Wednesday, March 19, 2008

YU Medical Ethics- Split Decision: Separation of Conjoined Twins in Halakha

These notes are unofficial and unedited. Any and all mistakes are mine.

David Harari:

Hello and welcome to the YU Student MedEthics event titled "Split Decision: Separation of Conjoined Twins in Halakha." We would like to dedicate this lecture/ learning to the Mercaz HaRav victims. I am delighted to see that all of you were able to attend this most anticipated event. My name is David Harari and I am a board member- the YU MedEthics society is a student run MedEthics society dedicated to running- MES is especially focused on issues of MES and their relation to halakha, Jewish law and Jewish values. Serve as an educational resource for laymen, rabbis- encourage all those people interested in becoming involved with this society to please sign up at the listserv at the table and there should be pages passed around as well. Firstly, would like to thank my cochairman Michael Plaut. Special thanks to the President, Aaron Kogut, whose late nights, organizational skills, care for very fine details- thank you to Dr. Rabbi Edward Reichman- his insight and advice are invaluable. Many thanks to all my fellow board members- thanks to sponsors CJS, YSU, Student Councils of both schools. I would like to thank my father for coming and my wife for attending as well.

Would like to thank my cherished speakers and lecturers- who have graciously given their time to share, etc

Although a rare phenomenon estimated to range between- conjoined twins and more familiarly, Siamese twins are familiar to us- famous decision concerning the baby a and baby b twins. Popular conjoined twins- Oprah magazine- obviously the surgical separation of conjoined twins, whether of the parents own volition or medically dictated, tremendous ethical and medical concerns, touching upon life and death. Ultimately brought forth to Torah giant, Rabbi Moshe Feinstein- quote from writer “For all a time of intense ____ and ______ as science extends its control over life and death.” Rabbi Dr. Moshe Tendler quoted Dr. Koop who was once at Philadelphia Hospital- turned to his inpatient “The ethics and morals involved in this decision are too complex for me. I believe they are too complex for you as well. Therefore I refer you to an old scholar in Lower East Side of New York [Rabbi Feinstein] – when he tells me, I too will know.” Likewise, I too believe these matters are beyond me- I will introduce all the speakers now and we will be privileged to hear from them.

Dr. Gerard Weinberg graduated Einstein in 1973 and stayed on before studying Pediatric Surgery in ______, Rambam Hospital in Haifa, Israel. Arriving in the Bronx in 1982, special interests in neuronatal surgery, board certified in pediatric surgery – professor at Einstein and clinical director at children’s hospital in monteifore. Special interest in newborn surgery.

Mr. David Wasserman- research scholar at institute of _____. Has held research fellowships at Harvard and NYU, Center for Disease Control and Prevention- works on issues in genetics, reproduction and research ethics. Mr. Wasserman coauthored a book on Disability, Difference and Discrimination- genetic testing, healthcare and disability. Public Policy Quarterly published by University of Maryland, authored article titled “Killing Jody to Save Mary- ____”

Rabbi Feldman serves as Director of Rabbinic Research at CJF. Author of three books in Hebrew, coeditor of 6 volumes of Talmudic essays- earned his degree from RIETS- also graduate from WEXNER Kollel Elyon. Source packets contributed tonight contain many valuable sources on this topic.

Dr. Gerard Weinberg:

Thank you Mr. Harari. I’m glad you read that new biography- what you didn’t describe in my biography is that before I went to Albert Einstein for my medical school I was a student right here at YU, both at the high school across the street and I think the last time I was in room 501 across the street from Belfer Hall was probably spring of 1969- took some long-forgotten final exam. I’m glad to say that I passed the exam. The room hasn’t changed much- the floor is the same as it was 39 years ago- the chairs look different.

I’m privileged to be able to speak about the topic of conjoined twins- a couple of years ago I had the ability to work on a pair of conjoined twins at Montefieure- some of these slides were given to me by _____, one of the people who was on the team who worked on separating them. Quite relevant in the year 2008.

What are Conjoined Twins?

