Tehumin – 5767

#Tehumin-27 Rabbi Dr. Michael Abraham

Outline

A. The ‘pursuer’ in an asymmetrical situation

1. What makes you think his blood is redder than mine?! (What makes you think his blood is redder than mine?!)
2. A fetus endangering its mother
3. Give us one of you and we will kill him (Give us one of you and we will kill him)
4. Incurring risk in order to save another’s life

B. Two people pursuing one another

C. Proper conduct in a symmetrical situation

D. Casting lots over lives

E. Volunteering self-sacrifice

F. Implied consent to the casting of lots

G. An act of rescue is not murder

H. Refraining from action

I. Summary

v v v

Siamese twins are a pair of infants born joined to one another. Sometimes they have shared internal organs, and in many cases one of them has defective internal organs. There have already been cases in which Siamese twins remained alive and grew up together, but our concern here is with a case in which there is no chance that both of them will continue to live. The question is: is it permitted to separate them, thereby bringing about the death of one of them in order to save the other?

The question arises both when there is asymmetry between the two twins, and one of them is defined as parasitic relative to his brother, or when one has a greater chance of survival than the other, and when there is full symmetry.[1] At first glance, if continued attachment dooms them both to death, then in terms of gain and loss (a teleological test, a test of outcomes) it would seem proper to save one of them, even at the cost of the other’s life. However, the morality of the Torah is not merely teleological, and it does not depend only on the result of the act, but also on the evaluation of the act itself – and here we are speaking of an act of murder! On the other hand, refraining from any action will bring death upon both of them, whereas the separation surgery will leave one of them alive. Is such refraining really not an act of murder, even if it takes the form of passive omission? Yet even if the decision is to operate and separate them, in a case of symmetry each of the brothers could ask: What makes you think his blood is redder than mine?! – what makes his blood redder than mine?

A. The ‘pursuer’ in an asymmetrical situation

What makes you think his blood is redder than mine?! (What makes you think his blood is redder than mine?!)

The classic example of the rule be killed rather than transgress with respect to bloodshed is a situation in which Reuven threatens Shimon that he will kill him if Shimon does not kill Levi. About this it is said in Pesahim 25b: What makes you think your blood is redder? Perhaps that man’s blood is redder. (What makes you think your blood is redder? Perhaps that man’s blood is redder.) This reasoning presupposes from the outset that there is symmetry between Shimon and Levi; but what is the law when it is clear that one of them is of lesser standing than the other? On this the medieval authorities (Rishonim) and later authorities (Acharonim) disagreed.[2]

At first glance it is clear that, in the classic case above, Shimon is permitted, and indeed commanded, to kill Reuven who threatened him, under the law of the pursuer, since by doing so he saves both his own life and Levi’s life. But even then Reuven could have raised the question: what makes your blood – Shimon’s or Levi’s – redder than mine? There are two possible explanations for this:

• A. Reuven, who caused the situation that arose and is responsible for it, must bear its consequences.
• B. Reuven, as a murderer, is liable to death,[3] and carrying out that penalty falls upon the rescuer.

The difference between these two explanations appears when the pursuer is not culpable for the pursuit, for example where he acts under compulsion. In such a case he is not liable to death, and therefore according to the second explanation he may not be killed; whereas according to the first explanation it is possible (though not necessary) that he may be killed, since in practice he is the one who created the situation, and therefore the cost is imposed on him. Imagine a person seized by a homicidal frenzy (temporary insanity) who begins firing in every direction – could we not kill him as a pursuer merely because he is not responsible for his actions and exempt from punishment?![4]

 A fetus endangering its mother

The issue of a fetus endangering its mother’s life can shed light on this dilemma.[5] Its starting point is Mishnah Ohalot 7:6 (and Tosefta, end of chapter 9 of Yevamot): If a woman is having difficulty giving birth – the fetus is cut up in her womb and removed limb by limb, because her life takes precedence over his. Once most of him has emerged – one may not touch him, for one life is not set aside for another. (If a woman is having difficulty giving birth, the fetus is cut up in her womb and removed limb by limb, because her life takes precedence over his. Once most of him has emerged, one may not touch him, for one life is not set aside for another.) Why does the mother’s life take precedence over the fetus’s before it has emerged into the world? Presumably this is because the mother’s life has greater value than the fetus’s, and the fetus pays the price even though it is certainly not violating the prohibition of murder.[7] Once most of it has emerged,[6] it is no longer judged as a pursuer, because its life and its mother’s life are then equal.

However, the Talmudic discussion in Sanhedrin 72b removes from this fetus, both before and after most of it has emerged, the status of a pursuer. Rav Huna establishes there that a minor pursuer may be stopped even at the cost of his life, and the Gemara infers from this that in Rav Huna’s view the law of the pursuer does not require prior warning, whether adult or minor. But Rav Hisda challenges him from Mishnah Ohalot: Once his head has emerged – one may not touch him, because one life is not set aside for another; but why? He is a pursuer! The Gemara answers: That case is different, for Heaven is pursuing her.

At first glance, the opening clause of the Mishnah in Ohalot is proof for Rav Huna’s position, since the fetus is killed even though there is no possibility of warning it in advance. Yet Rav Hisda challenges Rav Huna specifically from the latter clause of the Mishnah in Ohalot, from which it is clear that there is no law of pursuer in the case of a minor whose head has emerged.

