared by a competent adult that provides specific instructions with respect to a number of medical procedures that may arise if that person becomes incompetent. For example, the “Society for the Right to Die,” an organization in the forefront of the “death with dignity” movement, encourages people to sign a form (which was reproduced in The New York Times two days after the Supreme Court issued its Cruzan decision) that includes the following:

“I direct my attending physician to withhold or withdraw treatment that serves only to prolong the process of my dying, if I should be in an incurable or irreversible mental or physical condition with no reasonable expectation of recovery.

“While I understand that I am not legally required to be specific about future treatments, if I am in the condition(s) described above, I feel especially strongly about the following forms of treatment:

“I do not want cardiac resuscitation.

“I do not want mechanical respiration.

“I do not want tube feeding.

“I do not want antibiotics.

“I do not want maximum pain relief.”

By the same token, obviously, a “living will” could specify the individual’s desire that those various medical procedures should be maintained in the event of the individual’s incompetence. The point of the document is simply to enable an individual to make his specific wishes known.

• The “Health Care Proxy”

The “health care proxy” takes a different approach to the issue. Rather than specify the types of medical procedures to be undertaken, or to be withheld, the proxy simply appoints someone to serve as the health care agent of the person signing the proxy form, empowered to make health care decisions on the person’s behalf if the person ever becomes incapable of making such decisions on his own. The health care proxy thus operates essentially as a power of attorney (and is indeed known in many jurisdictions as a “durable power of attorney”).

A number of states have enacted health care proxy laws, providing specific guidelines as to the formal requirements of the proxy, as well as the scope of the agent’s authority and other pertinent substantive issues. New York, in the final days of its 1990 legislative session, shortly after the Supreme Court’s Cruzan ruling, passed the “Health Care Agents and Proxies Act,” scheduled to go into effect in early 1991.^[5]

The two approaches outlined above -- the “living will” and the “health care proxy” -- are by no means mutually exclusive. One may, in the same document, accomplish both purposes: appoint an agent to make health care decisions when the individual cannot make such decisions on his own; and provide the agent with specific guidance as to the types of procedures that should or should not be undertaken.

As will now be seen, that dual approach is embodied in the “halachic health care proxy.”

III. The “Halachic Health Care Proxy”: Its Components and Mechanics

With the assistance of its Commission on Legislation and Civic Action, as well as a number of knowledgeable rabbanim, doctors and lawyers, Agudath Israel has developed a “halachic health care proxy” that is now available for broad distribution and use.^[6]

Actually, the “halachic health care proxy” consists of two separate standardized forms: (1) a legally binding, formal document, entitled “Proxy and Directive With Respect to Health Care Decisions and Post-Mortem Decisions,” which has been designed to conform to all the technical requirements of the recently enacted New York State health care proxy law; and (2) a short, credit card-sized form, entitled “Emergency Instructions,” which summarizes the key provisions of the first form and is designed to be carried in a person’s wallet or handbag. Both forms should be used in conjunction, as each serves a distinct purpose.

• The “Proxy and Directive”

As its title implies, the “Proxy and Directive” form accomplishes two essential functions.

First, it is a proxy: the appointment by a competent adult (the “principal”) of another person to serve as an agent to make health care decisions on the principal’s behalf if the principal becomes incapable of making such decisions on his own. Subject to certain statutory exceptions, the agent can be virtually any competent adult -- a family member, a friend, anybody the principal trusts to carry out his wishes. The principal can also appoint a second person to serve as an alternate agent if the original agent is not available or willing to make decisions. The agent’s authority commences only upon a medical determination of the principal’s lack of capacity to make health care decisions for himself.

Second, the form is a directive: an instruction by the principal to the agent to make all health care decisions, as well as post-mortem decisions, in accordance with halachah. In order to ensure that the agent will direct she’eilos to the rabbinic authority the principal himself would consult were he able to do so, the form includes a section allowing the principal to designate a specific rabbi to be consulted by the agent whenever a she’eilah arises. Or, if such rabbi is unavailable or unwilling to rule on a particular halachic issue, the form further allows the principal to designate an Orthodox Jewish organization or institution to be contacted for purposes of referring a competent rabbinical authority.

