Vaccine Triage in Jewish Ethics – an Intermediate Approach

We thoroughly enjoyed and appreciated the recent articles in the Lehrhaus by Doctors Sharon Galper Grossman, Shamai Grossman, and Alan Jotkowitz^[1] on Halakhic approaches to COVID-19 vaccine allocation. We are grateful to Doctors Galper-Grossman and Grossman for their extensive treatment of our article on the Jewish ethics of vaccine triage from 2010, in which we postulated a country with medication must first worry about its own citizens before attempting to aid another country based on the ruling of Rabbi Akiva in the Talmud Bava Metzia that one’s own life takes precedence over the life of another.

We would like to clarify our position from our article, as well as make some general observations on the subject. As Dr. Jotkowitz stated – these remarks are meant in the spirit of mahloket le-shem shamayim.

A Matter of Law or Ethics?

The current discussion about vaccine triage and distribution seems to be more of a discussion regarding Jewish ethics and less a question of Jewish Law per se. Inasmuch as Jewish law refers to formal, precisely legislated requirements, ethics on the other hand concerns itself with why and how one ought to act, providing us with guides on what is the right thing to do in all aspects of life. These types of guidelines are frequently not feasible for legislation and may contain opposing values in a greater ethical system.^[2] Consequently, a clinical bioethics consultation will frequently clarify conflicting moral issues in a given ethical dilemma^[3] as well as mediate communication between various stakeholders in a given situation,^[4] as opposed to giving a concrete black and white answer to a given dilemma.^[5] Rabbi Aharon Lichtenstein and Rabbi Walter Wurzburger championed the concept that Judaism demands allegiance to ethical conduct inside of Judaism but outside of the formal law.^[6] In the words of Rav Lichtenstein:

If, however, we equate Halakhah with the din, if we mean that everything can be looked up, every moral dilemma resolved by reference to code or canon, the notion is both palpably naïve and patently false. . . . Which of us has not, at times, been made painfully aware of the ethical paucity of his legal resources? Who has not found that fulfillment of explicit halakhic duty could fall well short of exhausting clearly felt moral responsibility?^[7]

Rav Yuval Cherlow, Rosh Yeshiva of Yeshivat Hesder Amit Orot Shaul in Tel Aviv as well as head of the Tzohar Center for Jewish Ethics, has stated that the question of allocation of vaccines falls into the area of Jewish ethics and not that of Jewish Law.^[8] As such, the solution to the question of vaccine allocation should allow for a flexibile, multidimensional approach rather than an approach of purely din or law. Similarly, broader holistic sources including pesukim from Navi and works of Hashkafah, such as those listed by Dr. Jotkowitz, are more appropriate for a question of Jewish ethics than a purely legalistic question.

Does the Need for Boosters Outweigh the Need to Share?

When addressing the medically relevant elements in booster distribution, Doctors Grossman quote a disagreement between the WHO and NIH director Dr. Francis Collins. Dr. Mike Ryan of the WHO compares boosters to “planning to hand out extra life jackets to people who already have life jackets, while leaving other people to drown without a single life jacket.” NIH director Dr. Francis Collins, while taking issue with the analogy, suggests perhaps that vaccines are more akin to life jackets that are losing some of their flotation ability (in the interview cited, Dr. Collins acknowledges he was taking the analogy too far).

The truth seems to be somewhere in between. When looking at Israeli data, people who have been vaccinated but have not received boosters show a higher rate of morbidity and mortality compared to those boosted, but still show a significantly lower rate of morbidity and mortality compared to the unvaccinated.^[9] After the original vaccine came out, in May 2021, a study by Haas et al. in The Lancet^[10] compared mortality between vaccinated and unvaccinated individuals. For the unvaccinated aged 45 to 65 the estimated mortality was 0.5; for those greater than 65 estimated mortality was 6.6 per 100,000 person days. In the vaccinated cohort mortality was estimated to be between less than 0.1 to 0.2 per 100,000 person days. A recent article in the New England Journal of Medicine^[11] by Arbel et al. analyzed death rates post booster vaccination in an over fifty year old cohort. The death rate in the booster group was 0.16 per 100,000 persons per day, while in the non-booster group it was 2.98 per 100,000 persons per day – significantly higher than in the booster group but less than the Haas study of the same population. However, given that in all estimates the morbidity and mortality in patients varies significantly based on age, perhaps one must include these other factors in the determination of risk for allocating vaccine doses.^[12] Even in the above 50 age category, the estimated infection fatality rate of those who have been vaccinated but received no booster approaches that of influenza and is even significantly less than the risk from influenza depending on the year, particularly in younger age categories. H1N1 influenza mortality estimates ranged from 0.4 per 100,000 in the youngest cohort (5-14) and 16 per 100,000 for those between 60-69 when looking at confirmed deaths, but estimated deaths are at an even higher rate approaching 1,099 per 100,000.^[13] This is of course not to minimize the dangers of COVID, rather to highlight the morbidity and mortality of influenza in a pandemic season. Therefore, in light of the diverse morbidity and mortality risk COVID-19 represents, a more nuanced approach might consider the varying risks within the populations at large, including age, to more equitably distribute available vaccine resources to maximize benefits worldwide. In an interconnected worldwide economy, damage to areas not limited to one’s own country can have significant impacts on others in the supply chain.

