Rabbi Michael Leo Samuel

Two Legendary Antecedents

Solomon’s wisdom is well-known. In 1 Kings 3:16-28, two new mothers approach Solomon, bringing with them one dead baby, and one live one. Each mother presents the same story and accusation: She and the other woman live together and have both recently given birth to two baby boys. One night, soon after the birth of their respective infants, the other woman woke to find that she had smothered her own baby in her sleep. In anguish and jealousy, she took her dead son and exchanged it with the other mother’s child. The following morning, the woman discovered the dead baby, and soon realized that it was not her own son, but was the other woman’s instead.

After some deliberation, King Solomon calls for a sword to be brought before him. He declares that there is only one fair solution: the live son must be split in two, each woman receiving half of the child. Upon hearing this terrible verdict, the boy’s true mother cries out, “Please, My Lord, give her the live child—do not kill him!” However, the envious mother exclaims, “It shall be neither mine nor yours—divide it!” The identity of the real mother was obvious. Solomon instantly gives the live baby to the real mother, realizing that the true mother’s instincts were to protect her child, while the liar revealed that she did not truly love the child.[1]

Early rabbinic folklore records that once there was a two-headed man lived in the time of King Solomon who fathered six normal children. He sired a seventh child who had two heads just like himself. After the father died, the son with two heads came before King Solomon demanding a double share of the inheritance. King Solomon covered one head and poured hot water on the other. and both mouths cried out: “We are dying, we are dying! We are but one, not two.” Solomon decided that the double-headed son was after all only a single being. From this experience, King Solomon proved that two heads are not necessarily better than one with respect to receiving a double inheritance! [2]

Two Modern Cases

Here are a couple of modern cases that would have puzzled even one as great as King Solomon!

In August, 2000, a British court allowed an operation to separate Siamese twins. The conjoined twins, named, Mary and Jodie, were joined at their lower abdomens, with their heads at the opposite ends of their merged bodies and their legs emerging at right angles from each side. They shared just one heart and one pair of lungs. After birth, it became clear that both girls would die within months if they were not separated. Any operation to separate them would kill the weaker twin Mary, who depended entirely on Jodie for her blood. However, by “killing” Mary, Jodie would have a better chance of surviving.

Being devout Catholics, the parents refused to allow their children to be separated; they accepted the circumstances as God’s will ; they were prepared to let the babies die. Incidentally, this position was later endorsed by the Catholic Church. In September, a British court overruled the objections of the parents and ordered that the operation be performed and so, on November 6, the physicians surgically separated the twins. Mary died on the operating table.

This is not the first time this difficult moral dilemma has occurred. In September 1977, Siamese twins were born to a prominent rabbinic family in Lakewood, New Jersey. The children were taken to Children’s Hospital in Philadelphia, where Dr. C. Everett Koop (who would later went on to become the Surgeon General of the United States) soon realized that if the operation was to be performed, it would mean that the life of the weaker child, referred to as “Baby A” would have to be sacrificed so that “Baby B” would have a chance to survive.

The hospital administration was concerned with the legal and ethical ramifications of the case, as everyone tried to find a way to resolve this dilemma. At that time, the parents turned to Rabbi Moshe Feinstein (1895-1986), who was once regarded as one of the most highly respected Halachic authorities in the 20th century. As a man of great personal piety and integrity, his guidance was beyond reproach. The parents went to him to render a legal decision.

At first Rabbi Feinstein wondered they were dealing with “one human being,” but it was clear that since there were two brains and two nervous systems, ergo, they were two separate human beings. Two weeks later, after reflection and repeated consultations with the medical staff, Rabbi Feinstein issued a ruling allowing the operation. [3] Rabbi Feinstein observed that there are two primary issues in deciding this question; one is the propriety of sacrificing one life for the sake of saving many others, and the second is how one defines the concept of “self defense.”

The Talmud establishes that one may not commit murder for self preservation. If a person threatens another,“Kill so-and-so, or else I will kill you ” the person ordered to kill should sooner let himself be killed than become a murderer. All lives have equal value, and “how do you know your blood is redder than his; maybe his blood is redder than yours. [4] By killing in order to save his own life, the killer presumed that his life has greater importance than the person he killed-which from God’s perspective may prove to be completely unwarranted!

This difference of opinion is of great relevance to the case of the conjoined twins.“Baby A,” reasoned the elderly rabbi, had no independent ability to survive. Her entire survival depended upon “Baby B,” who had the circulatory system to back up the heart and liver’s functioning. If both will die without the operation, and one could survive with the operation, it is as though “Baby A”, the weaker child, has been “selected” for death, because she is certain to die.[5]

Rabbi Feinstein finally decided the case based on the law of the rodef (“pursuer”). There are times when the Torah allows a person to use lethal force-when it comes to matters of self-defense. In addition, an outsider observing the altercation has an obligation to use lethal force in order to save the life of the victim (e.g., a policeman shooting a robber). The Talmud says that even if the aggressor is too young to understand his actions, he is still considered a “pursuer.” However, there is an important exception.