Conjoined twins are identical twins that have not split properly after fertilization- they share a body and may share vital organs
Identical twins are created from a single fertilized egg
IF the egg does not separate within 12 days, it will not split completely
Instead of creating 2 separate embryos, they will remain attached, causing the babies to grow into one another


Monozygotic twins 4/ 10000 live births
Dizygotic twins- 10-15/ 1000 live births
Conjoined twins: 1/50,000 live births

1% conjoined twins are stillborn
40-60% survive only 1 day
25% of conjoined twin fetuses die in utero

These are extremely rare twins/ births. Conjoined twins, depending on the literature you read occur approximately 1/50,000 live births. Most of them are stillborn. About a quarter of these babies will die in utero.
This is a picture of a set of twins- as you can see they are joined; they had shared one heart, one circulatory system- both intubated.

For many, many years conjoined twins were noted to be something abnormal, depending on the culture into which these twins were born- they were either ostracized or condemned. Many Near-Eastern religions felt these were a manifestation of God’s wrath- punishment that God visited upon the parents for sins committed. Look at some of the Antiquities in Greece, statues of them found in some museums.

Even as late of 1800s, in our society, large role to play in certain circus site plays- look at some of the literature, early written literature, early craniopagus images early, early on- describing them joined at the hip.

Craniopagus- Oldest known published case is in 1495- one lived to age ten, the other twin died one hour later- this was felt to be part of god’s displeasure. In the 1500s, surgeons decided to separate these twins- most of the time one twin survived or both of the twins died day after. First successful operation was in 1952 with Dr. Grossman- again, only one survived. If you look at more modern literature in 1964, three separations- 50% mortality.

Many manuscripts showing different kinds of twins- manuscript published in Genet in year 1645.

Thoracapogus parasiticus as a circus performer!

This is a craniopagus parasiticus- instead of two complete twins, one full baby and haed of second baby attached to it.

These are the Siamese twins Mr. Harari discussed- comes from Eng and Chang Bunker who were famous born in Siam in 1811- they were joined just at the level of the umbilicus and became circus performers for PT Barnum. This is a picture of the extended Bunker family. What people don’t know is that the Bunkers actually did quite well- the separation/ what was attaching them was actually quite small. By today’s surgical techniques, the surgery would have been very easy to separate.

They maintained two separate households, lived at two different forms, each were married, one had 10 children and the other had 12 children- go figure.

1874- age 63- one of them developed bronchitis and died 50? days later. The other twin died 2 hours later. This is quite striking- felt to happen is that as soon as first twin dies, tremendous flow of blood to dead twin, causing demise of more healthy one.

Even animals have conjoined twinning- saber tooth tigers and finally we have our little cows here- Siamese cows from Niagara Falls- real pictures.

The classification of the conjoined twins nowadays is determined by where/ how the twins are joined. There has been as many as three dozen separate times. FIXED

Thorocaphagus- chest
Ormaphygaus- abdomen
head to head

about 2% of these twins are joined at the head- skull- they can share portions of the brain and blood circulation. They can be joined at top of the head, back of the head, or side to side. This is a good example of one which would even be difficult to separate by today’s standards- occupying entire occipital part of the skull, part of the frontal etc.

Classification Conjoined Twins

Thoracopagus 74%
Omphalopagus 1%
Pygopagus 17%
Ischiopagus 6%
Craniopagus 2%

For those of you who may have taken embryology here- I had the privilege of taking it with Rabbi Dr. Tendler- if you remember this the zygote divides to become the blastocysts, they are all totioptoent, if it splits during the first 7 days of gestation, monozygotic twins. Incomplete splitting= conjoined twins. Alternate theory- separation fusion-

Survival rate is pretty dismal. By the time we get to the older children, the survival rate is quite low. Very few of them will survive to their 10th/ 11th birthday and second decade of life.

Medicine of course in 2008 has tremendously change. Even in 30 years since Dr. Koop did his surgery more is available to us.

CXR, ECG, Echo, MRA, Cardia cath, Xray, liver scanning, MRI, spinal MRI, ateriography, CT with 3-D

MRA: Way of evaluating blood vessels without having to inject anything into the arteries
Incredible software that lets us do CT scans without invasive tests- can get an excellent picture of what is going on

Since the 70s, the chance of survival has improved dramatically. Surgeons now routinely separate livers, and have developed ways to cover large wounds with skin and reduce the risk of infection. Although success rates have improved over the years, surgical separation is still rare.

Having a 600 gram baby survive major surgery is something which we do routinely in major medical centers. I have operated upon 4 babies in the last four weeks and thank God they are all doing well.


