Commentary

Vaccine Triage in Jewish Ethics – an Intermediate Approach

Print Friendly, PDF & Email

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.


[1] In full disclosure, Dr. Jotkowitz is the director of Aryeh Dienstag’s former medical school.
[2]Ethics and the Law,” Center for Health Ethics, University of Missouri School of Medicine, 2020.
[3] Joe Fins, Ellen Fox, and Marion Danis, “Developing Standards for Clinical Ethics Consultation,” Plenary Session, 11th Annual International Conference on Clinical Ethics & Consultation, May 20, 2015.
[4] Jochen Vollmann, “The Implementation Process of Clinical Ethics Consultation: Concepts, Resistance, Recommendations,” Clinical Ethics Consultation: Theories and Methods, Implementation, Evaluation, ed. Jan Schildmann, John-Stewart Gordon, and Jochen Vollmann (New York: Routledge, 2010).
[5] Lynette Cederquist et al., “Identifying Disincentives to Ethics Consultation Requests Among Physicians, Advance Practice Providers, and Nurses: A Quality Improvement All Staff Survey at a Tertiary Academic Medical Center,” BMC Med Ethics 22, 44 (2021).
[6] Judah Goldberg, “Is There an Ethic Beyond Formal Jewish Law?” VBM: The Israel Koschitzky Virtual Beit Midrash, Yeshivat Har Etzion.
[7] Aharon Lichtenstein, “Does Judaism Recognize an Ethic Independent of Halakhah?” Leaves of Faith: The World of Jewish Living, 38-39.
[8] Yuval Cherlow, “Ha-mabat ha-iti me-ahorei hisunei ha-Corona” (Hebrew), January 28, 2021.
[9]The Coronavirus Pandemic in Israel: A General Picture,” Israel Ministry of Health, retrieved on December 14, 2021.
[10] Eric J. Haas et al., “Impact and Effectiveness of mRNA BNT162b2 Vaccine Against SARS-CoV-2 Infections and COVID-19 Cases, Hospitalizations, and Deaths Following a Nationwide Vaccination Campaign in Israel: An Observational Study Using National Surveillance Data,” The Lancet 397, no. 10287 (May 5, 2021): 1819-1829.
[11] Ronen Arbel et al., “BNT162b2 Vaccine Booster and Mortality Due to Covid-19,” The New England Journal of Medicine 385 no. 26 (December 23, 2021): 2413-2420.
[12] Andrew T. Levin et al., “Assessing the Age Specificity of Infection Fatality Rates for COVID-19: Systematic Review, Meta-analysis, and Public Policy Implications,” European Journal of Epidemiology 35, no. 12 (December 8, 2020): 1123-1138.
[13] Jessica Y. Wong et al., “Infection Fatality Risk of the Pandemic A(H1N1)2009 Virus in Hong Kong,” American Journal of Epidemiology 177, no. 8 (April 15, 2013): 834-40.
[14] Josh Wingrove, “Biden’s Vaccine Booster and Export Plans Collide at Summit,” Bloomberg, September 19, 2021.
[15] Sara Reardon, “Will Giving COVID Booster Shots Make It Harder to Vaccinate the Rest of the World?” Scientific American, October 20, 2021.
[16] Krishna N. Das, “India Stuck with COVID-19 Vaccines It Can’t Export,” Reuters, December 15, 2021.
[17] Lynsey Chutel and Max Fisher, “The Next Challenge to Vaccinating Africa: Overcoming Skepticism,” The New York Times, December 1, 2021.
[18] Shlomo Dichovsky, “Priorities in Public Life Saving,” Torah Shebaal Peh, 31, 1990; Shlomo Dichovsky, “Pikuah Nefesh of an Individual and a Community in the time of Corona Pandemic,” Asia, 117-118 (2020): 52-72.