The U.S. Surgeon General Vivek Murthy has advocated the approach that rich countries should run booster campaigns concurrent to their efforts to vaccinate the rest of the world^[14]: “The notion that somehow us providing adequate protection for the American people is not right, I don’t accept that premise … We have to do both. We can’t choose between one and the other.” However, many ethicists have rejected this approach, stating any booster will take away the ability from someone in a poor country to receive that vaccine.^[15] Conversely, some have contended that the third world suffers from a deficit of vaccine delivery and not vaccine supply.^[16],^[17] Doctors Grossman present a gamut of ethical positions analyzing this issue. However, one could point out that countries constantly are faced with the need to finance a multitude of projects, often based on conflicting value systems. Part of the responsibility of a legislature when it passes a budget is to divide limited resources among the different projects a country believes it should attempt. Moreover, nations regularly budget funds for both mundane matters and international relief at the expense of increasing funding for domestic life saving measures. Rabbi Shlomo Dichovsky, former member of the Rabbinic High Court and director of the Israeli rabbinical courts, has justified this policy based on the Gemara in Gittin 45a, contending that although Judaism attaches supreme importance to the obligation to save a human life, the broader the needs of a general community receive a priority of the same magnitude as saving an individual life.^[18]

Jews vs. Non-Jews

In Dr. Jotkowitz’s response to the Grossman and Grossman article, he observed the teshuvot quoted by the Doctors Grossman regarding triage deal with resource allocation among Jewish populations and therefore it is unclear what these halakhic authorities would rule if the choice were between Jews and non-Jews. One could take the question even further and question whether one should use the hierarchy listed by the Talmud itself with regards to triaging life saving efforts. The Talmud in Horayot 13a prioritizes religious scholarship and genealogy as the primary criteria for which lives should be saved in cases where it is impossible to save all. Many secondary sources list the Gemara in Horayot as one of the primary sources concerning questions of triage and Halakhah.^[19] However, although there are some authorities who disagree on this matter,^[20] the predominant contemporary view is that the order listed in the Talmud Horayot is not applicable today.^[21] Similarly, Rabbi Ovadia Yosef,^[22] Rabbi Eliezer Yehuda Waldenberg,^[23] and Rabbi Isser Yehuda Unterman^[24] have ruled that in today’s day and age a physician working in a health system has a corresponding obligation to saving both a non-Jewish life and a Jewish life.^[25] Furthermore, Rabbi Professor Avraham Steinberg unequivocally writes that “determinations based on gender, race, religion, nationality, economic status, communal status, vocation, and the like are not factors in determining precedence,”^[26] in essence rejecting both the order of priorities mentioned in the Talmud Horayot as well as a differentiation between Jew and non-Jew.^[27] Therefore, there may be justification to extrapolate from the primary halakhic sources to the current question of vaccination equity.

Distributive Justice

Distributive justice is a field of both philosophy and the social sciences that is concerned with the fair distribution of the burdens and benefits of social cooperation among diverse persons with competing needs and claims. Distributive justice theories vary on what basis the distribution should be made (equality, maximization, according to individual characteristics, according to free transactions, etc.)^[28] Recently, Bar-Ilan University’s Jewish Law Clinic sponsored a conference on the distributive justice of international vaccine distribution through the lens of ethics and Halakhah.^[29] In the conference, Rabbi Cherlow stated that countries have an obligation to finish vaccinating their own citizens before distributing vaccines to other countries. He bases his position on the opinion of Rabbi Akiva in Bava Metzia 62a regarding two individuals who are lost in the desert with a jug of water, as well the rule stated in Bava Metzia 71a that one should prioritize the poor of one’s own city when giving charity. However, Rabbi Cherlow qualified his ruling by highlighting that the talmudic rule is that with regards to charity, the citizens of one’s own city receive priority but not exclusivity. Therefore, Rabbi Cherlow posits that once a country has vaccinated its citizens and keeps a few vaccines in reserve, they should work to vaccinate people in other countries.^[30]

At the same conference, Rabbi Professor Yitzchak Brand took an approach focused more on international distributive justice. Rabbi Brand highlights that the Torah, particularly the book of Deuteronomy,^[31] emphasizes the need for sensitivity towards the non-Jewish stranger, with the Jewish nation filling the dual role of both cosmopolitan engagement and a separatist group.^[32] Tanaic Literature minimizes the universal nature of the precepts in Deuteronomy,^[33] with non-Jews receiving only based on an a posteriori circumstance.^[34] Rabbi Brand states that with the founding of the state of Israel, the Jewish nation should return to the more universal ethic of universal / multinational charity described in Deuteronomy. He bases this approach on Rabbi Isser Yehuda Unterman’s (the second Chief Rabbi of the State of Israel) understanding of darkhei shalom^[35] among other sources. Rabbi Brand therefore concluded that giving humanitarian aid to countries lacking vaccines during the pandemic should be a priority for the state of Israel during the pandemic.^[36]

Further in the conference both Rabbis Cherlow and Brand agreed that there was not much difference in their respective approaches, with the possible discrepancy of where the line should be drawn between how many vaccines are kept for the state of Israel and how many should be sent as humanitarian aid.^[37]

Conclusion

In our original article we stated that a country in possession of medication (in our case vaccines) must first worry about its own citizens before attempting to aid another country based on the ruling of Rabbi Akiva in Bava Metzia.^[38] However, two years into the current pandemic the situation is too complex to act purely based on this talmudic passage. As we discussed above, the lethality of COVID-19 to a vaccinated person who has not received a booster does not approach the lethality in an unvaccinated individual when one considers the vast differences in infection rates between age groups. Therefore, we believe the current situation is more akin to the situation described by Rabbis Cherlow and Brand, where a country with greater resources is in a sufficiently secure situation where they may be obligated to donate resources to a country that has already been affected by the pandemic. We would therefore posit that at the current stage in the pandemic, Jewish Ethics would support the approach of U.S. Surgeon General Vivek Murthy,^[39] concurrently engaging in a booster campaign along with one to vaccinate other nations. Although such a compromise limits both efforts, in the murky world of competing halakhic values this may be the best possible route.