-In the past, surgery was delayed until twins were 6-12 months old so that they could become stronger (Dr. Koop did this)
-Since there are now life-support systems and diagnostic tools are more sophisticated, earlier separation is more common
-Immediate separation is needed when one twin is stillborn
-Separation while twins are too young to realize that they are joined is thought to help their psychological recovery

Otherwise tremendous separation anxiety issues that we see with the older children.

These are pictures of the twins I was able to work with- Aguirre Twins- Clarence and Carl. Joined at the hip, born in a little village in the Philippines. She contacted some church groups who found some nice little lady with blue hair who lived in Connecticut who made it her life’s goal to get these babies out to get to the States. She somehow got hold of Dr. Goodridge, who was giving a lecture in Phillipines at the time- and so they enede dup at Montefiore.

[shows picture of them] both alert, awake,

Major issue: Skulls were joined- one very, very large common channel – veinous sinus that joined the two brains together. Quickly they realized it was not just separating skulls and brains but having to deal with these very, very large sinuses- very thin-walled structures. If you try to suture them, they will not hold your stitches; they will tear. So what do you do? Where do you break the skull in half? What do you do with the defect in the skull that will exist? How do you manage blood loss and anesthetic agents? Dealing with brain and fluid- central spinal fluid, cerebral spinal fluid- finally the always present danger of infection.

Using anatomic models we worked out the details of the venus and arterial circulation of the babies and finally Dr. Goodridge and I and Dr. _____ decided that instead of attempting a 20 to 30 hour sessions we would stage the operation through little operations and slowly divide the twins. This actually worked out quite well- we managed to separate them and divide them- the large sinus was divided. We took an anterior approach, separating front lobes. Sinus slightly more manageable- not as big as it was- finally on third operation able to divide the back of the skulls and separate the skulls completely.

Problem of how do you cover the bare scalp- something we have available nowadays which was not available in 70s, 80s and they are tissue expanders. This is a silastic bag filled with saline and it is attached to a piece of tubing and it is attached to a little reversoir implanted underneath the skin – whatever is available- every couple days you take a sterile needle and inject a little more, so that bag expands the skins over the bag- 20 ccs, then 50ccs, so instead of a small piece of skin you have a large piece of skin- we were able to get the entire scalp to cover over the area which was joined. This is just before the last operation.

Some of the issues that faced us as we took care of them was IV Access- very difficult for smaller child. Crososover of medication from one child to the other, fluid challenge to one caused the other to pee!

Also one had a problem with high blood pressure while the other had low blood pressure- real difficulty in adjusting mediations to keep them both in neutral positions.

This is part of the team- we had two sets of anesthesiologists, scrub nurses, surgeons.

This is two twins before the very final operation and finally they were separated and I can tell you they now live two separate happy lives. They are both in school- they no longer live in a dirt house in the Philippines. The mom was a real con artist and she now has a house in Scarsdale [laughter] and both the twins attend private schools in Scarsdale- they return to Montefiore every couple months- they have shunts for fluid that accumulates- very well adjusted- they are celebrities in the hospital at the time- and they’ve done quite well!

So the issues that face us as surgeons when we deal with these things is-

-Is surgery viable? Can we do the operation?
-Tests we have available ultrasound, MRI graphics to determine the location/ etc
-Work out details with a group of people
-Look and see whether twins are equally robust
-Quality of life is of course an important issue- I guess Rabbi Feldman and Mr. Wasserman are going to decide what are the ethical issues if they are separate vs. joined

Finally the issue Dr. Koop and Rabbi Feinstein raise is – is it proper to sacrifice the life of one twin for the other?

Bill for three day stay in hospital was $32, 000 for my wife, who just had surgery.

Bill for conjoined twin surgery- probably somewhere like 5 million dollars (they stayed in hospital for 8 months.)

Religious considerations: Parents knowing that one twin will die may object, do you go to a judge to overrule their decision, do you let them make the decision

Cultural Influences;

1. Where they live
Soviet Russia- treated as outcasts
Africa- outcasts/ curiosities

Attitudes towards disability- some parents can’t stand seeing disability in their children and do the surgery to avoid it even though children could live as one.

Some parents believe that _____.

Mr. Wasserman and Rabbi Feldman, take the stand.

Mr. David Wasserman:

Hi, I’m David Wasserman and it’s a real honor to be here speaking between Dr. Weinberg and Rabbi Feldman. Going to try to show my appreciation by being fairly brief. I’m going to be talking about issues that arise in resolving conflicts about the separation of conjoined twins in pluralistic societies- no dominant religious authority. Different personal values can lead the people involved to come to different decisions about what they want to do in cases of the possible separation of conjoined.

