Bankruptcy: A Halakhic Perspective

Rabbi Yitzchok A. Breitowitz

The social phenomenon of bankruptcy is one that is increasingly familiar to many Americans. In the past decade, major companies previously thought to be virtually invulnerable - airlines, hotel chains, real estate developers - have found it necessary to seek relief under federal bankruptcy law. In a given year, there are more bankruptcy cases filed in federal court than all other cases put together. As is true for all issues of social life, bankruptcy too is subject to a Jewish perspective. The central issue I would like to address is whether it is morally proper for a religious Jew to try to escape payment of debts by invoking bankruptcy relief. ¹

At the outset, it must be recognized that the Torah considers the obligation to pay debts as absolute. There is, of course, a mitzvah in the Torah of giving charity (tsedokeh) and the Rambam tells us that the highest form of charity is making a loan to somebody because a loan is enabling someone to achieve self sufficiency. Therefore, according to the Torah, loans were not business propositions, loans were not investments. Loans were acts of charity, benevolence and generosity. That is form of tsedokeh. At the same time, however, the debtor's obligation to pay is considered to be an absolute obligation and there is no mechanism in halakhah that is tantamount to escaping your debts by filing a bankruptcy and obtaining a discharge.²

The Morality of Seeking Bankruptcy Relief

Given the fact that halakhah does not recognize the concept of discharge, which means you're liable no matter what, may a halakhically committed Jew ever file a bankruptcy petition? In other words, am I allowed to file bankruptcy, get a discharge and not pay my creditors if under Jewish law one always has to pay his creditors?

As is true in many matters, there is a diversity of opinion. Some opinions say that to invoke a bankruptcy discharge is theft; since under Jewish law you still owe that money, not paying it back is illicit. Other opinions say that even though halakhah does not recognize a bankruptcy discharge in a pure halakhic system, under the system that we live in one is permitted to utilize it. There are two different theories that are given. One theory is based on the Talmudic rule called "Dina D'Malchuta Dina." Now, this is Aramaic for the law of the land is halakhically the law that we must follow. That's a principle that needs a great deal of explanation. Obviously, the rule doesn't mean that secular law supersedes religious law in every respect. If secular law were to say don't keep the Shabbat, keep Sunday, we obviously wouldn't listen to it. If secular law would say that marriages can be terminated by civil divorce, we would not listen to that, we still have the requirement of get. The principle of Dina D'Malchuta Dina is limited to one sphere only. It does not apply to ritual law, it does not apply to family law, it applies exclusively to monetary matters. That regarding monetary obligations, regarding property rights, civil law is considered to be paramount. Thus, for example, it is against Jewish law for a person to evade the payment of income taxes. If civil law says you must pay taxes, then you're not only violating Title 26 of the United States Code, you are violating halakhah, when you engage in tax evasion. When it comes to ritual law, clearly secular law has no say in the matter at all but when it comes to monetary obligations, Dina D'Malchuta Dina. So, the argument goes, since bankruptcy law is a law that pertains to property rights and the like, the principle of Dina D'Malchuta Dina allows you to invoke a bankruptcy discharge.

There is yet another theory that would allow the same thing, and that is what I would call the "rules of the game" theory. If I lend you money and am aware of the fact that under American law there are escape mechanisms, in effect, I have agreed to put myself in that system. For example, if we were to enter an express agreement that if I lend you money you don't have to pay me in the event of a bankruptcy, that would be our agreement, that's our contract. Taking this one step further, it may be asserted that every contract that is made is made with the knowledge and understanding of the prevailing rules that apply in this game and, therefore, halakhah would permit a bankruptcy discharge not as a matter of bankruptcy per se but as a matter of a term that was implicitly incorporated in the background of the agreement. Therefore, once again if we could have made this expressly part of our agreement, it could be made implicitly part of our agreement. In short, there are two distinct rationales for permitting the invocation of bankruptcy relief: (1) the principle of Dina D'Malchuta Dina which enables secular law to trump religious law in the monetary sphere; (2) implicit incorporation as a term of the agreement.

I would suggest there are some practical differences between those two theories. There is a big difference between declaring bankruptcy on money you owe the bank and declaring bankruptcy on money that you owe your Aunt Tillie. If the justification rests on the concept that people who lend know the rules of the game, this may apply to a commercial loan but does not necessarily apply to your next door neighbor or your friend who may not even be aware of bankruptcy as an option of escaping. Therefore, if we were to adopt the first theory of Dina D'malchuta Dina, nonpayment following bankruptcy would be permitted no matter what the loan or the creditor. If permissibility hinges on the second theory, however, one would have to pay very close scrutiny to the nature of the creditor's sophistication and the like. This approach would say that essentially when a knowledgeable sophisticated lender lends you money, they are lending you money against the backdrop of the rules of the game. So, when you take advantage of those rules, you are doing nothing more than what the contract by implication allowed you to do. By contrast, however, when you're dealing with an Aunt Tillie or the like, who is not aware of those rules of the game, you would not be allowed to invoke bankruptcy. Of course, this would also mean you could never invoke bankruptcy against people who are creditors not by choice. For example, if you ran somebody over they are also your creditor, but since they never negotiated for that status you would not be permitted under this theory to invoke bankruptcy relief against them. As a practical matter, you could go through a bankruptcy but halakhah may require that you reaffirm your commitment to resume payments to certain creditors because it would be immoral and against halakhah to deprive them of their rights.