At any rate, Rabbi Feinstein felt that it is still possible for the unborn child to be considered a “pursuer”, because each the mother in travail whose life is endangered and the infant struggling to be born are in a real sense, mutually threatening one to the other. Even in the absence of malice, circumstances can produce a situation that is analogous to the “pursuer.”

Contrarian Perspectives

Verily, not all rabbinical scholars agree that this logic is compelling. The first Chief Sephardic Rabbi of Palestine, Rabbi Ben Tzion Uziel (1880-1953) reasoned that since the Talmud considered childbirth a perfectly natural act, the baby could not be considered a “pursuer” for the dangers that exist here are generated from God. Rabbi Uziel argued that one cannot say that a baby is “pursuing” its mother to kill her since the baby is merely a participant in the miracle we call birth. Since the baby has no animus toward the mother, it may not be put to death once it has a life of its own, i.e., after the baby sees the light of day.[6]

But how do we apply this controversy with the above case of the co-joined twins? Could the weaker twin, “Baby A” be considered a “pursuer” in relation to “Baby B”? At first blush, it depends on which Halachic view you follow. If you accept the opinion of Rabbi Ben Tsion Uziel, then you must say that natural circumstances can’t categorize someone as a “pursuer.”

Let us suggest an alternative approach to Rabbi Uziel’s position. Had the question of co-joined twins been asked to Rabbi Uziel, he might have ruled that the operations were necessary – but not because of the “pursuer” argument advocated by Rabbi Feinstein, but for an altogether different Halachic principle: pikuah nefesh – the imperative to save a life.” If nothing were to be done, both children would certainly die, but the physician has the imperative to save whatever life he can, and since the more viable child had a greater chance, “Baby B’s” life takes precedence over “Baby A.”

From this viewpoint, it becomes more a matter of practicality – the infant who has a greater grasp on life takes priority. In other words, this is essentially a principle of what is known as “triage”. As a process, triage is used for sorting injured people into groups based on their need for or likely benefit from immediate medical treatment. Triage is used on the battlefield, at disaster sites, and in hospital emergency rooms when limited medical resources must be allocated. [7]

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Notes:

[1] It is intriguing to speculate why the Solomonic passage has omitted in a famous Mishnaic case pertaining to two disputants who made a maximalist claim on a lost property that was discovered. The Mishnah in Bava Metzia — 1:1 reads:

Two [in court] lay hold of a garment—this one says, “I discovered it!”—And that one says, “I discovered it!”—This one says, “It’s all mine!”—And that one says, “It’s all mine!”— This one takes an oath that he has no less a share of it than half, and that one takes an oath that he has no less a share of it than half. And they divide it up. This one says, “It’s all mine!” And that one says, “Half of it is mine!”The one who says, “It’s all mine” takes an oath that he has no less a share of it than three parts. And the one who says, “Half of it is mine,” takes an oath that he has no less a share of it than a fourth part. This one then takes three shares, and that one takes the fourth

[2] Hibbur ha-Maʿasiyyot, No 11; BHM IV, 151–152; Maʾasiyyot (Gaster’s edition), 113, 75; Al-Barceloni, 173; Mordecai, Tefillin, who gives PRE as his source. See Gaster, Exempla, No. 113; Steinschneider. Hebräische Bibliographie, XVIII, 16, and Salzberger, Salomo-Sage, 58. Sources cited from: L. Ginzberg, Legends of the Jews (2nd ed.) (Philadelphia: Jewish Publication Society, 2003 ed.), 951.

[3] See Rabbi Moshe David Tendler’s The Responsa of Rav Moshe Feinstein: Vol. I Care of the Critically Ill a Translation and Commentary (Hoboken, Ktav 1996), 125-135. Rabbi Moshe David Tendler was Rabbi Feinstein’s son-in-law. See J. David Bleich, Tradition, Fall 1996, pages 92-125.

[4] BT Sanhedrin 74a.

[5] The Scriptural source for this law comes from the time when King David ordered Joab to bring Sheba ben Bichri to justice (2 Samuel 20ff).

[6] One could argue that Rashi, who permits turning over the selected individual to the aggressor, would allow the surgeons to perform the surgery. Although “Baby A” will certainly die in surgery, it is as though “Baby A” has been “selected” to die, and she may be killed in order to save “Baby B’s” life. However, Maimonides, who on principle opposes killing one to save many, would oppose this operation. Rabbi Tendler reports that Rabbi Feinstein refused to rely on Rashi’s opinion, because he did not want to rely on a disputed opinion in a life and death case.

[7] A personal caveat: I once had a conversation with the late Chief Rabbi of the British Commonwealth, Rabbi Immanual Jacobowitz back in 1985 at a Jewish Medical ethics convention in San Francisco, who felt that “Baby A” should never have been sacrificed for “Baby B” and concurred with Rabbi Ben Tsion Uziel’s logic, but Rabbi Jacobowitz’s reading of R. Uziel may not be correct for the reasons we will suggest later on.