Whole slew of other issues involving the issue of adult conjoined twins- that tiny fraction that survive in order to make those choices themselves, but I think that’s a topic for another occasion.


1. Conflict of the interest of the neonates- no issues that separation is better for both
2. Between parents and healthcare professionals- in Anglo-American law there is no case unless someone brings it. So even if healthcare professionals and parents want something that a religious authority thinks it’s bad, it’s not going to come before the courts.

You can have one kind of conflict without the other. You can have parents or health professionals who push for separation even if there’s real questions about its being in the twins’ best interests- even if it may be the only life-saving option for both twins. And you can certainly have cases in which everyone’s agreed- consensus among people but they are wrong. Of course identifying those individuals is a contentious business.

Focusing on cases where the twins themselves have at least somewhat conflicting interest- describe that in a minute- also where the people who normally make decisions- the parents and doctors have some kind of disagreement in terms of the courts. Whether the interests of conjoined twins/ neonates can itself be a matter of disagreement. In one of the cases I’ll be talking about where separation would have brought about almost instant death to one of the twins- Maltese Twins in England- in that case the lower case held it was in the best interests of that twin who was certain to die after the separation to be separated. That itself was rejected by almost all other judges in the cases though they disagreed on a great deal else. It’s also possible that separation will be thought to be in the interests of conjoined twins despite considerable twins- in part because of the difficulty in imagining how a decent life can be lived conjoined. There are often compelling reasons for separation, but we have to be a bit skeptical- the desire to separate when very difficult to understand how possible to live a good life conjoined. In the cases that have aroused controversy- very little possibility of long-term survival.

So there are really two types of – and this is not a medical distinction- conflicting interest cases. One of them is where separation- I call symmetrical embodiment cases. The Lakewood case was not quite that kind of case because the twins had different hearts. There was a separate case, somewhat confusingly called the Lake Bird case- symmetrically embodied- no obvious way to allocate organs. The decision was made simply on the basis of the surgeon’s hunch based on which twin had the better shot at survival. The other kind of case is a case where the organs- the two twins differ in viability. This is where a lot of interesting conflicts arise- both twins can survive for some period of time, usually not very long, if not separated- if separated, one is virtually certain to die while the other can live many more years than she would otherwise have.
It’s easy to see how people can differ about these kinds of cases. In the Lakewood case, both the parents and the doctors, somewhat unusually all sought religious counsel- and the religious counsel they received was consistent, I believe. But in the later case of the Maltese twins, Jodie and Marie, they brought children to England due to the greater expertise in British hospitals in giving birth to and sustaining twins. But the parents opposed separation while the hospital strongly favored it because both twins were going to die. Matter of weeks to years- one of the twins, Jodie, looked like she could survive if the twins were separated- most of the organs were on her side of the body; she apparently had more advanced cognitive functioning (some of this is speculative; hard to tell with neonates.) Marie was conscious, but didn’t have nearly as much potential for all these things- any surgery to separate them would bring about her death quite soon- give Jodie the more viable twin- the one with greater potential of living a long life. This case was a very, very sad case because the parents fought very hard to prevent the separation. The court, the British- I believe House of Lords- I’m a little weak on British jurisprudence- they were and the less viable twin died within the hour while the other one is still alive- now in obscurity now that the case is out of the limelight.

Cases like this- cases where there is conflict among neonates and among people who decide how to perceive- one possibility is – three obvious possibilities are:

1. Health professionals
2. Parents
3. Courts

Health professionals aren’t the most proper authorities- they are critical in assessing the prospects of the twins, difficulties in surgery, but in making the proper choices- they have no special expertise. Parents are the obvious decision makers but there aren’t the same reasons in deferring to parents as there are in other situations- parents don’t have any special knowledge of the children’s needs. Now the parents of the Maltese twins said they had some kind of inchoate sense- certainly the parents didn’t have a rich particularized knowledge of these children and their needs the way they would have by older children. Also parental authority not clear because this isn’t the type of case which is clear- the children don’t’ become members of a household; they are in the hospital, need assistance to live. Since Roman times- parents had rights of life and death over their children.

Cases of severely disabled neonates- that authority was severely curtailed. Parents can’t choose death for severely disabled neonates in all but the most extreme circumstances. One reason for giving parental preference is that the parents have to live with the consequences- they have to deal with the enormous psychological consequences where one twin dies and the other survives- whole sense of themselves as parents and caregivers is implicated in the twice. Even though not usual base of parental autonomy- deferring to them in their own privileged sphere, they should have weight.