Conclusion

In a secular system, bankruptcy and financial difficulty are regarded as a two-way problem between a debtor and a creditor; in Judaism it is regarded ultimately as a societal problem. Under a Jewish society if a person finds himself in a very difficult situation, it is not just his own tough luck. Rather there is an obligation on the community to support people who have fallen on hard times. Indeed, the Talmud states that the obligation of supporting people is not merely to put them on a subsistence level, but to support them in the manner and the standard of living to which they have been accustomed. If the rich fellow who became poor was used to having a servant and a chauffeur and a valet, or a horse and a driver in those days, the obligation of tsedokeh is to give that person a horse and a driver, and a valet and a chauffeur. Now, obviously there are going to be priority problems. If there's not enough to give bread to give everybody who needs it, then you're not going to give this guy a chauffeur. But, assuming that there is a sufficient balance in the charity fund, then we even use it for that.

The emerging pattern is therefore the following: on one hand, secular law is more generous to the debtor vis-a-vis the relationship to the creditor. The secular law gives the debtor more escape hatches than does Jewish law. Jewish law basically says you have no way of escaping the clutches of the creditor. But that has to be understood in tandem with the fact that the communal responsibilities toward the debtor are much greater. Essentially, what a secular bankruptcy tells the creditor is, you Mr. Creditor suffer the risks of the debtor's bad fortune. You lent him the money, if he escapes that, you suffer the loss. Halakhah says the loss is not going to be suffered by the creditor but the loss will in effect be shared by society as a whole. It's really the theory of loss spreading like insurance. Insurance is often described as a loss spreading mechanism, that instead of one person suffering a catastrophic loss, all of society through premiums bear a little bit of that loss. I would describe the halakhic debt collection system that way as well. Which means, if you only look at it in terms of a creditor and a debtor, it looks like we have a fairly hard headed system. Debtor has no means of escape. But if you look at the total picture in terms of societal obligations, then you can actually see that it's really a very sophisticated loss sharing mechanism a system that is profoundly more responsive and compassionate to the plight of poverty and difficult circumstances.

Indeed, historically, Jewish societies (when there was self government during the Middle Ages) had innumerable social welfare institutions that took care of people's needs in a very responsible, compassionate way, institutions that were supported by taxes that the Jewish communities would levy on the inhabitants of those communities. And even today, there is a mitzvah upon us to give at least 10% of our income to charity and it is laudable to give up to 20% if you're able to afford that. (In fact Orthodox Jews often get audited by the IRS, because the average charitable contribution level in the non-Jewish world is considerably less than 5%. So, the IRS is not used to that standard of giving.)

In truth, this illustrates an essential proposition concerning many of the so-called hard line teachings of Judaism. Whenever you assess any particular aspect of Judaism, you have to look at the parts as part of an integrated whole and not just isolate the single straits, taken out of context. In Judaism, as in life, let us beware of unfounded generalizations based on incomplete information. May our recognition of the vast riches of our Torah spur all of us to greater commitment to learning and observance.

Footnotes

¹ The primary reason individuals file for bankruptcy is to obtain a discharge. Under Title 11 of the United States Code, a debtor who files for bankruptcy will usually receive a discharge wiping virtually all of his debts off the slate. Certain debts, however, may continue to survive, e.g. alimony, child support, student loans, most taxes, and criminal fines such as traffic tickets. See 11 U.S.C. §523. As will be noted, halakha neither recognizes the concept of discharge nor the idea of a statute of limitations that says that if a creditor fails to act by a certain time, he is barred.

² Nevertheless, two notable protections that debtors enjoy under halakha are: (1) protection from creditor harassment - it is prohibited for a creditor to put pressure on a debtor under circumstances where a debtor is unable to pay (the rabbis of the Talmud were so meticulous about this that a lender would not even walk by his debtor's house because the debtor may feel a pang of embarrassment or shame); (2) certain property is left to the debtor and exempt from debt collection, e.g., a 30-day food allowance, one year's worth of clothing, tools and implements needed for a trade or business (including computers, medical equipment and the like), and funds that were received as charity. Nevertheless, the debt per se never goes away and if debtor wins the lottery 20 years later, creditor may go after him.

The Use of Cryopreserved Sperm and Pre-embryos In Contemporary Jewish Law and Ethics

Richard V. Grazi, MD Corresponding author: Richard V. Grazi, MD Division of Reproductive Endocrinology Maimonides Medical Center Brooklyn, New York 11219 FAX: 718-972-5871

Joel B. Wolowelsky, PhD Department of Jewish Philosophy Yeshivah of Flatbush Brooklyn, New York 11230

Abstract

We report here on the use of cryopreserved sperm and pre-embryos in contemporary Jewish law and ethics (Halakha). In general, Halakha welcomes the use of these cryopreserved materials to the extent that they are used within the context of a traditional marriage or as the only alternative to procreation within an anticipated marriage. It does not approve of electroejaculation for retrieval of sperm from brain dead individuals. Contrary to the position of the American Fertility Society, it rejects the use of a husband's cryopreserved sperm after his death without his explicit approval. Halakha accepts the position increasingly adopted in secular society that the genetic father is not considered the legal father of a child born from sperm inseminated or a pre-embryo implanted after the donor has died.

Introduction

In 1990, the Ethics Committee of the American Fertility Society¹ published a comprehensive reaction to the Roman Catholic Instruction on Respect for Human Life and the Dignity of Procreation.² In general, the Instruction argued from the perspective of its religious tradition against the moral legitimacy of most new procedures; the Ethics Committee, arguing from the consensus of contemporary society, found these procedures to be morally acceptable.

The Ethics Committee rebuffed the Instruction's general conclusions because it saw assisted reproduction "not as a replacement of sexual intimacy, but as its logical and technical extension.... The Committee believes that the Instruction, in its laudable effort to avoid mechanizing marriage and procreation, has too easily accepted natural procedures as morally normative." The Ethics Committee³ recently issued a restatement of its position, reaffirming its general approach and investigating additional ethical concerns of Assisted Reproductive Technologies.