The answer Heaven is pursuing her can be interpreted in three ways:

Something that belongs to the natural order of the world – the contractions and mutual pressure of childbirth – is not considered pursuit; only actions done by human beings, actions that depart from the natural order, can constitute pursuit.

Intent to pursue is required in order for the law of pursuer to apply. Heaven is pursuing her means that there is no intent to pursue here, but rather a natural process – from Heaven.

In the Jerusalem Talmud, in the parallel sugya (Sabbath, end of chapter 14, and Sanhedrin 8:9), it is Rabbi Yirmiyah who brings proof from a fetus whose head has emerged, and there the one who answers is specifically Rav Hisda. In his view, a fetus is not considered a pursuer of its mother because you do not know who is killing (or pursuing) whom. That is, such a situation is symmetrical, and each of them is pursuing the other; therefore there is no permission to kill the child once its head has emerged.[8]

The common denominator of all these explanations is that, according to the Gemara’s conclusion, in such a situation the infant/fetus is not considered a pursuer. In any event, while the fetus is still in its mother’s womb this is a state of asymmetry, and the mother’s life is more important than the fetus’s; for that reason it is permitted to save the pursued party (the mother) at the cost of the pursuer’s life (the fetus).

However, this is not what emerges from the wording of Maimonides (Laws of Murder 1:9; also ruled in Shulhan Arukh, Hoshen Mishpat 425:2):

This is a negative commandment not to spare the life of a pursuer. Therefore the Sages ruled that if a pregnant woman is having difficulty in childbirth, it is permitted to cut up the fetus in her womb, whether by drug or by hand, because it is like a pursuer after her to kill her. But once it has brought out its head – one may not touch it, for one life is not set aside for another, and this is the natural way of the world. (This is a negative commandment not to spare the life of a pursuer. Therefore the Sages ruled that if a pregnant woman is having difficulty in childbirth, it is permitted to cut up the fetus in her womb, whether by drug or by hand, because it is like a pursuer after her to kill her. But once it has brought out its head, one may not touch it, for one life is not set aside for another, and this is the natural way of the world.)

Maimonides’ definition of the fetus, even while still in its mother’s womb, as a pursuer teaches that the law of pursuer applies even in such a case. But if so, a difficulty remains: what is the difference between a fetus that has not yet brought out its head and a fetus that is still in its mother’s womb? In either case it is a pursuer.[9]

It seems that even according to Maimonides the fetus is not an actual pursuer, but rather is only ‘like a pursuer.’ In this state, when Heaven is pursuing her, it pursues against its will, or under natural circumstances, and therefore it is not a true pursuer but only ‘like a pursuer.’ In such a case the permission to kill it is based on the lower value of its life. The combination of the status of ‘like a pursuer’ and the fact that its life does not yet have the value of a complete person is what permits killing it. But if it brings out its head, its value as a human being rises, and one life is no longer set aside for another.[10]

It follows that, according to Maimonides, a pursuer acting under compulsion is a third category, intermediate between a pursuer and one who saves himself at the cost of another’s life, and he terms it ‘like a pursuer.’ In such a case there is permission to kill only a fetus, whose life has lesser value, but not a person whose life has full value. By contrast, a person may not save himself at the cost of another’s life, whether the other is a fetus or a complete person; whereas the law of pursuer permits killing both a fetus and a complete person.

Still, one must ask: why is the fetus defined by Maimonides as a case of Heaven is pursuing her, whereas it is obvious that a person in a homicidal frenzy firing in every direction – who certainly is not punishable and is not responsible for his actions – would not be defined that way? Presumably the distinction is that even if the frenzied attacker bears no responsibility for his actions, he nevertheless performs an active act of pursuit, and everyone has the right to defend himself against him. By contrast, a fetus performs no act of pursuit at all (as stated above, ‘like a pursuer’ and not ‘a pursuer’), and therefore the act of pursuit cannot be attributed to it, but only to a higher power.[11]

We still must ask: why was the fetus defined by Maimonides only as ‘like a pursuer,’ whereas a minor who pursues another in order to kill him is considered in Jewish law a full pursuer whom it is permitted to kill – in Maimonides’ words (Laws of Murder 1:6-7): Even if the pursuer was a minor, all Israel are commanded to save the pursued person from the pursuer, even at the cost of the pursuer’s life – even though the minor’s understanding is not complete? This can be understood in two ways:

• A. A minor nevertheless possesses some understanding, and that is sufficient to render him liable to death for the sake of saving the pursued person.
• B. The minor chose to pursue, and therefore, although his understanding is incomplete, the act done by his choice is still attributed to him, and he is like the frenzied attacker mentioned above.[12]

From the law regarding a fetus in its mother’s womb one may learn that asymmetry by itself is not enough to permit killing, and likewise that quasi-pursuit by itself is not enough to permit it.

 Give us one of you and we will kill him (Give us one of you and we will kill him)

The Tosefta (Terumot, end of chapter 7) presents the law of Gentiles who said to a group of people: Give us one of you and we will kill him; and if not, we will kill all of you. The law is: Even if all of them are killed, they may not hand over a single Jewish life. If they singled out one of them, as in the case of Sheva ben Bichri – they should hand him over, and not be killed. That is, even if all of them are killed, they may not hand over a single Jewish life; but if the Gentiles singled out one person, as in the case of Sheva ben Bichri, he is handed over and the others are not killed. After this ruling is cited in Jerusalem Talmud Terumot 8:4, Rabbi Yohanan and Resh Lakish disagree: according to Resh Lakish, when he is singled out they hand him over only if he is liable to death like Sheva ben Bichri, whereas according to Rabbi Yohanan they hand him over even if he is not liable to death like Sheva ben Bichri.