Ultimately the courts have to make these decisions- but incredibly heart.
Why’s it hard?

Firstly, anglo-american law shares a commitment to equal worth of lives. But the length of life may have a more legitimate consequence than the quality of life. Anglo-American lie doesn’t permit one person to sacrifice his life to save the other- the question is whether this is the same?
Anglo-American law makes an exception for cases of self-defense. Rarely deals with cases where aggression, or what can be construed as such, is involuntary/ blameless.

Killing- if two people shoot someone and the second shooter accelerates the person’s death by only a second, that person is guilty of murder under Anglo-American lie. But maybe in these cases loss of days, months is offset by gain of years.

There are at least three years in which the courts could construe the conflict between these asymmetrically embodied neonates.

1. See the vital organs that will keep the one alive as belonging to both twins- so that one is effectively cannibalized to save the other- that may have been the view of the parents in the case of the Maltese case- not belonging to either one in particular.

2. More viable twin is chosen because of the greater longevity of life- troublesome because we don’t usually choose among lives- but again, perhaps we do in cases of extreme disparity in length.

3. This is the one that prevailed in Maltese case- by at least one of the judges- the vital organs belong to the twin whose side they are on- these functioning organs belong to Jodie; these atrophied organs belong to Marie. To see less viable twin as essentially threatening the more viable twin by life-threatening ____ of those organs. Protecting the more viable twin against this intrusion- at least saves the courts about making judgments about quality of life.

The question that is difficult to answer is which interpretation is the best- is it really anatomy that makes the decision for us- secular courts can’t see the will of god- however much judges might be influenced by their individual religious faith.

To conclude, these are cases in which there are two kinds of conflicts that are going to remain difficult- can only be helped by the kind of careful ethical analysis that can come from non-religious and religious ethicists. But ultimately, these are going to remain hard cases.

Thank you.

Rabbi Daniel Feldman:

I’d like to thank Dr. Weinberg and Mr. Wasserman for their presentations, like to thank the MedEthics society, like to thank YU, haven’t been in this building for several hours [laughter] hasn’t changed that much. Nice to have interdisciplinary events- I know from my experience with this lecture- seeing what happens when there is a sign saying you’ll speak about something- thank Rabbi Dr. Eddie Reichman, Rabbi Dr. Taubus, as Dr. Koop said and David said these topics are beyond them and beyond me- I can only try to survey a little bit some of what has been presented on this issue- look to history, analysis and chachma on a whole. As far as Talmudic literature and halakhic literature is concerned, there’s much to say even though separation of surgical methods wasn’t discussed- wasn’t successfully performed till ______. Halakhic literature mostly addressing question of detailed halakhic question that would come up- dealing with one person or dealing with two people?

Someone named Pelimo in Mesechtes Menachos- if somebody had 2 heads, would he have to wear two pairs of tefillin? R’ Yehuda began to rebuke him; he thought it was a joke- and someone came forward and said his wife had just given birth to a two-headed baby and wasn’t sure about pidyon haben. So this changed R’ Yehuda HaNasi’s perspective on this even though Tosfos thought this was more of a hypothetical. Tosfos refers to midrashim that refer to mystically-oriented ideas.

Shlomo Hamelech confronted with 2-headed individual and as far as inheritance- so he covered the heads of them, one at a time, inflicted head on the one and wanted to see whether the head felt that pain, and it did, so Shlomo decided he was one person and he got the inheritance.

So nervous system – sharing a nervous system- ____ Mekubetzes it seems that he is one person.

R’ Shaul Nathonson- Teshuvas Halakhos Ketanos both report instances of conjoined twins- all firmly take the position that we are talking about 2 separate people here. The Talmud tells us in Mesecthes Eruvin that Adam and Chava were created as conjoined twins- you look carefully at pesukim and you see why that’s a reading of the pesukim- clearly Adam and Chava constituted two people- twins viewed as two people for purposes of inheritance. Marriage might be an intractable problem based on the circumstances- significant literature about that. Of course in a modern context, the conjoined twins that we speak about are more readily recognized as 2 separate people with 2 separate nervous systems, etc.