There is a misperception among some professionals involved in assisted reproduction that all conservative religious systems have identical attitudes on these matters. We^4-7 have reported elsewhere on the position of Halakha (traditional rabbinic Jewish law and ethics) on various issues that relate to assisted reproduction and present here a report on recent halakhic discussions concerning the use of cryopreserved sperm and pre-embryos (pre-transplanted embryos fertilized in vitro). Religious deliberations generate and contribute to public debate on the issues, much as they each compete, in a sense, in determining public policy.

The Instruction presents its version of revealed religious truth, while the Ethics Committee articulates what it considers to be secular societal consensus. Yet religious presumptions permeate large segments of apparently secular thought, and different assumptions and perspectives do not preclude a meaningful dialogue. Indeed, such dialogue is essential not only in developing public policy, but in generating one's personal principles. As Dans⁸ observes, "Reproductive technology raises fundamental questions about the nature of human relationships and what limits, if any, should be placed on human procreation. Physicians ... must define where they stand personally and professionally on these issues."

Halakhic Judaism

Like Roman Catholicism, Halakhic Judaism looks to its religious sources rather than public consensus in developing its moral positions. It posits a dual legal structure, asserting a universal human morality, which it sees as binding on all people, and a specifically Jewish system, which is generally more stringent but which is applicable only to Jews. The basic sources for the investigation of the traditional Jewish position on any ethical or legal issue are the Bible, the Mishna and Talmud, and universally accepted codifications such as Maimonides' Mishneh Torah or Karo's later Shulhan Arukh. Some issues associated with artificial reproduction have been discussed from Talmudic through contemporary sources, and Hebrew and English summaries of these discussions exist.^9-11 But most of the current issues center on problems that arise from applying new technologies, and these must be addressed by contemporary rabbinic scholars. Unlike the situation in the Roman Catholic community, halakhic rulings on current issues cannot be promulgated by any central authority, as there is no formal hierarchical structure to the various rabbinic authorities and courts currently functioning.

Positions on prevailing issues are developed by circulation of responsa (rabbinic rulings) to questions posed to various rabbinic authorities. As Lichtenstein¹² notes, "A sensitive posek [halakhic decisor] recognizes both the gravity of the personal circumstances and the seriousness of the halakhic factors.... He might stretch the halakhic limits of leniency where serious domestic tragedy looms, or hold firm to the strict interpretation of the law when, as he reads the situation, the pressure for leniency stems from frivolous attitudes and reflects a debased moral compass."

Collegial review and community acceptance eventually allow for specific opinions to emerge as dominant. Yet, even when one view surfaces as authoritative, individual rabbis or layman will often defer to their local authority, whose position is considered decisive.

Assisted Reproduction in Halakha

Like the Roman Catholic Instruction, Halakha considers natural marital procedures to be morally normative; but it does not regard them as morally absolute. Thus, abandoning the normative approach to procreation must be weighed against other moral imperatives. (In Halakhic Judaism, this judgment is relegated to the rabbinic authorities, not the individual conscience.) Accordingly, the religious obligation to procreate can sometimes outweigh the imperative to maintain natural procedures and AIH (artificial insemination with husband's sperm) or IVF (in vitro fertilization) might be allowed to overcome a fertility problem. Thus, as a matter of principle, Halakha rejects the all-encompassing declaration of the Instruction that conception must be "realized in the conjugal act wherein the spouses cooperate as servants and not as masters in the work of the Creator, who is love."

This is not to say that Halakha fully embraces all aspects of assisted reproductive technologies. For example, it has strong reservations about any use of donor gametes, although some halakhists are willing to consider allowing it under certain circumstances. Unfortunately, halakhists often express widespread distrust of the medical establishment's integrity and a fear that foreign sperm will be added to or substituted for that of the husband in order to insure a successful insemination. This can usually be alleviated by establishing a good relationship between the doctor and the patient's halakhic authority.

There is a reluctance to intrude into the private marital relations of the couple or to allow masturbation to obtain sperm for testing or insemination. Therefore, most halakhists insist that a full workup of the wife be conducted before the husband's infertility is examined, and that all other therapies be attempted before IUI (intrauterine insemination) or IVF with the husband's sperm is attempted.

Jakobovits¹³ summarizes the hierarchy of preferred methods of sperm collection from the husband for testing or insemination procedures. Most preferred is collection of the sperm from the vagina following normal intercourse. If that is impossible for technical or psychological reasons, the sperm may be collected following coitus interruptus. If that is impractical, the sperm may be collected by use of a condom or a collecting receptacle placed intravaginally. But if, as a practical matter, all these methods cannot be used, the sperm may be obtained by masturbation, preferably done by the doctor using a mechanical stimulator, although self-stimulation can also be allowed. (Roman Catholicism considers use of a perforated condom during natural intercourse to be the only acceptable method of obtaining the husband's semen for fertility testing and appears to disallow even AIH, although McCarthy^14-15 has argued that it is a "solidly probable opinion in Catholic moral theology" that under certain conditions artificial insemination with the husband's sperm might nevertheless be allowed.)

Health professionals who are not personally familiar with (or committed to) the limitations that are integral to their patients' religious commitments can be incredulous that such restrictions could be allowed to frustrate or complicate the fertility therapy if the couple had a real desire to conceive. Such value judgments have no place in the patient-doctor relationship. Fertility therapy, like all legitimate medical therapy, must address the patient as a whole. The religious commitments of a patient may be at the core of his or her personal identity; understanding these commitments can help the physician construct a therapy protocol best suited for the patient at hand.

Cryopreserved Sperm Within and Without the Marriage Bond

While some halakhists would prohibit even AIH, the overwhelming consensus is to allow it if it is the only way for a married couple to have a child, and there would appear to be few new halakhic issues involved in cryopreserving the sperm before the insemination. Indeed, it may solve certain halakhic problems. For example, halakha prohibits intercourse from the beginning of a woman's menstrual cycle until she immerses in a ritualarium (mikve) a number of days following its cessation. If the woman's cycle is such that insemination must be done at a time when intercourse is prohibited, using cryopreserved sperm allows a specimen to be obtained using a condom during regular coitus rather than through masturbation, which is generally less preferred. In addition, cryopreservation allows one specimen to be used for a number of inseminations.