The status of one liable to death like Sheva ben Bichri, whom it is permitted to hand over, resembles the status of the fetus. The asymmetry in his case arises from two factors: (a) the Gentiles singled out that very person; (b) he is liable to death. Therefore he too, like the fetus, has the status of ‘like a pursuer’ (albeit involuntarily).

Maimonides (Foundations of the Torah 5:5) ruled in accordance with Resh Lakish, and the Kesef Mishneh asks there: how does the reasoning of ‘what makes his blood redder than yours’ help prevent handing over the singled-out man to death, when if he is not handed over they will all be killed? His answer is that this reasoning is not the primary basis for the rule of being killed rather than transgressing. This law is a received tradition, and it apparently stems from the severity of the prohibition of murder.[13]

We noted above that in Judaism the moral criterion, rather than the teleological one (the test of outcomes), is usually decisive, and this explanation of the Kesef Mishneh accords with that principle. However, Rabbi Yohanan’s opinion (which most medieval authorities follow in practice; see Beit Yosef, Yoreh De’ah 157),[14] apparently stems precisely from that teleological criterion – the lives of the entire group are preferable to the life of the individual, even if he is not liable to death. This also emerges from the Lehem Mishneh’s answer to the Kesef Mishneh’s question, according to which the individual is not handed over to the Gentiles only if there exists some possibility, even a remote one, that the group could escape the Gentiles; but if no such possibility exists, he is handed over.[15]

Incurring risk in order to save another’s life

Another case of asymmetry is where a person is required to save his fellow from certain danger, while he himself thereby enters into a possible danger. The Kesef Mishneh (Laws of Murder 1:14) cites Hagahot Maimoniyot in the name of the Jerusalem Talmud (Terumot, end of chapter 8): It concludes: one is obligated even to place himself in possible danger. And the reason appears to be that the other’s danger is certain, whereas his own is doubtful. In other words, one is obligated even to place oneself in possible danger, and the reason appears to be that the other’s danger is certain, whereas one’s own is only doubtful.

The author of Havot Yair (no. 146) proved from Bava Metzia 62a, from the case of two people walking on the road and one of them holding a single flask of water, that the precedence of the flask’s owner (according to Rabbi Akiva) applies only if it is clear that dividing the water between them will bring about the death of them both; but when it is only doubtful whether they will die, Rabbi Akiva would concede to Ben Petura that both should drink. This shows that a person must, or at least it is proper for him to, place himself in possible danger so that there may be some chance – not certainty – of saving his fellow. But this is still not similar to the ruling that Hagahot Maimoniyot derived from the Jerusalem Talmud, because in the case of Havot Yair there is symmetry (both are in the same possible danger), whereas the Jerusalem Talmud deals with certain rescue.

The decisors did not codify as practical law an obligation to enter possible danger in order to save someone from certain danger. The Or Sameach sees in the law ruled by Maimonides in Laws of Murder 7:8 a contradictory ruling. The Mishnah Berurah (329:19) ruled: If there is danger to the rescuer, he is not obligated, for his own life takes precedence over his fellow’s.

The inference from the law of the two walking in the desert, as Havot Yair inferred, cannot establish the clear law in a case of asymmetry, because it is not clear whether that sugya (in the Bavli, Bava Metzia 62a) speaks of an obligation, a permission, or moral guidance (what is fitting). According to the Hazon Ish (Hoshen Mishpat, Likkutim, no. 20), Ben Petura forbids the owner of the flask to drink all the water and thereby save his own enduring life at the cost of his fellow’s brief remaining life. According to this, Rabbi Akiva, who rules your life takes precedence over your fellow’s life, is speaking of an obligation (the flask owner’s obligation to save his own life), and not merely of permission. And if so – since the law follows Rabbi Akiva – a person may not surrender his own life to save another’s. If this is forbidden even in a case of possible danger, all the more so in a case of certain danger.[16]

B. Two people pursuing one another

In Philadelphia, USA, in 1977, a pair of twin girls were born joined at the chest. One of them had a normal four-chambered heart; the other had a defective two-chambered heart (half a heart), and therefore relied also on the healthy heart. It was clear that as conjoined twins both of them could not survive, and that after separation the one with the defective heart would not survive. The matter was discussed in court, where the case was likened to a mountain climber who lost his hold and was left hanging from a rope held by another climber. Since that rope could not support both of them, it was clear that the climber with the more secure hold was permitted to cut the rope, thereby sending his fellow to his death. So too in the case of the Siamese twins, the court permitted the sister with the defective heart to be disconnected from her attachment to the healthy heart of her sister.

This case was also brought before Rabbi Moshe Feinstein. After clarifying that there was asymmetry between the two sisters, he ruled that the separation surgery should be performed, thereby saving the one with the healthy heart at the cost of the life of the one with the defective heart.[17] This may be compared to a person in a homicidal frenzy firing in every direction, where it is certainly permissible to save the others at the cost of his own life, despite the fact that the sister with the defective heart is not performing an act of pursuit, and apparently Heaven is pursuing her sister.