The “Proxy and Directive” form should be completed and signed by the principal. However, if the principal is physically incapable of signing the form, he may ask another adult to sign his (the principal’s) name on his behalf. In either event, the signing should be done in the presence of two witnesses, who in turn should sign their names to the document as well.

• The Wallet-Size
  “Emergency Instructions” Form

Copies of the “Proxy and Directive” should be kept among the principal’s important documents, and with a number of key people: the agent and alternate agent, members of the principal’s family, his doctor, his lawyer, his rabbi and whomever else may be called upon in cases of emergency. At the same time, however, an unforeseen emergency may arise far away from family and home, where the “Proxy and Directive” will be of no avail unless the principal happens to be carrying a copy with him -- hardly a likely happenstance in view of the sheer bulk of the document.

Hence the second “halachic health care proxy” form developed by Agudath Israel: a small, credit card-size form designed to fit in a person’s wallet or handbag. The text of the card makes reference to the fact that its bearer has executed a formal “Proxy and Directive.” It then proceeds to outline, in abridged form, the key provisions of the larger formal document; and provides the names, addresses and telephone numbers of the agent and rabbinical consultant designated by the principal.

It is questionable whether the wallet-size form, on its own, would be regarded as a legally binding document. Nonetheless, carrying it (on days when carrying is permitted!) is an effective means of ensuring that one’s wishes with respect to medical and post-mortem decisions will be known under virtually any eventuality that may arise. And, when used in conjunction with the more formal “Proxy and Directive” outlined above, it will provide considerable legal protection against the possibility of such decisions being made in violation of halachah.

• Inherent Limitations

There are some things the “halachic health care proxy” does not do. For one, it does not attempt to spell out precisely what types of procedures, under what types of circumstances, should or should not be undertaken as a matter of Jewish law. This omission reflects a conscious policy decision by the Moetzes Gedolei HaTorah. They concluded that the range of halachic issues was too great, the changes in medical technology too rapid, the she’eilos too dependent upon individual circumstances, to presume to identify in advance the precise course of action to be taken under all future hypothetical situations. Rather than engage in such a speculative and possibly misleading exercise, the Moetzes Gedolei HaTorah felt that the form should simply provide a mechanism that would ensure that she’eilos would be posed in whatever circumstances may eventually arise.

Yet another thing the forms do not purport to do is tell individuals which rabbis or organizations they should choose to serve as halachic consultants/decisors with respect to medical and post-mortem procedures. This, too, was a conscious decision of the Moetzes Gedolei HaTorah. As noted above, there is a diversity of viewpoints among contemporary poskim with respect to a number of the issues an agent may have to decide. The Moetzes decided that it was not the role of an umbrella organization like Agudath Israel to identify specific rabbanim, to the implicit exclusion of others, as “competent” authorities in the area of medical halachah -- especially in developing a form designed to be used by all communities and segments of Klal Yisrael.Rather, each individual should designate as a halachic consultant the particular moreh hora’ah whose guidance he himself would seek -- recognizing, of course, the specialized and highly complex nature of some of the she’eilos that may arise.

It should also be recognized that the “halachic health care proxy” is by no means the answer to every problem that may arise. Among its most obvious limitations is the fact that by law, only competent adults can sign such forms. Children, and adults who are not mentally competent, will not be able to avail themselves of its protections. Agudath Israel is currently pursuing with the New York State Department of Health the possibility of developing a variation of the basic form that would enable adults to protect their children and guardians to protect their incompetent wards against medical or post-mortem violations of halachah.

Another question that requires careful consideration, and consultation with competent halachic authority in individual cases, is whether encouraging gravely ill patients to sign such forms could itself constitute a violation of halachah by creating the possibility of tiruf hada’as -- emotional shock that could further jeopardize the individual’s fragile health. (See generally Shulchan Aruch, Yoreh Deah 337.) Obviously, the optimum time to encourage people to fill out and sign a “halachic health care proxy” is when they are in sound health and in full possession of their faculties, not after they have already entered a hospital or nursing home.

One final caveat: As noted above, the forms developed by Agudath Israel have been designed to conform with the specific formal requirements and other provisions of the New York State health care proxy law. Although the concept underlying the “halachic health care proxy” would likely be recognized as binding throughout the United States (and presumably in most other countries as well), other states may have certain particular requirements that might require minor modifications in the basic form. For example, whereas New York law provides that a proxy will remain in effect indefinitely unless specifically revoked by the principal, California law limits the effectiveness of its proxy (known in California as a “durable power of attorney”) to a seven-year period.