But Bakshi-Doron¹⁶ prohibits an unmarried man from cryopreserving his semen in anticipation of chemotherapy that might leave him sterile. Such a procedure is allowed, he argues, only to fulfill the halakhic obligation to procreate. Inasmuch as an unmarried man cannot yet be considered bound by this obligation, he argues, he cannot be permitted to secure the semen by masturbation. (It is not at all clear that his ruling would apply to some future possible procedures not yet technically feasible, such as removing spermatogonial stem cells by biopsy and then injecting them into his testes after the chemotherapy, or cryopreserving an unmarried woman's ova harvested before she undergoes hysterectomy.)

Malakh¹⁷ rejects Bakshi-Doron's argument, noting that while the obligation to procreate should optimally be fulfilled with one's wife, post factum it can be fulfilled outside of a marriage. An unmarried man is clearly under the obligation to procreate and therefore should be allowed to procure and cryopreserve his sperm towards that end. Avraham⁹ quotes Auerbach, who, while seeing no basis for a halakhic distinction between married and unmarried men in this matter, personally feels that in either case such a procedure runs counter to general halakhic ethics. Sushard¹⁸ and Kurtztag¹⁹ dispute the existence of any prohibition, even for an unmarried man. They argue that masturbation is allowed for any legitimate and compelling reason, a criterion clearly met by a bachelor facing chemotherapy that might leave him infertile. (Sushard¹⁸ quotes D. Feinstein as concurring.)

While there is no unanimity on the issue, it is clearly within the bounds of halakhic ethics to allow an unmarried man facing chemotherapy to store his semen for use after his marriage. There appears to be no current possibility of legitimizing such a procedure within Roman Catholicism.

Retrieval of Sperm from Brain-Dead Individuals

Ohl²⁰ notes that brain death is an increasingly common situation in which electroejaculation for retrieval of sperm is requested. Such requests have come from the wives (widows) or girlfriends of the brain-dead person as well as from family members who want to preserve the "bloodline" through some subsequent artificial insemination. It is doubtful if such a procedure could be allowed halakhically, as it is forbidden to derive any personal benefit from a corpse. The only exception is a life-saving procedure, such as transplanting organs; retrieving sperm would not fit under this rubric.

Jakobovits²¹ has summarized the rabbinic debate on whether or not brain death constitutes halakhic death. Those who hold that brain-dead people are not yet halakhically dead would place them in the halakhic category of gosses, a person on the verge of dying. A gosses may not be touched or moved for anything that does not relate to its immediate care, ruling out the possibility of electro-ejaculation for retrieval of sperm.

Post-mortem use of Cryopreserved Sperm

Halakha, unlike American secular law, does not recognize the right of a court to create legal parental relationships between genetically unrelated individuals. Adoption may establish legal obligations on the parties, but it does not establish halakhic filial or sibling relationships. On the other hand, Halakha recognizes paradigms in which genetic realties are considered irrelevant. For example, conversion is considered such a radical personal transformation that previous legal bonds and relationships are halakhically severed. Theoretically, siblings who convert could marry each other (although this was prohibited rabbinicly for reasons of public propriety). In the case of an intermarriage, the non-Jewish genetic father is not considered the halakhic father of a child born to his Jewish wife. Such a child is Jewish and is considered halakhically fatherless.

Some halakhists have argued that physical intercourse is a sine qua non for establishing halakhic relationships, suggesting that a child born through either artificial insemination or in vitro fertilization has no legal relationship to its genetic father. However, the current consensus is that such a child has the same relationship to its genetic father as if the conception had been effected through natural intercourse. Nonetheless, Yisraeli,²² one of Israeli's leading contemporary halakhists, points out that when cryopreserved sperm is used, the child has no relationship to the father if the insemination is done after his death. He²³ subsequently extended this ruling to frozen embryos implanted after the genetic father had died. (While he does not address the issue, it would seem that his logic would apply to a child born from a cryopreserved ovum fertilized after the death of the donor, assuming that such a procedure becomes technically possible in the future.)

A conclusion identical to that reached by Yisraeli is mandated by the United Kingdom's Human Fertilisation and Embryology Act (HFEA) 1990,²⁴ which legislates that "Where the sperm of a man, or any embryo the creation of which was brought about with his sperm, was used after his death, he is not to be treated as the father of the child." The Uniform Status of Children of Assisted Conception Act²⁵ proposes the same position. Morgan and Lee²⁶ report that this provision was inserted in HFEA to ensure that estates can be administered with some degree of finality. A similar logic motivated Yisraeli,²² who argues that any other conclusion regarding posthumous children could preclude finality to a deceased's status as "childless," an unacceptable halakhic situation. Morgan and Lee note that s. 29 of HFEA extends this ruling to questions of incest and prohibited degrees of marriage. Yisraeli's²² ruling likewise extends to these areas.

Yisraeli²³ also rules that one should assume that a man would want his cryopreserved sperm (or pre-embryos) to be used only by a man trying to procreate children who are halakhically his; hence once he has died there is no legitimate possible use for the cryopreserved material unless he has explicitly expressed his wishes to the contrary In his view, Halakha therefore mandates that the sperm or pre-embryos be destroyed, any contrary wishes of the widow or anyone else notwithstanding. This stands in contrast to the position of the American Fertility Society³ that "The fact that a spousal relationship existed before the preservation of the semen specimen and before the husband's death" makes posthumous insemination ethically acceptable.