On the other hand, the status of this sister is like that of a fetus endangering its mother, which, as noted above, is only ‘like a pursuer’ and not a full pursuer; and once it has brought out its head (and in our case both have already entered the world), one life is not set aside for another. Rabbi Bleich also discussed this,[18] and he raised the argument that since this is a case of mutual pursuit, the law of pursuer no longer applies. He supported this from Rabbi Shlomo Eiger, cited in Hiddushei Rabbi Akiva Eiger to Ketubot 33b, who proves this from a precise reading of the Gemara.

The inference is drawn from Rabbi Yonatan ben Shaul (Sanhedrin 74a), who interprets the verse and there is no fatality, he shall surely be punished (Exodus 21:22), from which it is inferred that if there is fatality he is not punished. Although this is a case of a pursuer, nevertheless, since he could have been saved by one of his limbs, he is liable to death and exempt from monetary payment. Rabbi Shlomo Eiger asked: if this is a pursuer, why should he not be liable to death even if there is no fatality? His answer is that the verse when men strive deals with two men who began their quarrel simultaneously, each coming to kill the other; and since, with respect to the other, neither had the status of one being pursued and therefore neither was permitted to kill the other, there is no law of pursuer here.

However, in the case discussed by Rabbi Feinstein and Rabbi Bleich (who in the end reached the same halakhic conclusion by different routes), it is difficult to define the sister with the healthy heart as a pursuer, when her sister draws her vitality from that very heart. In this respect there is asymmetry here, which, as stated above, removes the discussion from the classical sugya of pursuer.

The comparison between the case of Siamese twins and the quarrel of two men is also not complete. If even in the case of Siamese twins there is no law of pursuer, then we must allow the case to unfold naturally; but then most likely both of them will die. By contrast, in the struggle of the two men, one may assume that the stronger prevails and only one of them will die. Therefore, in our case it seems that even Rabbi Shlomo Eiger would agree that intervention is required. Moreover, two men who entered the fight on their own initiative can be regarded as pursuing one another, and for that reason the law of pursuer is suspended; this is not so with the two sisters, where there is no act or initiative of pursuit at all.

It seems more plausible, even in this case of Siamese twins, to return to the principle we noted above: in a case of asymmetry, the one who created the situation, even if not through his own fault and not intentionally, must bear the price. Admittedly, we have already noted that asymmetry alone is not enough to impose full responsibility upon him; one must add to this that the case is one of ‘like a pursuer.’ And we have already seen that asymmetry together with the status of ‘like a pursuer’ is sufficient, according to Maimonides and the Shulhan Arukh, to permit intervention.

Rabbi Feinstein builds his ruling on asymmetry alone, and that asymmetry is created by the fact that the twin with the defective heart is destined to die in any case. He compares this to the law of the group from whom the Gentiles seek to kill one person and single him out. But we have already seen above that asymmetry alone is not enough to permit killing; only when supplemented by another consideration (such as the category of ‘like a pursuer,’ and not a full pursuer) can permission be granted.

C. Proper conduct in a symmetrical situation

From Rabbi Feinstein’s ruling, which is based on the fact that the situation is asymmetrical, it may be inferred that in a symmetrical situation there is no permission at all to intervene. A symmetrical situation is somewhat analogous to the problem that arises in selective fetal reduction, when after fertilization several fetuses are growing in the mother’s womb, and it is necessary to destroy some of them in order to enable the others to live. Those who permit this rely mainly on the fact that killing fetuses is not analogous to the murder of complete human beings.[19]

Even in a case where the fetus has already brought out its head, about which it is said that one life is not set aside for another, and this apparently is a symmetrical situation, some later authorities discussed permitting the killing of the fetus when its mother may die, since the life of a fetus presumed to be nonviable and whose term is not yet complete is not equal to that of the mother.

A symmetrical situation may be found in Siamese twins who together have only one healthy heart, and it cannot be clearly ascribed to either of them. If we were to accept what appears to emerge from Rabbi Feinstein’s responsum – that in a symmetrical situation one life is not set aside for another – we would have to refrain completely from intervening in such a case. But, with all due respect, in my humble opinion this is not so, and I will explain.

In a symmetrical situation we are generally dealing with two people pursuing one another. At first glance, the determination that one should not intervene in such a case is not a proper course of conduct from the outset, but rather follows from the inability to decide which of the two to harm. But in truth there is a way to choose, and it is by means of a lottery. The lottery in this case does not come merely to make it easier for us to choose whom to harm; at its foundation lies mutual waiver, which turns our intervention into a proper course of conduct from the outset, rather than a mere last resort caused by the absence of any other way.

The problem with casting lots is that this action has no power to permit murder, and after all one of the twins’ lives will be taken as a result. However, the symmetrical situation, in which each twin endangers the life of the other, turns them both into pursuers. Once each of them has that status, each may lawfully be killed for the sake of saving his brother, and therefore this is not murder but rescue. The lottery merely determines to which of the two the law of pursuer, which already exists here in any case, is to be applied.

Moreover, in our case both twins stand before certain death, and the only way for either of them to be saved is solely through consent to the lottery (below we will discuss this consent). Could we seriously think that a person is forbidden to assume a fifty-percent risk of death in order to save himself from certain death? Would we forbid a person trapped in a burning house to jump down for fear that there is a fifty-percent chance that he might die? If he remains in the house he will certainly die. This is precisely the twins’ situation.

But now the following question still remains: why, in the case discussed by the Jerusalem Talmud – where they say, Give us one of you and we will kill him, without specifying whom they demand – is the solution of a lottery not proposed? There too, apparently, each member of the group is endangering all the others.