The question that now comes to our attention tonight is the question of performing surgery on the twins- very celebrated case in 1977 which involved Rabbi Moshe Feinstein- Dr. C Edward Koop later become the Surgeon General of the United States- two babies, baby girls called Baby A and Baby B, heart was 6 chambers- not enough to sustain for a long time both of them together- not able to hold out for a long time. But 6 chamber heart divided into 2 was not practically possible- so the question dealt with was whether it was permissible to sacrifice one child in order to give the other child hope of survival.

What this case represented- newspaper stories that appeared in “New York Times” and “Philadelphia Inquirer.” Many nurses opted out of the procedure- Dr. Koop was concerned against legal obligations- order of protection that he shouldn’t be prosecuted or charged for murder- was represented by Arnold Spector, who later became senator- couple from Lakewood, religious couple. Rabbi Feinstein, Rabbi Dr .Moshe Tendler spent a long time before coming to conclusion that the twins should be separated- unfortunately both twins died, one of them a few weeks after the first one.

Very surprisingly R’ Moshe did not publish his reasoning- in a sense fortunate and unfortunate for us. Unfortunate for us because we don’t have a firsthand account, but we do have Rabbi Dr. Moshe Tendler’s account, which is very close- but we do now have the thoughts of many different writers- some possible models of how you could come to this conclusion – there are about 6 or 7 models to decide the surgery should be performed- so we have a richer literature about it. Working off vantage point of this case.

One question to be dealt with: Are we dealing with one person or two people? If it could be ascertained that we are dealing with one person- discussion in contemporary literature- R’ Levi Yitzchak Halpern etc- one person cannot? (did he say can?) sacrifice a limb in order to guarantee long term survival.

But two distinct consciousnesses/ awarenessnesses- eventually have to assume that we are dealing with two people – potential murder of the twin that wouldn’t survive. So the first thought we might have would be the concept of rodef- someone chasing after someone else and trying to kill that person, so either the person who is being pursued or someone who sees that can kill that person- now there are obvious problems with that model. Problem isn’t necessarily the fact- could be that just trying to save his own life- some of the literature in R’ Tendler’s piece and others- two people jump out of the plane; one with a parachute and one who does. One who doesn’t have the parachute is pulling down the person with the parachute- now the question is whether he can kick away the other person in order to save his life- the assumption is that he is allowed to because the person is endangering the life of another- clearly portrays him as a pursuer- might identify him as a rodef. Lack of evil intent- lack of any intent at all- no act of awareness in what you are doing. Is one the rodef and one the nirdaf (by conjoined twins) – highly relevant to 1977 question.

R’ Moshe repeatedly asked Dr. Koop that only one body “owned” the heart, and the other was imposing upon the heart. R’ Bleich wrote an essay about this and was very unsure as to whether that was correct- even if located closer to one body, that doesn’t mean one “owns” the heart- perhaps more logical to say that they share the heart. To identify one as the pursuer and the other as pursued is very difficult.

Third model we could possibly look at is the model of abortion and abortion literature- mysterious passage in Talmud and even more mysterious passage in Rambam- some of these ideas may or may not be useful depending on how we understand this. Talmud tells us in Mishna Ohalos quoted in Sanhedrin that if mother has not yet given birth and is in significant distress, baby must be killed to save the other. But if the baby has crowned, then one doesn’t have the ability to choose lives- mother vs. baby. The Talmud says it’s not really rodef- the “heaven is doing the pursuit here.” Basically God who is the rodef- the baby doesn’t have that status; two lives struggling for life- we cannot choose.

The Rambam seems to invoke the principle of rodef in explaining this concept of abortion and basically says before the baby is born it is k’rodef- which itself is a chiddush, because otherwise just a question of the lack of complete status of life and then, once the baby is already born, then the Rambam says we’re not going to do it because “that’s the nature of the world” – different people competing for space and resources- a lot of discussion about what the Rambam means by this. My parents are here tonight- 13 approaches having to do with birth control and this Rambam (did I hear that right?)

R’ Tendler discusses this Rambam as the core basis of R’ Moshe’s thinking- says that pre-birth and after birth we are basically dealing with two people- two people struggling for life under natural circumstances- why should we allow it before the birth takes place- the mother is the source of life; that’s why we give an edge to the mother’s life. So in first case, child depends on mother, if mother is in danger we save her- in second case, child is independent. So it’s dependence vs. independence- so perhaps it could be applied to her. In that case we can look at both babies- one baby dependant for life upon the other, so therefore able to prefer that baby.