The Code of Practice that accompanies the Human Reproductive Technology Act (1991) of Western Australia and the German Law for the Protection of Embryos (1991) prohibit knowingly using sperm in an artificial fertilization procedure after the death of the gamete provider. The Constitutional Council of the French Republic²⁷stipulated that the man and woman of constituting the couple requesting artificial insemination or in-vitro conception should both be alive." Fadel²⁸ notes that in Islamic law assisted reproductive technologies are allowed only in the context of an intact marriage, during the life span of the marriage when both partners are alive.

The Legal Status of Cryopreserved Pre-embryos

Couples undergoing fertility therapy often cryopreserve pre-embryos for future use. At times, such as in the case of subsequent divorce, the couple disagree as to the disposal of the cryopreserved material. For example, in Davis v. Davis²⁹ the central issue in the divorce case was the disposition of seven pre-embryos which were cryopreserved following the couple's last IVF attempt. The wife wanted to implant them over the objections of her estranged husband.

The trial court held that these seven frozen entities were human beings, that life began at the moment of conception, and that the Davises had accomplished their goal of creating life. The court further held that the state had an interest in protecting the "life" contained in the pre-embryos, and, to promote their interest, awarded the wife temporary custody so that she could implant.

The Tennessee Court of Appeals³⁰ reversed, holding that the pre-embryos were not persons entitled to the protection of the court. In this, the Court reached a conclusion identical to that of Halakha.

The Ethics Committee of the American Fertility Society^{1, 3} holds that the pre-embryo deserves respect greater than that accorded to human tissue because of its potential to become a person but not the respect accorded to actual persons. Halakha in many ways holds such a position with regard to embryos themselves, allowing them to be aborted under a variety of circumstances, but not capriciously, as Bleich³¹ summarizes. But, as Eliyahu,³² Halevi,³³ and Bleich³⁴ have noted, cryopreserved pre-embryos which are not destined for implantation have no standing as fetuses in Jewish law and may be discarded. Generally, Sabbath prohibitions may be set aside to save human life but not property; embryos developing to full human status are also protected this way. However, as Eliyahu,³² Halevi³³ and Wosner³⁵ rule, pre-embryos do not enjoy this protection and may not be saved at the expense of violating the Sabbath.

The Tennessee Court of Appeals²⁹ also held that the pre-embryos were property, awarding the Davises joint control. The Tennessee Supreme Court³⁶ affirmed the Appeals Court decision, but moved somewhat away from the ruling that the pre-embryos were property, holding that they occupied an interim category that entitled them to special respect because of their potential for human life. The Supreme Court held that such disputes should be decided first on the basis of the existing contract agreement. If no prior agreement exists between the progenitors as to disposition of the pre-embryos, then relative interests of the parties in using or not using the pre-embryos must be weighed if a dispute arises as to custody.

In demanding the posthumous destruction of cyropreserved material even in conflict with the wishes of the heirs, Yisraeli has not necessarily ruled that this material is not property. He is apparently relying on a more general principle that anyone may destroy any property for which there is no licit possible use. Indeed, in a different context Yisraeli rules that pre-embryos are indeed property subject to contract law.

In 1991, Ruth Nahmani, an Israeli, underwent hysterectomy. In anticipation of the surgery, she and her husband Dani fertilized preembryos in vitro with the intention of gestating them in a surrogate in California and adopting them after birth. The couple were subsequently estranged, but Ruth wanted to continue with the surrogacy arrangement despite Dani's objection, claiming that at her age this was the only possibility for her having a biological child.

The Israeli district court in Haifa³⁷ ruled in favor of Ruth, holding that just as a husband cannot prevent his wife from having an abortion, he cannot intervene once he has given his initial consent to the procedure. Dani appealed to the Israeli Supreme Court, arguing that his initial agreement presumed a stable family which was no longer a reality. He claimed that he should not be forced to become a parent against his will, and that the analogy to abortion rights is flawed because the current situation does not involve the question of the autonomy of a woman over her body.

The Supreme Court³⁸ held 4-1 in Dani's favor. The imposition of parenthood was against the public interest and acceptable judicial policy. The contract between the parties was of a special nature, involving intimate relationships between the parties. It could not be enforced under regular contract law. (An anology would be a contract to marry.) Dani could not be held to his original consent to the process as the basic change in the relationship between the parties had fundamentally altered it. While the pre-embryo should be respected for its potential to develop into a human, it has no right to life that the State will protect. The minority held that forcing childlessness on a women violated her basic rights and protecting that right took precedence over protecting the right of a person to not have fatherhood forced on him.

Offering a halakhic analysis of the Nahmani case, Shafran³⁹ applies halakhic contract/ property law. He notes that when two individuals pool their resources to accomplish an agreed goal, Halakha allows neither to withdraw arbitrarily; he therefore rules in favor of Ruth.

Yisraeli⁴⁰ notes that there is a long-standing halakhic debate on whether embryos constitute property, but limits that debate to embryos which can develop into humans without outside intervention. This does not include pre-embryos, which, he agrees, should be judged by property/ contract law. However, he sees implied in the agreement between the Nahmanis an assumption that their child be raised in the context of their stable marriage. As the divorce of the Nachmanis makes this an impossibility, Yisraeli therefore rules in favor of Dani withdrawing his agreement. Moreover, he would automatically void any agreement to implant the pre-embryos in a non-Jewish surrogate, as the resulting child would be a non-Jew having no halakhic relationship to its genetic father.

Conclusion

In general, contemporary Jewish law and ethics welcomes the use of cryopreservation of sperm and pre-embryos to the extent that they are used within the context of a traditional marriage or as the only alternative to procreation within an anticipated marriage. It does not approve of electroejaculation for retrieval of sperm from brain dead individuals. Contrary to the position of the American Fertility Society, it rejects the use of a husband's cryopreserved sperm after his death without his explicit approval. Halakha accepts the position increasingly adopted in secular society that the genetic father is not considered the legal father of a child born from sperm inseminated or a pre-embryo or semen implanted after the donor has died.