This can be answered on two levels, one above the other. First, that case does not involve the law of pursuer, for none of them is pursuing his fellows. At most, it is a situation in which one of them, by not being handed over to the Gentiles, prevents the rescue of his companions. What remains is the rule of one who saves himself at the cost of another’s life, but not the law of pursuer. Since his life has not thereby become forfeit under the law, it is forbidden to cast lots, since a lottery can at most serve as a criterion of choice among people whose lives are already forfeit under an independent rule, but it cannot itself create such permission.

However, another explanation may be suggested here, and it is much more plausible. One must remember that when we refrain from handing over one of them, all will certainly die, including that individual himself. As noted, there is no logic whatsoever in forbidding a person trapped in a burning house to jump down out of fear that he might die. If so, it should not enter our minds to forbid each of them from agreeing to participate in a lottery that will determine who is handed over and who is saved. Therefore such a lottery is not an act of murder but an act of rescue. Each of them is willing to enter the lottery in order to create a chance that he himself will be saved.

If so, how then should we understand the law of the Jerusalem Talmud? At first glance, there we forbid them to conduct such a lottery. But we must remember that this law of the Jerusalem Talmud was stated in the context of the laws of sanctification of the Divine Name (and this is also the context in which Maimonides cites it). One might have thought that its connection to sanctification of the Name is only because there is here an obligation to die rather than transgress the prohibition of murder, but that understanding is exposed to all the difficulties we raised in the previous paragraphs. Therefore, it seems to me that the entire prohibition against handing over one person to save the others stems from the fact that submitting to such a Gentile demand would constitute a desecration of the Divine Name. For this reason all teleological calculations of expediency are set aside. In such a situation we forbid the person to jump out of the burning house.

But from this it follows that if the threat comes from an external and neutral cause (as in the case of Siamese twins), then it is certainly obvious that it is permitted to cast lots and hand over one in order to save the rest. Why should all of them die? We may note that this logical argument was apparently assumed implicitly by all the decisors and commentators who raised difficulties against Maimonides and the Jerusalem Talmud (the Kesef Mishneh, Lehem Mishneh, Ramakh, and others, whose words were cited above). Our proposal is a fitting, indeed necessary, way out of that difficulty.[20]

D. Casting lots over lives

A lottery is a legitimate mechanism in Jewish law – by means of it one may divide a partnership or an inheritance, draw lots among priests with respect to Temple service and the eating of sacred offerings; it is also used in sacred service on the Day of Atonement. One who violates a lot is like one who violates the Ten Commandments (Responsa Havot Yair, no. 61), and see also the Talmudic Encyclopedia, entry ‘Goral’. Nevertheless, not in every matter are we permitted to decide conclusively on the basis of a lottery. The author of Sefer Hasidim addresses this in sections 679 and 701. In the latter section he rules that in our times one may not rely on a lottery, and writes: A commitment based on contingency does not create acquisition in monetary matters, and all the more so in matters of life one should not rely on a lottery… And even in monetary matters one casts lots only when dividing equally. But one does not set two pieces against one piece unless the two are equal to the one, nor a large piece against a small piece except when they are equal by reasonable estimation. And because the two goats of the Day of Atonement required a lottery, they were equal in appearance and in height.

The restrictions stated by Sefer Hasidim regarding casting lots in monetary matters (absolute equality) are, according to him, not sufficient to permit casting lots in matters of life and death. In the biblical period, such as in the days of Saul, matters of life were determined by lot (see I Samuel 14:42), but there – in his words – there was an Ark, and every judgment came from God, and they knew in what manner to cast the lot; not so in our time. At first glance, according to this, even the decision as to which of the Siamese twins should pay with his life cannot be made by lot.

However, the examples discussed in Sefer Hasidim are like the example of Jonah – people traveling by sea over whom a storm wind arose – and the question is whom one should cast into the sea. The danger is great, but it is not certain as in the case of the two Siamese twins, where lack of decision and inaction will certainly bring about the death of them both. Beyond that, on the ship there is no full assurance that throwing one person into the sea will save the entire ship. By contrast, in the case of Siamese twins it is clear that one of them can be saved at the cost of the other’s life.

Proof that, in order to permit a lottery, complete confidence is needed that its consequences will bring about the saving of lives may be derived from the difference between the two sections of Sefer Hasidim. In the first of them (section 679) it is stated that they are permitted to cast him into the sea, whereas in the second (section 701) the conclusion is that they are not permitted to cast lots, and it is forbidden to do as they did to Jonah son of Amittai. The difference is that in the first section the situation is that the ship in question is passing through a storm wind that threatens to break the ship or sink it… while the other ships pass safely, and it is known that there is someone on the ship who is guilty. This provides a divine indication that casting one of them into the sea will save the whole ship, and that indication is what permits the lottery. This is not so in the second section, where the ship is struck by a storm wind, and there is no divine indication at all that throwing one person into the sea will help save the others (as opposed to the other ships that pass safely). It is no wonder that in such a case there is no room to permit a lottery for the purpose of casting someone into the sea. There is no logical basis for this, and therefore it is a plain act of murder.[21]

In the absence of a clear indication there is no permission to cast lots, all the more so since there no person’s life is already forfeit under the law as that of a pursuer. But in the case of Siamese twins – not only is there a clear indication that if they are not separated neither will live, and not only is there medical opinion that the separation and the killing of one will save the other (unlike Jonah’s ship), but the classification of both of them as pursuers renders them both subject to that law and allows the use of a lottery in order to decide which of the two is to die.