Agudath Israel is in the process of developing alternate “halachic health care proxy” forms for use in jurisdictions where the New York model may be inappropriate. Individuals who reside outside of New York may wish to consult with a local attorney to determine whether the New York model would be recognized in their jurisdiction; or they may wish to contact Agudath Israel for additional assistance.

• Conclusion

Life is a precious gift from Hashem. Generally speaking, man is not permitted to squander the gift no matter how difficult or even unbearable the circumstances of human existence may become. As believing Jews, we must cling firmly to these basic values even when the secular world all around us is abandoning them. A society that subscribes to the principle that each person is entitled to choose death -- the “right to die with dignity” -- is a society that fails to appreciate fully the sanctity of human life. Stated simply, the doctrine of unlimited personal autonomy in medical decision making is totally repugnant to the foundations of our faith.

Yet, in one of the ironic twists that is so common to our millennia-long experience in galus (exile), the very same doctrine of personal autonomy provides each individual Jew an opportunity to obtain protection that will allow him to serve Hashem even when he is totally devoid of consciousness, even when he is at the brink of death, even after he has returned his soul to his Maker. The “halachic health care proxy” is an insurance policy that costs no money to obtain, is available to all, and provides the types of benefits that no insurance company can ever offer.

[BACK]1. In so ruling, the Supreme Court reached the result urged by Agudath Israel of America in its amicus curiae (friend of the court) brief -- the only such brief submitted by a Jewish organization to the high court. The Court’s reasoning was essentially this: Even assuming that an individual would have a personal constitutional right to refuse lifesaving measures, states are free to insist that there be “clear and convincing evidence” that a comatose patient would in fact have refused life support before any outside party could make that decision on the patient’s behalf. Since there was no such “clear and convincing evidence” of Ms. Cruzan’s own wishes, her parents could not compel the State of Missouri to “pull the plug” and end her life.

[BACK]2. Bleich The Quinlan Case: A Jewish Perspective, reprinted in Rosner & Bleich, Jewish Bioethics, p. 270 (Heb. Publ. Co. 1979).

[BACK]3. For the record, it should be noted that Agudath Israel, in its amicus curiae brief to the Supreme Court and innumerous other contexts, has expressed its strong opposition to the notion of unlimited personal autonomy. For example, in testimony submitted to the New York State legislature earlier this year, Professor Aaron Twerskl (chairman of Agudath Israel’s Commission on Legislation and Civic Action) and I observed that the doctrine of personal autonomy under New York law would generally permit a person to refuse medical treatment even where the prognosis is that such treatment would lead to full recovery. We stated as follows: “Agudath Israel is troubled by the message this notion of unlimited personal autonomy delivers. It embodies a value judgment that society’s interest in the preservation of human life must bow before an individual’s decision that his life is no longer worth living. The implications of this message run directly counter to prohibitions against suicide and euthanasia that have long been accepted among civilized societies, and portend ominous changes in these social norms.”

[BACK]4. In addition to the general doctrine of personal autonomy that requires surrogate decisionmakers to attempt to ascertain what the patient would have wanted, a number of governmental bodies around the country have enacted statutes or regulations designed specifically to protect the religious rights of patients and decedents. In New York, for example, the state with the most comprehensive series of religious accommodation provisions (thanks to the efforts of organizations like Agudath Israel and COLPA, and of individual public officials like Assemblyman Sheldon Silver and Health Commissioner David Axelrod), the following protections have been explicitly written into the law:

[BACK]5. Agudath Israel opposed the New York health care proxy bill, objecting to the broad authority it accorded to agents to decide that patients should die. “Even though the bill is couched in terms of the agent making decisions in accordance with the principal’s wishes or best interests, Agudath Israel believes that the potential for abuse of that awesome decisionmaking authority is self-evident. If the social good of permitting people to designate trusted relatives or friends to make health care decisions on their behalf can be achieved only by granting such third parties an essentially unlimited right to decide that their principals should die, we think the price to pay is too high.”

[BACK]6. Copies may be obtained by contacting Agudath Israel of America, 84 William Street, New York, N.Y. 10038, (212) 797-9000.