Physicians' Strikes and Jewish Law

Fred Rosner, M.D., F.A.C.P.

Introduction

In 1975, writing about the immorality of a strike by resident physicians (housestaff) in New York City, 1 I pointed out that "for a physician to strike, for whatever reason, is unconscionable and totally contrary to every standard of medical ethics and morality." Although sympathetic to the demands of the housestaff, I argued that to leave patients without direct medical assistance and attendance put the striking physicians in an untenable moral position.

In 1983, a lengthy strike by physicians took place in Israel which ended only after both sides agreed to submit disagreements on salaries and other unresolved issues to binding arbitration. Since many of the striking physicians were Torah-observant Jews, they turned to rabbinic authorities for guidance on this matter. The rabbis were unanimous in their condemnation of physicians who withheld their services from patients by striking. The Jewish legal reasoning upon which this halachic ruling is based is the substance of this essay. A brief review of the physician's religious license and obligation to heal and physicians' fees is also presented as background for the rabbinic ruling which follow.

Physicians' license and obligation to heal

One could argue that since a person becomes sick only through Divine Providence, it might be forbidden to try to oppose "G-d's will" by seeking therapy. However, the biblical verse "and heal he shall heal"2 is interpreted by the talmudic sages to mean that authorization is granted by G-d to the human physician to heal.3 In Jewish law, a physician is not merely allowed to practice medicine but is in fact commanded to do so if he has trained to become a physician.

This biblical mandate is based upon two scriptural precepts: "And thou shalt restore it to him" 4 refers to the restoration of the lost property. In his Commentary on the Mishnah, Rambam states that "it is obligatory from the Torah for the physician to heal the sick, and this is included in the explanation of the scriptural phrase 'and though shalt restore it to him."'5 Thus, Maimonides, following the Talmud,6 states that the law of restoring lost property includes also the restoration of health. If a person has "lost his health" and the physician is able to restore it, he is obligated to do so.

The second scriptural mandate for the physician to heal is based on the phrase "neither shalt thou stand idly by the blood of thy neighbor."7 The passage refers to the duties of human beings to their fellow men: One may not stand by and allow a fellow man to die without offering help. A physician who refuses to heal, thereby resulting in suffering and/or death of the patient, is also guilty of transgressing this commandment.

Some scholars, notably Maimonides, claim that healing the sick is not only allowed by Jewish law but is actually obligatory. Rabbi Joseph Karo, in his Code of Jewish Law, combines both thoughts.

The Torah gave permission to the physician to heal; moreover, this is a religious precept and it is included in the category of saving life; and if he withholds his services, it is considered as shedding blood. 8

If one asks why G-d granted physicians license and even mandate to heal the sick, one can offer the following explanation. A cardinal principle of Judaism is that human life is of infinite value, as is evident in the fact that preservation of human life takes precedence over all commandments in the Bible except three: idolatry, murder, and forbidden sexual relations. In order to preserve a human life, the Sabbath and even the Day of Atonement may be desecrated, and all other rules and laws save the aforementioned three are suspended for the overriding consideration of saving a human life. A person who saves one life is "as if he saved a whole world." 9 This obligation to save lives, moreover, is an individual as well as a communal obligation. Certainly a physician, who has knowledge and expertise far beyond that of a layperson, is obligated to use his medical skills to heal the sick and thereby preserve and prolong life.

Physicians' Compensation and Fees

The biblical verse "and heal he shall heal" actually relates to compensation for medical expenses arising from personal injuries; it is usually translated "he shall cause him to be thoroughly healed." This is an obvious reference to the payment of medical expenses by one who inflicts an injury on his neighbor. Healing expenses are one of five items of compensation due by law to an injured party. 10 (A more detailed analysis of physicians' fees is provided elsewhere. 11) Briefly summarized, the physician is entitled to reasonable fees and compensation for his services. In talmudic times, when physicians, rabbis, teachers and judges served the community but also had other occupations and trades, their compensation was limited to lost time and effort. Nowadays, however, when physicians have no other occupation, they can charge for their expert medical knowledge and receive full compensation.

Excessive fees are discouraged but not prohibited if the patient agrees to the fees in advance. Indigent patients, however, should be treated for reduced or no fees at all.

ENFORCING ADMINISTRATIVE LAW SPECIAL EDUCATION DECISIONS DURING THE APPEAL PROCESS

By Theodore A. Sussan, Esq.



"Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim."

Nicomachean Ethics, by Aristotle - 350 BC



All lawsuits are filed with some pursuit in mind. At some point, thankfully, the proceeding ends. This is considered to be a good thing by most practitioners, and it is certainly true in special education cases where a child’s future education is at stake. Occasionally, one or more parties decide that the litigation’s aim has not been fulfilled, and an appeal is filed. After a decision is rendered in a special education due process hearing, does an appeal act to stay the order, or is it enforceable and binding on the parties? The answer depends upon where you live. In special education cases enforceability of decisions during the pendency of an appeal presents interesting legal issues, especially as it relates to the concept of “stay put.” This article will review implementation of special education decisions during the appeal process.

THE LAW REQUIRES FAPE

A student's entitlement to a free, appropriate public education (FAPE) derives from the federal Individuals with Disabilities Education Act (IDEA), first enacted in 1975[1]. The federal law represents an ambitious undertaking to enable states to provide special education and related services to children between the ages of 3 and 21 who are deemed to be eligible for special education and related services.[2] The law requires that all children with disabilities have available to them a FAPE which emphasizes special education and related services designed to meet their unique needs.[3] The law is quite complex and implemented consistent with 34 C.F.R. Part 300. In June 1977, the State of New Jersey implemented the law which is today set forth in Chapter 14 of the special education New Jersey Administrative Code Title 6A, otherwise referred to as N.J.A.C. 6A:14-1.1 et seq.