The author of Sefer Hasidim sees casting lots as a case of asmakhta, and if so, one who relies on the lot would be considered a robber in monetary matters, and a transgressor if he performs a forbidden act (in our case: murder) on its basis. But in our case we are dealing with the saving of life, and the act is not an act of murder. Therefore, even if there is some prohibition in casting lots (and we do not see what prohibition there could be here), just as all other prohibitions do not stand in the face of saving life, so too any prohibition against relying on a lottery. According to this, just as it is a commandment to desecrate the Sabbath for the sake of saving life, so too it is a commandment to cast lots in this case of Siamese twins.

E. Volunteering self-sacrifice

As stated above, according to Rabbi Shlomo Eiger, when two people pursue one another neither of them has the status of a pursuer. All that remains for each of them is the commandment to save the other. But since saving the other entails the rescuer’s own self-sacrifice, he is obviously not obligated to do so (as stated by the Mishnah Berurah 329:19), and perhaps the matter may even be prohibited.[22] Would it therefore be forbidden for the owner of the flask who is traveling with his fellow in the desert, where the flask belongs jointly to both of them, to give his own share to his fellow? It seems that he is permitted to do so, since without this he too is destined to die, and is already, in effect, a dead man walking.[23]

At first glance, the same applies to the group from whom the Gentiles demand that one of them be handed over: one who wishes should be entitled to volunteer and hand himself over to the Gentiles, thereby saving the entire group. The whole reasoning in the Jerusalem Talmud for not handing over the individual is that no one may prefer his own blood to that of another; but a person may certainly say to himself that his fellow’s blood is redder than his own, and volunteer to give up his life in order to save the other. Proof of this may be brought from the martyrs of Lod, who, as explained by Rashi to Ta’anit 18b, s.v. Lodkiya, surrendered themselves to death in order to save Israel from a Roman decree.

Why does the Jerusalem Talmud not propose this solution for the group from whom the Gentiles ask that one of them be handed over? One might say that the Jerusalem Talmud discusses only the possibility of coercion, where all the members of the group compel the individual, and that possibility is rejected; but the question of volunteering is not discussed there at all.

But the option of a lottery still remains open. If a person is permitted to volunteer and surrender his life, he is certainly also permitted to agree to the casting of lots. Even if a person has no ownership over his body, and may not place himself in danger, nevertheless he may agree to a lottery, for the lottery may benefit him and save his own life. Where his life had until now been in danger, it is possible that the lot will fall on his fellow and he will be saved. Even if by agreeing he places himself in danger lest the lot fall on him, it seems that a person may forgo his brief remaining life for the possibility that in this way his full life will be saved.[24]

One may argue that it is impossible to compel the members of the group to cast lots among themselves, for however the lot falls, the members of the group will be compelling one of them to surrender his life for them, and what makes their blood redder than his? Perhaps for that reason the Jerusalem Talmud, which deals with a situation of coercion, did not even propose that they cast lots among themselves. But as we saw above, the explanation of the Jerusalem Talmud is different – namely, that it deals with the laws of desecration of the Divine Name and not the laws of saving life. Therefore there is room for the argument that it is even possible to compel all the participants to accept the lottery, for anyone who refuses the lot condemns all the others to death (including himself). This is like the famous midrashic case of the person drilling a hole beneath his own cabin on a ship.

F. Implied consent to the casting of lots

Since our subject is the separation of Siamese twins, usually – unless they are adults – it is not possible to obtain their consent to the casting of lots. First, let us say that at first glance we do not need their consent at all, because the doctor holding the surgeon’s scalpel is like a third person holding the flask, who according to the Hazon Ish (Hoshen Mishpat, Likkutim, no. 20) may give it to whomever he wishes, and before him too stands the option of deciding by lottery.

However, even if their consent were required (perhaps because the scalpel in the hand of the doctor, who is appointed by the community, is not like a flask owned by the one who happens to hold it), it seems that in this case there is implied consent to the conduct of the lottery. The principle of implied waiver may be learned from the sugya of returning lost property on the basis of identifying marks, regarding which the Gemara says (Bava Metzia 27b): The owner of the lost item is content to provide identifying marks and take it back; he knows that he has no witnesses, and he says to himself: not everyone knows its distinctive identifying marks, but I will give its distinctive identifying marks and take it. The waiver of the lost article by its true owner (in the event that the article is transferred to the wrong hands) is made on his behalf, and apparently he could not even say, I do not want the enactment of the Sages. All this is because this is the only chance for him, and for every other person as well, to recover his lost object. The same is true in the case of the Jerusalem Talmud, where we argued that there is a strong rationale for the possibility of compelling a lottery, since the lottery creates the only chance for each of them (including the one who opposes the lottery) to be saved.

As noted, in most cases the separation of Siamese twins is discussed while they are minors; if so, one must ask: minors are not legally capable of waiver. But on this point the Gemara in Kiddushin 42a already established, regarding the division of an inheritance, that a religious court has the power to appoint a guardian for minors, since the court is the father of orphans. This ruling gives the religious court authority also to cast lots among minors, exactly as is done in the division of an inheritance.

Reliance on implied waiver can apply only in a case of symmetry between the two parties under discussion. Then one may assume that each waives the risk to his life in exchange for his chance to gain life. But when there is asymmetry between them, such as where one of the Siamese twins has the defective heart, one can no longer rely on that waiver. On the other hand, in such a case Rabbi Feinstein already ruled (as cited above in section B) that the one whose chances of survival are smaller is regarded as like a pursuer of his brother, and his brother may be saved at the cost of his life. This reliance is, of course, conditional on the lottery being fair, so that each participant has an equal chance of being saved. Here this is not merely a question of fairness, but a condition of the implied consent itself, which was given only on that basis.