[19] Avraham Steinberg, “Priorities in Medicine,” Encyclopedia of Jewish Medical Ethics (Feldheim 2003), 849-850; David Etengoff, “Triage in Halacha: The Threat of an Avian Flu Pandemic,” Journal of Halacha and Contemporary Society (RJJ, 2008), 75-81; Abraham Abraham, Nishmat Avraham, Yoreh Deah 252:B 181-185; Moshe Sokol, “The Allocation of Scarce Medical Resources: A Philosophical Analysis of the Halakhic Sources,” AJS Review, 15, no. 1 (Spring 1990): 63-93.
[20] Chazon Ish on Bava Metzia 62a.
[21] Iggrot Moshe Hoshen Mishpat 2 73:2. Along these lines the Mishnah Berurah states that we have no Torah Scholars in our time and this cannot be used as a way to decide which person should be saved first (547:12); the Magen Avraham states this as well. See Minhat Shlomo Tanina, 86:1; Avraham Steinberg, “Allocation of Scarce Resources,” Encyclopedia of Jewish Medical Ethics (Feldheim 2003), 45-46; David Etengoff, “Triage in Halacha: The Threat of an Avian Flu Pandemic,” Journal of Halacha and Contemporary Society (RJJ, 2008), 75-81; Avraham Steinberg, “Priorities in Medicine,” Encyclopedia of Jewish Medical Ethics (Feldheim, 2003), 849-850; Abraham Abraham, Nishmat Avraham, Yoreh Deah 252:B p181-185; Rabbi Yuval Cherlow, “Allocating measures for life-saving treatments in an emergency – Position Statement,” Tzohar Ethics, April 3, 2020.
[22] Yabia Omer 8:38, Yalkut Yosef Shabbat p266.
[23] Tzitz Eliezer 8:15
[24] Or Ha-Mizrah 15 (1965): 227-231.
[25] Although these rulings were stated with regards to the laws of desecration of Shabbat, they set a precedent of practically utilizing rules of pikuah nefesh for a non-Jew.
[26] Avraham Steinberg, “The Coronavirus Pandemic 2019-20: Historical, Medical and Halakhic Perspectives,” 2nd edition, KolCorona, 2020.
[27] Rabbi Steinberg analyzes this issue at length in the third edition of his Hebrew work on COVID19. See Avraham Steinberg, “The 2020 Coronavirus Pandemic: Historic, Medical, and Halakhic Perspectives” (Hebrew), 3rd edition, KolCorona, 2020.
[28] Julian Lamont and Christi Favor, “Distributive Justice,” The Stanford Encyclopedia of Philosophy (Winter 2017 Edition), Edward N. Zalta (ed.).
[29]Distributive Justice of International Vaccine Distribution,” Faculty of Law, Bar Ilan University, May 24, 2021.
[30]Equal Distribution of Vaccines – What Does Halakhah Say?” Arutz Sheva, May 25, 2021, retrieved December 14, 2021; Yuval Cherlow, “Distributive Justice of International Vaccine Allocation – Ethics and Halakhah” (Hebrew), June 8, 2021.
[31] Deuteronomy 15:1-3, 15:7, 23:20-21, 24:17-18
[32] Deuteronomy 4:6, Deuteronomy 14:2, Deuteronomy 28:10
[33] Sifri Kedoshim 1:3:4, Sifri Devarim 110, Sifri Devarim 116.
[34] Mishnah Gittin 5:8, Tosefta Pe’ah 3:1, Tosefta Gittin 3:13.
[35] Shu”t Shevet Yehudah 3:70 p293-295.
[36]Equal Distribution of Vaccines – What Does Halakhah Say?” Arutz Sheva, May 25, 2021, retrieved December 14, 2021; Reaction to Distributive Justice of International Vaccine Allocation – Ethics and Halakhah” (Hebrew), June 8, 2021.
[37]Reaction to Distributive Justice of International Vaccine Allocation – Ethics and Halakhah” (Hebrew), June 8, 2021.
[38] Aryeh Dienstag, “Rationing During a Pandemic Flu,” Verapo Yerapey
[39] Josh Wingrove, “Biden’s Vaccine Booster and Export Plans Collide at Summit,” Bloomberg, September 19, 2021.

Aryeh Dienstag, MD is a member of the Department of Psychiatry, Hadassah Hebrew University School of Medicine, Jerusalem, Israel. Penina Dienstag, MD is a member of the Department of Anesthesia and Critical Care Medicine, Hadassah Hebrew University School of Medicine, Jerusalem, Israel.