In the great majority of instances parents and school districts are able to agree as to the child’s special education program. The program is then written into a document called an individualized education program (iep). The precise terms of the program are enumerated, including the nature of the education, goals and objectives, the related services that are deemed necessary, and the actual placement where the education will occur.[4] The plan is implemented with the hope and expectation that the child will be offered the FAPE which the law requires. When disagreements arise IDEA provides a mechanism for resolution.

DUE PROCESS PETITIONS HEARD BEFORE THE OFFICE OF ADMINISTRATIVE LAW

Special Education disputes between parents and school districts deal with issues that for the most part break down into the areas of classification, program, placement or related services. When a dispute cannot be resolved through either direct consultation or mediation,[5] either party may file a petition for due process.[6] A due process hearing in New Jersey is a contested action heard before the Office of Administrative Law by an administrative law judge. New Jersey is considered to be a one-tiered state in its due process procedure. That is, the decision of an administrative law is final, and no further review by a state agency is possible.[7] The decision, unlike most all other administrative law decisions, is not a recommended decision that the agency head can adopt, modify, or reject. Other states, such as Pennsylvania , utilize a two-tiered system wherein a hearing officer’s decision is reviewed by a state panel, which then becomes the final state pronouncement.

THE APPEAL

A due process hearing can continue for many days, and span several months or more. The trial concludes with a written decision. In most instances, as in most trial court proceedings, the case comes to an end and the decision is implemented. Final decisions in special education matters in New Jersey are appealable by filing a complaint and bringing a civil action either in the Superior Court of New Jersey or in the District Court of the United States without regard to the amount in controversy. 20 U.S.C.A. § 1415(i)2 states that the court “shall receive the records of the administrative proceeding; hear additional evidence at the request of a party; and basing its decision on the preponderance of the evidence, shall grant such relief as the court determines appropriate.” It should be noted that the appeal hearing is something “short of a de novo hearing” and the introduction of additional evidence is quite limited.[8]

The requirement that final decisions be fully implemented is a boilerplate phrase set forth in every special education decision. The standard language employed by the administrative law judge is:

This decision is final pursuant to 20 U.S.C.A. §1415(i)(A), and 34C.F.R.§ 300.510 (1999), and is appealable by filing a Complaint and bringing a civil action either in the Superior Court of New Jersey or in a District Court of the United States. 20 U.S.C.A. §1415(i)2; 34C.F.R.§ 300.512(1999). If either party feels that this decision is not being fully implemented, this concern should be communicated in writing to the Director, Office of Special Education Programs.



The administrative law judge does not generally retain jurisdiction once a final order has been entered. Enforcement of the decision reverts back to the agency head, which in special education matters is the New Jersey Department of Education.[9]

A special education appellant is never anxious to comply with an adverse decision. For example, the judge's order might require the school district to fund a private school placement, having determined that a disabled child was not offered a FAPE. In such instances it is common for the appellant to argue that the “stay put” provision of IDEA prevents implementation until all proceedings have been completed. This argument stems from the pendent placement requirement of the law, otherwise known as stay put.

STAY PUT

IDEA’s procedural safeguards are important in understanding the enforceability of final decisions. The stay put provision states that during the pendency of any proceedings conducted pursuant to the Act, the child shall remain in the then-current educational placement.[10] The purpose of this provision is to prevent the child's placement and program from being changed during the course of proceedings and to maintain the status quo. It was felt that some degree of continuity in the child's program and placement was more appropriate than having possible program changes occur at various levels in the appeal process. This section was also meant to prevent schools from exercising their traditional authority to exclude children from public schools.[11] In practical terms, this means that once a request for mediation or due process is filed, the last agreed to program and placement becomes the status quo placement for the duration of the proceedings. If a school district proposes to change a child’s program, the parents need to be given 15 days notice prior to any change. Upon the expiration of 15 days, the proposed change takes effect, unless mediation or due process is invoked, which automatically, by operation of law, brings stay put into effect.[12] Thus a timely request for mediation or due process can prevent a school district from changing the last agreed to program and placement. After 15 days, the school district’s proposed change is considered to be the last agreed to placement.

The pendent or stay put placement is considered to be that placement which was set forth in the last agreed to iep.[13] The Supreme Court in the often cited Burlington case noted that “We think at least one purpose of § 1415(e) (3) was to prevent school officials from removing a child from the regular public school classroom over the parents' objection pending completion of the review proceedings.”[14] Most courts agree that this section of IDEA was meant to protect parents and their disabled children from unilateral change in placement by the public school. If IDEA, then, requires stay put through review proceedings, why doesn’t an appeal act to continue the status quo and stay operation of the order?

FINAL STATE DECISION IS THE PENDENT PLACEMENT DURING THE APPEAL PROCESS

Since special education cases can potentially be appealed through the Federal Court system to the United States Supreme Court by Writ of Certiorari, it has been argued that there can be no change in a child's program or placement until the very last court renders its decision on appeal. Since appellate procedure is, to say the least, time-consuming and lengthy, a child's placement, for better or for worse, could be frozen in time for many years. This would be especially tragic if the placement was inappropriate and determined to be so by various courts through the appeal process. For many parents, the high cost of unilaterally placing their child in a private school is prohibitive. The possibility of reimbursement is of no practical value if the child languishes in an inappropriate placement during protracted litigation. As one court noted, “The prospect of reimbursement at the end of the litigation turnpike is of little consolation to a parent who cannot pay the toll at the outset.[15] Courts have concluded that IDEA requires final state decisions to be considered the last agreed to iep, therefore representing the pendent or stay put placement during appeals. The finality of a state decision arises at different stages, depending on whether the state utilizes a one or two tiered system of due process.