G. An act of rescue is not murder

As noted, the casting of lots will necessarily lead to the killing of one of the twins, and nevertheless it does not seem that there is any prohibition on casting the lots, since this is not an act of murder but an act of saving life. The Hazon Ish (Hoshen Mishpat 25, s.v. Ve-yesh le-iyyen be-ehad) discusses a person who diverted an arrow that was about to strike many people toward a single individual, and inclines to say that diverting the arrow is not an act of murder, since its purpose is the saving of lives.

The distinction between diverting the arrow and handing over a person to the Gentiles in order to save the entire group is, according to the Hazon Ish, that diverting an arrow is in essence an act of rescue, only as a consequence of which another person is harmed; whereas handing over a person to the Gentiles is an act of killing, after which rescue of the many comes about for an external reason.

By the same token, the separation of Siamese twins is not, Heaven forbid, an act of murder, but an act of saving lives. And certainly the casting of lots before the separation surgery is likewise part of the act of rescue, not of an act of killing.

H. Refraining from action

One might say that refraining from handing over one member of the group to the Gentiles in order to save the entire group stems from indecision, and that the decision then becomes one of passive inaction. This is also practiced in monetary law, where property over which there is doubt is sometimes neither divided nor left in the hands of the current possessor, but rather let it lie until Elijah comes. But in monetary matters, freezing the situation does not upset the balance between the parties, because from now until forever the true owner of the object still has the possibility of bringing proof of ownership. And even if the object truly remains lying there until Elijah comes, this serves as a penalty to the deceiver, as emerges from the Mishnah in Bava Metzia 37a and according to the Shakh, Hoshen Mishpat 300:10. In our case, if the separation surgery is delayed, there will no longer be any remedy; and likewise it is impossible to blame either of the twins for the situation that has arisen, and therefore no penalty is due to either of them.

What emerges from our discussion here is that even if refraining from handing over one member of the group stems from a preference for inaction, there that can be justified because the act of handing him over is an act of killing, from which one must refrain. But, as stated, surgery and separation are not an act of killing, but an act of rescue; and the Sages have already said (Sotah 21b) that a pious fool is one who refrains from an act of rescue because of other considerations, even if they are halakhic considerations. Refraining from separating the twins means imposing a sentence of death on both sides.

I. Summary

• When the two infants joined to one another are not in a symmetrical situation, but rather one has a better chance of surviving than his brother, separation is possible, even though one of them will thereby die and his brother will remain alive. The source for this is the law of the pursuer – which permits, and even obligates, saving the life of the pursued person at the cost of the life of the pursuer.
• Our main innovation here is that even when the two twins are in a symmetrical situation, there is an obligation to separate them in order to save one of them. In order to choose which of them to leave alive and which to cause to die, lots should be cast between them. This is permitted for several reasons:
  1. It may be assumed that even the one whose fate is decided toward death waived his rights at the time of the lottery, because at that very moment the lottery also created for him the only chance of remaining alive. As we have seen, there is no impediment to casting lots in such a situation.
  2. Since this is a symmetrical situation, and since this is a clear act of saving life, neither the casting of lots nor the separation surgery constitutes an act of murder. Had this been an act of murder, it might have been forbidden, just as it was forbidden in the case of the group of people who were required to hand over one of them to death.

The most problematic source, which at first glance contradicts our conclusion, was the law of the Jerusalem Talmud and Maimonides concerning the case of Give us one of you. It emerges clearly from the words of the decisors that this source is what led them to follow so puzzling a path, one that forbids separation in the symmetrical case even though by doing so we decree that both of them must die. As stated, this is tantamount to forbidding a person to jump from a burning house.

But our discussion has clarified that the subject of the sugya there is the laws of desecration of the Divine Name, and not the laws of saving life; with this, the matter is properly settled and all the difficulties disappear of themselves. The solution we proposed in the Jerusalem Talmud removes the constraint that led to that ruling, and in our opinion it may pave the way toward recognizing the halakhic obligation to separate the twins in order to save at least one of them.

[1].   Full symmetry can also exist when the single heart is located in one of them, since that heart serves both twins equally.

[2].   On this matter see: Rabbi Yehuda Dick, ‘Organ Donation from a Moribund Patient to Save Human Life,’ Assia 53-54 (14:1-2), Elul 5754, pp. 48 – 58, chapters 7-8; Rabbi Dr. Mordechai Halperin, ‘Is Heart Transplantation Permitted According to Jewish Law?’, Sefer Assia V, pp. 55-79, chapters 5-8; my article ‘The Problem of the Relation between the Collective and the Individual and the Defensive Shield Dilemma,’ Tzohar 14, p. 61.

[3].   See: Hiddushei Maran RYZ HaLevi on Maimonides, Laws of Murder 1:13; Afikei Yam, part II, no. 40.

[4].   If this were complete insanity, it is possible that this would amount to asymmetry in the value of the lives, and the sane person’s life would indeed take precedence.

[5].   See a discussion of this in the novellae of the Seridei Eish to Sanhedrin, no. 40, and in Gahalei Eish, Rabbi A. A. Weingort’s commentary there.

