An ancient dispute

Most ethical guidelines relating to triage, as we have seen above, are utilitarian in nature and heavily emphasise the principle of maximising total benefits. The question remains whether Halakha (Jewish law) accepts this approach as well.

In determining Jewish ethics regarding triage, Orthodox Jews look to the Talmud for guidance. The issue of allocation of scarce resources was addressed thousands of years ago in this book of Jewish law.

The Talmud in Baba Mezia (62a) relates:

Two people were traveling on the road and one of them has a bottle of water. If both drink, they will both die; if one drinks he will arrive at the town. Ben Petura expounded; it is better that they both drink and die and one of them not witness the death of his fellow traveler. Until Rabbi Akiva came and taught ‘and your brother shall live with you’.9 Your life takes precedence over the life of your brother.

Sokol explains that the basis of the argument between Ben Petura and Rabbi Akiva is whether one takes a deontological or consequential approach to ethics. Deontologists maintain that:

Actions are in themselves moral ends: that certain features of the action itself make it right or wrong… that an action has good consequences for society, or generally maximizes life, is far less important—according to some views, not inherently important at all—than the moral properties of the action itself.10

It follows in the case of the two travellers that it is not relevant if both will die if they share the water; from a moral perspective the question is simply to determine what the right thing to do is now, which is to share the water equally.

Consequentialists, on the other hand, think this approach is foolish. They maintain that:

The moral rightness or wrongness of an action is determined exclusively by its consequences that is, by the nonmoral good or evil it produces… to put it differently, actions are not moral ends in themselves; they are only means to produce some moral (or immoral end). Actions that increase happiness or maximize life are defined as moral. In the case of the two travelers the water should be given to one traveler because by doing so one maximizes life.10

Normative Jewish law follows the utilitarian position of Rabbi Akiva. There are a myriad of explanations of what the precise point on which Ben Petura and Rabbi Akiva disagree on is. Rabbi Avraham Karelitz11 a leading Israeli Jewish law decider of the last century, interprets the dispute as revolving around the question of whether saving two lives for a short time is preferable to saving one life for an extended period of time.

Rabbi Moshe Feinstein, the pre-eminent Jewish decider of 20th century, writes regarding triage: in my opinion if both arrive at the same time [to the hospital], the decision should be made on the basis of medical suitability. The one who has the best chance of being treated and cured should be given the available bed.12

Another important modern decider, Rabbi Shlomo Zalman Auerbach writes ‘that one should primarily take into account the degree of danger and chance for cure’13 in making triage decisions. This is in fact how many physicians make their triage decisions, they look at the balance between the acuteness of the patient and the reversibility of the disease to decide who should receive scarce resources.

Rav Eliezer Waldenberg, another modern decider, maintains that one can even hold in abeyance life-saving equipment from a patient not expected to live in anticipation of the arrival of a patient with a better prognosis.14 These approaches are all consistent with a utilitarian approach to triage based on maximising potential life-saving. However, they all agree that once you have initiated treatment with life-saving equipment you cannot remove it to treat another patient.

Modern applications

Regarding the case of the two travellers discussed above, Rabbi Karelitz maintains if there is a third person who has one bottle of water that can only save one person, according to Rabbi Akiva, he should give it to who he wants, a position that Rabbi Waldenberg agrees with. It appears that the Halakha gives much leeway to the rescuers in deciding who to save. It is not too much of an intellectual leap to say that in this halakhic void, it is society that should decide as opposed to the individual rescuer and thus the decisions of a national ethics committee are in line with halakhic thinking.

Rabbi Emanuel Rackman takes a different approach to the question. He is of the opinion that:

When one must choose between two persons, who will live and who will die, the decision must be that of the person who will act upon it and not that of the state or any of its duly authorized agents… the rich legal literature of Judaism provides him with no imperatives. No court will authorize his action in advance and no functionary of the state will or should be his surrogate to decide for him. The only sanction he may suffer will come from his conscience and public opinion. His problem is exclusively ethical and not legal in character.15

Before national guidelines were written, this was traditionally how physicians operated, using their best personal judgements. We are uncertain if this approach is applicable in times of a pandemic, when the healthcare system is in a state of crisis and triage becomes a daily tragic dilemma.

Rabbi Feinstein, as opposed to the deciders above, maintains that if two patients arrive simultaneously, doctors do not have the discretion to choose who should live, because we have no ability to decide whose life is more worthy of being saved, instead one should use a lottery or a first come first system. This is based on the Talmudic principle of (Sanhedrin 74) ‘what makes you think that your blood is redder than the blood of a fellow human being?’ This principle is very broad in Rabbi Feinstein’s thinking and applies to the cognitively impaired and even to those in a coma. In his own words ‘one must heal or save every individual without any differentiation based upon his intelligence or physical stamina and this applies to triage as well.’16 The former Chief of Rabbi of Israel, Rabbi Isaac Herzog once asked Rabbi Feinstein who should receive the limited amount of penicillin available in Israel at the time, and Rabbi Feinstein answered that it should be given to the first patient the physician saw who needed the medication16 or use a lottery. The distinguished Protestant theologian and ethicist Paul Ramsey also agrees with this approach. Freund writes ‘the preference for random selection is not the merit or need or value of the victim but equality of worth as a human being. The governing principle, it might be said, is that man shall not play God with human lives.’17 Ramsey continues, ‘When the ultimate of life is the value at stake, and when not all lives can be saved, it can reasonably be argued that men should stand aside as far as possible from the choice of who shall live and who shall die… random selection is preferable not simply because life is a value incommensurate with all other, and so not negotiable by bartering one man’s worth against another’s. It is sustained also because we have no way of knowing how really and truly to estimate a man’s social worth.’18

Rabbi Auerbach also limits the ability of the rescuers to make these hard choices and forbids using age as a determinant in triage decisions. Rabbi Walter Wurtzberger disagrees and maintains that:

As in lifeboat ethics some rational system of priorities should be devised rather than resorting to random selections of patients. As painful as it may be to play God and determine who shall live as a result of our intervention and who shall die as the consequence of our nonintervention, we cannot abdicate this responsibility. Random choice can hardly qualify as a more humane method to resolve our dilemmas.20

He goes further and suggests that social worth should play a role in the decision a position vigorously opposed by Rabbi Feinstein and Professor Ramsey.