Another model is a well-known passage that really appears in Talmud Yerushalmi and Rashi in Sanhedrin in discussing abortion references it- if you have a group of Jews and then a group of bandits comes and attacks them- give us somebody and we’ll kill them. So the halakha is that the group can’t turn over one of their band – prohibition against murder, against handing over someone to death- can’t do this even to save all of their lives. “Yehareig v’al ya’avor”- however, there are circumstances in which it is permitted- passage in the Bible in Samuel 2- if they don’t just say give us one person but rather give us so-and-so so we can kill him, the Talmud seems to say that that person is “designated for death” because that person is going to die anyway. But there is a very significant issue which might make this stop from being relevant here. See, if we stopped there it would make a very good source for the two babies- turn weaker baby over to surgery anyway, like “designated to death.” However, the problem is that there is a debate over there in the Talmud as to whether that is there. Raish Lakesh vs. R’ Yochanan- Raish Lakeish says that it has to be a guilty person, not an innocent person- he has to have done something that makes him worthy of death, “designated for death.” If that’s the case, the baby has done nothing to be “designated for death.” So question is who do we pasken like- machlokes in Ran and masechtes yoma- Rambam(n) follows view of Reish Lakeish and Rama quotes both opinions (laughter.)

We’re not going to be cavalier in choosing.

We have another model- one of the Roshei Yeshiva in Ponovetch- R’ Baruch- he heard that it was because of rodef, but rodef is a little bit of a difficult principle to use- “ein doche nefesh l’fnei nefesh”- so how can you use the concept of rodef here? Really we have to come from a whole different approach- not about rodef; it’s a whole different idea. Really the idea is that we have concept called a nafel- a baby who is not really viable, able to survive 30 days- doesn’t have the status of a fully viable human being- something not permissible to kill but whole different status- nafel could perhaps be sacrificed to save a viable child. So then question of babies more than 30 days old! But perhaps have to expand definition- we have technology to add us- still be a nafel baby because it is only living through artifical support. So maybe baby having to rely on other baby for all of its functions, couldn’t live by itself- so viable child takes precedence. Rabbi Bleich does not approve of this because he says that usually in halakhic literature takes other approach- halakhic literature has pretty much not considered these children nafel for mourning rights/ kevurah, pidyon haben so he doesn’t feel literature supports this approach from that perspective.

There are other sources that kind of do support this idea of nafel or tereifah- tereifah is a person who at any point develops a condition where he won’t live longer than a year- one does kill a tereifah he is not viable for the death penalty- R’ David Cohen recently mentioned to a firend of mine- Meiri in commentary to Sanhedrin- normally if they say give us somebody- but if the person happens to be a tereifah, someone who was going to die anyway, Meiri has a very big chiddush that he could do this. Nodeh Yehuda has a very big debate about this and whether we could treat this person differently.

Footnotes to Meiri- not actually killing- maybe you’ll turn him over – little bit of an edge to a tereifah. As much as we feel uncomfortable ranking 2 lives against each other- you do see a discussion of ranking a tereifah vs. other person’s life- perhaps basis to see those two lives as different- 95 year old person to save 2 year old person- but here we are talking about actual lack of viability, so perhaps a fifth model we could deal with- whether we call it nafel or tereifah.

Sixth model that you could use is the model that Rabbi Bleich prefers and points out that R’ Moshe Feinstein wrote about this elsewhere, not by the conjoined twins- group of bandits need to turn over somebody- why can you turn over someone who is named vs. someone who is guilty of something? Two different types of pursuit-

1. Group of people want to turn over the person (they are pursuing him)
2. He is causing them to die (by staying in their midst)

So that’s a mutual pursuit- that would be assuming everything is equal but R’ Feinstein notes that if you can give an edge to one or the other- in this situation, they are depriving the man of temporary life that he will have in order for them to have longer lives- two mutual pursuers are not equal- so then we can legitimately give an edge to the long-term life and perhaps that is what R’ Moshe was utilizing- they can be viewed as mutual pursuers, two babies mutually pursuing each other- long term life vs. short term life maybe one could give an edge to the more viable baby.