[6].   In the Tosefta: it has brought out its head, and the two expressions amount to the same thing – in both cases it is regarded as born, as explained in Hullin, chapter Behemah Ha-Maksha.

[7].   The decisors disagreed, however, whether the difference concerns only the punishment, or whether there is also a difference in the severity of the prohibition. On this see Rabbi Dr. Mordechai Halperin, ‘Termination of Pregnancy – Legal, Moral, and Halakhic Aspects,’ Refu’ah u-Mishpat 27, 2002, at the beginning of chapter 5. See also Birkat Kohen at the end of the first chapter of Arakhin.

[8].   There is room to identify the Jerusalem Talmud’s approach with one of the two answers in the Bavli. From the reasons proposed in the Bavli it emerges that there is no clearly defined pursuer here.

[9].   It does not seem reasonable to distinguish between a fetus and an infant whose head has emerged regarding the question whether it is a pursuer or not – see Tosafot Rabbi Akiva Eiger on Mishnah Ohalot.

[10].  According to this, Maimonides interprets the Gemara as follows: the assumption was that the fetus is killed under the law of the pursuer. But that gives rise to the question: why is the infant not killed once it has brought out its head, if it too is a pursuer? The answer is that it, like the fetus, is not a true pursuer but only ‘like a pursuer,’ since he is being pursued from Heaven. Therefore it is permitted to kill a fetus whose life has lesser value, but not one whose head has emerged.

[11].  It would seem that in the case of a pursuer acting under compulsion (for example, one in a homicidal frenzy), only the permission to save the pursued person applies, but not the obligation to carry out a death penalty upon the pursuer. This may explain Maimonides’ distinction between a fetus and one whose head has emerged. When there is no death penalty, the permission to save the pursued person is not a sufficient basis for permitting the killing of a complete person for that purpose. Rabbi Hayyim of Brisk explained this similarly in Hiddushei Rabbi Hayyim HaLevi, Laws of Murder 1:9.

[12].  Therefore, according to most decisors (see Sema 425:3, Minhat Hinukh, commandment 600, subsections 2-3, Hiddushei Rabbi Akiva Eiger to Ketubot 33b), there is no need to warn an adult pursuer in advance in order to permit killing him, since what matters to us is the saving of the pursued person, not the distinction between whether the pursuer acts inadvertently or deliberately, which is the purpose of prior warning.

[13].  Nevertheless, if he was singled out and he is liable to death like Sheva ben Bichri, it is permitted to hand him over, for if he is liable to death – even not under Torah law but under the law of the kingdom (as in the case of Sheva ben Bichri in II Samuel chapter 20) – this is not an act of murder. Just as the king, or his executioner, has the authority to execute him, so too any other person may do so. But if he was only singled out, and is not liable to death, it is forbidden to lay a hand upon him, for the blood of the others is no redder than his.

[14].  The Bah and the Taz disagree with the Rema on the basis of the Jerusalem Talmud, according to which Elijah did not wish to visit Rabbi Yehoshua ben Levi because he acted in accordance with Rabbi Yohanan. But Rabbi Yehuda Dick (see above, note 2) already observed that the Jerusalem Talmud there speaks of an extra measure of piety.

[15].  In the version of the Tosefta, the opinion of Rabbi Yehudah appears explicitly, interpreting the baraita as a case in which death is not certain.

[16].  This is the place to mention as well, in memorial, Lieutenant Colonel Roi Klein, of blessed and sainted memory, in the Lebanon War of 5766/2006, and the earlier case of Natan Elbaz in 5714/1954, who threw themselves upon a grenade and were killed, thereby saving the lives of their comrades.

[17].  Rabbi Feinstein too used illustrative examples, and they are quite close to those of the American court. The course of events was described in the Philadelphia Inquirer of October 6, 1977. Following this, a concise survey was written in Rabbi Dr. Mordechai Halperin’s article – Siamese Twins: Rav Feinstein’s Ruling and the Subsequent Controversy, ASSAI – Vol. IV, No. 1, February 2001. See also Rabbi Professor David Bleich’s article – Tradition 31, No. 1 (1996): 92-125. See also the lesson unit of the Ministry of Education: ‘The Story of Siamese Twins,’ And You Shall Choose Life, Ministry of Education – Curriculum Division, 5759/1999.

[18].  See the previous note.

[19].  On fetal reduction see: Rabbi Yitzhak Zilberstein and Dr. Pinhas M. Oisher, Assia 45-46, 62-68 (1989); A. S. Abraham, Nishmat Abraham, part III, Hoshen Mishpat 425:1 (21); Rabbi Mordechai Eliyahu, Tehumin 11, pp. 273 – 274.

[20].  It still requires further analysis why the decisors assume that the sugya in Jerusalem Talmud Terumot and in Maimonides deals with the laws of saving life, and not with the laws of desecration and sanctification of the Divine Name.

[21].  On the halakhic weight of the lottery, see Rabbi B. Z. Kriger’s work on the Book of Jonah…

[22].  For sources on this discussion, see Rabbi Dick’s aforementioned article (note 2), and Rabbi Bleich’s article, Tehumin 3, pp. 275 – 286.

[23].  In the actual case discussed by the Gemara itself, this is not agreed upon; see Rabbi Dick (cited above), chapter 5, and Minhat Hinukh, Machon Yerushalayim edition, commandment 237, editor’s note 5.

[24].  As in the example above of jumping from a burning house, and as concluded by Rabbi Yehuda Dick in his aforementioned article (chapter 3).