The leading case in the Third Circuit dealing with stay put and the appeal process is Susquenita School District v. Raelee S.[16] This Pennsylvania case began when the parents filed a petition for due process seeking reimbursement for a private school placement that they had made. Pennsylvania is a two-tiered system state wherein a hearing officer issues a recommended decision which is then reviewed by a state appeals panel. In Susquenita the hearing officer ruled in favor of the school district, finding that a FAPE was offered to the child and therefore the parents were not entitled to reimbursement for their unilateral placement. The state appeals panel reversed, ruling that a FAPE was not offered, and that the parents acted properly. As a result, the hearing officer’s decision was reversed and parental reimbursement ordered. The school district then appealed to the federal district court, seeking a stay of the appeal panel’s decision. The district court judge denied the stay, resulting in an interlocutory appeal to the Third Circuit. The issue presented was whether or not the stay put provision of IDEA enabled the school district to withhold payment for the private school placement until the appeal process was exhausted?

The parent’s sought immediate implementation of the order. In other words, they wanted the school district to start paying for the private school. Their position derived from the specific language of §1415 (j) of the Act. After examining the factual background of the case, the Court noted that the stay put or pendent placement was the last agreed to iep, “…the dispositive factor in deciding a child's ‘current educational placement’ should be the Individualized Education Program . . . actually functioning when the ‘stay put’ is invoked."[17] Critical to the analysis was Burlington ’s holding that a final decision of the state operated as the last agreed to placement: “The decision in favor of the [parents] and the [private school] placements would seem to constitute agreement by the state to the change of placement.”[18] Thus in two-tiered states, the final state appeal panel decision is considered to be the last agreed to placement and therefore the pendent placement that must be implemented. The result is the same in one- tiered states such as New Jersey , except that the first and only decision rendered is the one issued by the administrative law judge. The Code of Federal Regulations lends support to this conclusion.

34 C.F.R. §300.514(c) states: “If the decision of a hearing officer in a due process hearing conducted by the SEA or a State review official in an administrative appeal agrees with the child’s parents that a change of placement is appropriate, that placement must be treated as an agreement between the State or local agency and the parents for purposes of paragraph (a) of this section.” The U. S. Department of Education’s explanation of the special education Regulations in Vol. 64, No. 48 of the March 12, 1999 issue of the Federal Register at page 12615 states in part: “…this provision does not limit either party’s right to seek appropriate judicial review under 300.512, it only shifts responsibility for maintaining the parent’s proposed placement to the public agency while an appeal is pending in those instances in which the State hearing officer or State review official determines that the parent’s proposed change of placement is appropriate.” (Emphasis added.) Therefore the defining point at which the pendent placement arises is when the state administrative process is final. In two-tiered states that point is reached when an appeals panel reviews the hearing officer’s decision and renders a final order appealable to a state or federal court. In one-tiered states such as New Jersey the pendent placement attaches upon the rendering of the final decision from the Office of Administrative Law. No further state administrative action appeals are possible. The decision is viewed as an agreement between the parent and the state for purposes of stay put.

According to the Supreme Court, “When the elaborate and highly specific procedural safeguards embodied in 1415 are contrasted with the general and somewhat imprecise substantive admonitions contained in the Act, we think that the importance Congress attached to these procedural safeguards cannot be gainsaid.”[19] Being aware of timelines in special education cases can be critical in determining a child’s placement during the appeal process. The protection stay put offers should not be underestimated.

ENDNOTES

[1] 20 U.S.C.A. §1400. The legislation initially was named the Education for All Handicapped Children's Act of 1975, Public Law 94-142.

[2] 20 U.S.C.A. §1400(d).

[3] N.J.A.C. 6A:14-1.3.

[4] An accurately drafted iep is quite complex, as required by N.J.A.C. 6A:14-3.7

[5] 20 U.S.C.A. § 1415(e); N.J.A.C. 6A:14-2.6.

[6] 20 U.S.C.A. § 1415(f); N.J.A.C. 6A:14-2.7.

[7] N.J.A.C. 1:1-18.1.

[8] 20 U.S.C.A. § 1415(e); 34 C.F.R. § 300.509; 34 C.F.R. § 300.511; Colin K. v. Schmidt, 715 F2d 1, 5 (1st Cir. 1983). Also see Bernardsville Bd. of Educ. v. J.H., 42 F. 3d 149, 161 (3d Cir. 1994) which noted that “ ‘additional evidence’ under 20 U.S.C. § 1415(e) (2) ‘does not authorize witnesses at trial to repeat or embellish their prior administrative hearing testimony’; the trial court in its discretion must not allow ‘such evidence to change the character of the hearing from one of review to a trial de novo’… ‘additional evidence’ under 20 U.S.C. § 1415(e) (2) should not be cumulative, introduced to impeach credibility of administrative hearing witnesses, nor embellish testimony from the administrative hearing, and should not have been available for proffer during the administrative hearing.”

[9] N.J.A.C. 6A:14-2.7(n).

[10] 20 U.S.C. § 1415 (j). This section provides, inter alia, that: "During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of such child ... until all such proceedings have been completed."

[11] Honig v Doe, 484 U.S. 305 (1988).

[12] N.J.A.C. 6A:14-2.3(f). Note that this time period does not apply to the initial iep.

[13] Drinker v. Colonial School District , 78 F.3d 859, 867 (3d Cir. 1996).

[14] Burlington v. Department of Educ., 471 U.S. 359, 373 (1985).

[15] Susquenita School District v. Raelee S., 96 F.3d 78, (3rd Cir. 1996)

[16] Id.

[17] Id. at 84.

[18] Burlington at 372.

[19] Hendrick Hudson Dist. Bd. of Ed. v. Rowley, 458 U.S. 176 (1982)

Theodore A. Sussan is a partner at Sussan & Greenwald in Cranbury. He has lectured and written on the subject of special education law.