One final model- discussion secular philosophers use- Dr. Shatz will correct me if I am wrong- missile coming toward a group of people and you can deflect the missile but you will cause one person to die in so doing- this is a discussion that philosophers talk about and Chazon Ish discusses this also. R’ Moshe Weiss says this is a proof that Chazon Ish was a Rishon living in 1950- he says it’s permissible to move a missile so that one person dies to save the others. Because you’re committing an act of hatzalah, saving, not murder- so your act is not an aggressive act- therefore something we are allowed to do- even though essentially causing death of one baby- acting purely to save the life of one baby- perhaps comparable to this case of moving the missile away from one baby but will kill the other person- case R’ Moshe dealt with-

Cases could get even more complex. The fact that we have many different models to figure out what R’ Moshe is thinking- also question when twins have grown up and are deciding on their own- whole new Pandora’s box of questions- basis for whole other discussion- end by saying that I think we look at this question from religious/ secular perspective- different vantage point for the two.

Religion has the benefit of believing that God is running the world while a secular government may not have that same perspective- therefore our laws are there to ensure the benefit of as many people as possible- what’s best for society as a whole- while a religious perspective is more behavioral in nature- responsibility to do what God wants me to do- world that’s as good as possible- tremendous mandate to heal, all used to define how we behave- ultimately have to define what are our commandments, obligations with knowledge that God is controlling the world- basically to very briefly recap we saw there was much discussion/ literature about whether we are dealing with one person or two people. Then looked at different models about this (all approach it from different angles.)

Again, the issues are beyond all of us- we can only hope that through continued efforts we hopefully are able to act properly and justly through wisdom of…


I want to thank all the speakers and the floor will be open to questions.

QUESTION: This one is for Dr. Weinberg- based on improvements in stem cell technology, especially at Einstein where they can regrow damaged nerve tissue- could they be used in separation of conjoined twins-

Absolutely- issues such as the Lake Bird twins in the 70s would no longer be a major problem- I think with the advanced medical research some of the issues we deal with would no longer be-

QUESTION: Regarding the case where you have 6 chambered heart- what was the anatomy of the heart- two bicuspid hearts, ventricles?

I don’t know the anatomy but _____.

QUESTION: In the case of the missile- would the person

Chazon Ish’s approach is very, very innovative and not at all clear that others would agree with that. Presumably the person has the right for self-defense so could indeed result in a clash of priorities- the one who now finds his life threatened- very logically could result in that- not necessarily ______

MY QUESTION: Doesn’t exactly parallel- Chazon Ish example with the missile is saving many people vs one person dying; here it is one and one. Does it matter- the quantity of people in that example? As in, perhaps the Chazon Ish is suggesting that if there is a large number of people, then it is all right to kill one person to save all the others. However, if it is one and one…

Very much is important- there we’re talking about saving a group of people vs. one person. Here the assumption is saving both people or no people, hence it parallels.

QUESTION: Within American law, who has the right to decide what to do with the baby- is that the parents or the courts?

Once the issue is before the courts- the parents have- it’s not – a decision about life and death is not within the area of parental discretion. A lot of latitude to withhold care to severely disabled neonates or turn off life support for them- at the time seen as sort of an extension- abortion- now becoming very wider group of people who think that the prospects for women with disabilities are much greater- danger of stigma is terribly grave- parents in fact have much less discretion now – normal healthy babies. But that was always a kind of shadowy exception to the rule that parents can make- most decisions children make about their children don’t deal with life and death so explicitly. Certain way they live, etc, -But even that is subject to legal oversight. How close the scrutiny is with decisions that could often go beneath the radar.

QUESTION: Who speaks for the neonate- triad of medical force, parents and courts? Burden of responsibility falls on parents to take care of that baby- supposed to do what is best for the baby without parental/ medical bias. Unfortunately that ends up in the courts, which does not have any medical knowledge or parental bias so you have the worst of both worlds (laughter)

I don’t see anything to disagree with your general characterization!

MedEthics Boardmember:

I want to thank everyone for coming- recordings will be up and a bus will be leaving for Beren at 9:00.


Anonymous said...

Chana,thank you so much for these fantastic notes! I learned a lot.

Happy Purim!

Anonymous said...

Very useful notes!
Thanks Chana!

Anonymous said...

I once was learning Daf Yomi in the pediatrician's office, while waiting for him to examine my daughter. He came in and ask me what I was studying, and it happened to be the sugya in menachot about how a two-headed man puts on tfillin. I was a little sheepish, but told him what it was and he became very animated and started asking questions. It turned out he had had such a patient as a young doctor; presumably really conjoined twins.

Anonymous said...

Simply fascinating! Thank you so much for these notes.

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