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Shabbat Parashat Mishaptim | 5768

Autopsies in Halacha

Ask the Rabbi



Question: Please give me Talmudic and halachic sources on autopsy along with your opinion.

Answer: There is more literature on the topic and more variations of cases than we can deal with in this forum. For further source material and background, see Encyclopedia Hilchatit Refu’it (Steinberg) on Nituach Hamet.

A few Talmudic sources indicate that it is generally forbidden to perform autopsies yet may leave the door open for some forms of investigating the deceased’s body in certain cases. The gemara (Bava Batra 154a-b) discusses an adolescent who sold inherited property and died, and a dispute arose as to whether he had the physical signs of maturity necessary to make the sale binding. The gemara says that the body check is nivul (degrading) and his relatives were forbidden to carry it out, but it might be justified for the buyers, whose purchase was challenged, to have it done. The gemara (Chulin 11b) in discussing whether we can rely on probabilities, discusses the fact that we kill a murderer even though it is conceivable that the victim previously was a treifa (had a mortal physical flaw). The gemara suggests that we would be able to check the corpse to save the murderer despite the nivul involved. A final source is a gemara in Arachin (7a) that when a woman dies in advanced labor, a post-mortem cesarean may be done to extract the baby.

Besides the problem of nivul, there are also Torah-level issues of pushing off burial or not burying (parts of) the body, but we leave those issues to other forums. (See Rav Yisraeli’s thoughts in Amud Hay’mini, siman 34. [We have begun a series on it in this week’s Moreshet Shaul.])

Almost all agree that an autopsy may be performed if needed for pikuach nefesh (to save a life). However, it is questionable what constitutes pikuach nefesh, something that both poskim and the general medical ethics community have debated. The first responsum on the topic, the Noda B’Yehuda (II, Yoreh Deah 210), deals with doing an autopsy to learn from possible mistakes made during an operation to prevent their repeat in the future. He says that this is permitted if there is a sick person before us who can benefit from the information. A general hope that the information might someday be useful is insufficient. The Chazon Ish (Yoreh Deah 208:7) stresses the element of the chances the information will save lives in the short-term, as if one considers any theoretical future need as pikuach nefesh, countless perceived needs would regularly push off Shabbat.

Other justifications of autopsies are controversial from a fundamental perspective. The aforementioned gemara in Bava Batra implies that one can cause some level of nivul in order to safeguard the monetary rights of non-relatives of the deceased. The Tzitz Eliezer (XIV, 83) uses this idea to allow a hospital that lent a costly pacemaker to a patient to posthumously cut his skin and remove it. However, this would be possible only because the deceased may have had an unfulfilled obligation (Binyan Tziyon 170). It may also be crucial if the deceased agreed in his lifetime to allow himself to be disgraced after death for a certain reason (ibid.). Consequently some rule that if the deceased acquired life insurance that will be paid only if an autopsy is performed, this can be done (see discussion in Encyclopedia Hilchatit Refu’it (Hebrew) vol. V, p. 623). Finding information for criminal investigations is another issue which is not clear-cut and depends on the case’s particulars (see ibid. p. 629)

We have not discussed all the issues or given clear practical guidelines. The general rule is that religious Jews do not allow autopsies and when a specific issue arises, “rabbis with broad shoulders” should be consulted. We do not want this abbreviated survey to change that reality.

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Dedication

This edition of Hemdat Yamim is dedicated in loving memory of

R ' Meir ben Yechezkel Shraga Brachfeld

o.b.m

 Hemdat Yamim is endowed by Les & Ethel Sutker of Chicago, Illinois in loving memory of

Max and Mary Sutker

 and Louis and Lillian Klein, z”l.

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