AIDS
1. An AIDS carrier refuses to inform his spouse of his situation. Is
the doctor permitted halachaor obligated halachato divulge the information to
the spouse of the carrier?
2. Is the spouse of an AIDS carrier entitled to demand the
dissolution of the marriage and a get (religious divorce)?
Is he/she permitted to remain married and continue marital
relations despite the illness?
If the spouse wishes to remain married to the AIDS carrier,
is the male permitted – or obligated – to use a condom?
3. Under which circumstances may one compel an
individual to be tested for HIV? When do the rights and responsibility of the
community supercede those of the individual?
AIDS
The
prohibition of exploitation in Jewish law[1] includes a
prohibition of concealing any significant relevant facts before entering into a
business or marital relationship.
Concealing
significant facts from an intended partner before marriage is not only an
offense against the law of exploitation, but also creates a doubt regarding the
validity of the marriage. The author of Sefer Chasidim, therefore, wrote
700 years ago:
If a person’s children or relatives wish to marry, he should not conceal any defect, such as an illness which would have dissuaded the parents from marrying them had they known of it; he should not conceal it, but reveal the facts, lest they claim that the marriage was a “mistaken marriage.” It is better to separate them (i.e. disclose that which may prevent the marriage) than that they should live together in conflict.
As a
general rule the Torah forbids relating anything derog- atory about another
person. However, where a person’s life is in danger or he is in danger of
suffering financial loss as a result of another person’s activity, one is
allowed and even obliged to warn him of the danger caused by the other person.[2] In such cases
not only does the ban on tale-bearing not apply, but there is a positive duty
to rescue his life or his property.
One who
fails to rescue another’s life is guilty of infringing the law “You are not to
stand by the blood of your fellow.”[3] One who fails
to rescue another’s money is guilty of infringing the law “You are not able to
ignore.”[4]
Consequently,
anyone who knows that someone is suffering from an illness that can affect an
intended spouse is obliged to inform the intended partner if the sufferer is
not prepared to disclose the information to the intended. This law also applies
to physicians.
According to the Chafetz Chayyim disclosure has three conditions:
1. Absolute
certainty that a real illness is involved.
2. The information must be
given objectively and without exagg- eration.
3. There must be no
intention of injuring the party who is ill, but solely an intention of
preventing harm to the other side.
Rabbi S. Z. Auerbach added that the seriousness of the illness must also be taken into account:
1. Where there is a medical problem that does not pose any real danger, the fact may be revealed to the other side to enable them to make a fair judgment, but there is no obligation to disclose the fact.
2. Where there is a
serious illness and a reasonably good chance that the marriage will break up
once the facts are discovered, then the physician is actually obliged to
disclose the facts to the other side to prevent serious future damage.
If one
partner to an intended marriage is a carrier of AIDS and does not intend to
disclose this, there is an obligation to reveal the fact to the healthy
partner.
Even
when a couple are already married and one partner is infected with AIDS and
does not wish to reveal this to the other, there is an obligation to inform the
partner in order to save his or her life. There is in this no prohibition of
tale-bearing, and one who withholds the information is infringing the law not
to stand by another’s blood.
Halacha
distinguishes two types of defect or illness:
1. A very serious illness or defect, which a partner normally cannot tolerate.
2. A moderate defect that can be tolerated.
In the
first case, where one partner concealed a serious defect or illness from the
other before marriage, the marriage is defined as a “mistaken marriage,” which
is similar to a “mistaken bargain” and is declared null and void ab initio. The
woman is free to remarry.
In the
second case, where there is a defect that might be tolerated, the status is
that of a marriage of doubtful validity since it is not absolutely certain that
it is considered a “mistaken marriage.”
Sources:
Shulchan Aruch Even Ha’ezer 39:5; Levush ibid; Bet Shemuel
chapter 15 ibid.; Shulchan Aruch Even Ha’ezer 154:3; Talmud Bava
Kamma 110b-111a.
AIDS is
a very serious illness. In general, a person would not wish to marry one who
carries the disease. Consequently, if the fact is concealed before the wedding,
the marriage is null and void. In practice one should not rely on one’s own
judgment, but turn to an authorized Rabbinical Court or consult a qualified
Rabbi.
If one
partner contracts AIDS after marriage and the other in consequence wants a
divorce, the court may force the granting of a divorce. Shulchan Aruch Even
Ha’ezer 154:1 states that if a husband is afflicted with even a disfiguring
disease he may be forced to divorce his wife and pay the ketubbah.
There are
cases where despite the fact that one of the partners is a carrier of AIDS,
both partners wish to maintain the marriage without using a condom to give
themselves an opportunity of producing healthy children through which they can
be remembered. If the carrier is considered as a potential killer of the
healthy partner, such attempted killing cannot be permitted even with the
other’s consent.
If
however the chances of infection are low and the healthy partner wishes to
continue the marriage despite the risk, such a risk may be taken in order to
bring offspring into the world just as a person is allowed to risk his life in
certain other situations.
It is
therefore difficult to forbid the couple to continue their marriage despite the
danger involved.
In the
past a 50% chance was reported of a child being infected by AIDS from a mother
who carried the disease. In recent years this statistic has fallen to between
20% and 30%.
From the
remarks of halachic authorities in similar cases (such as Iggerot Moshe,
Even Ha’ezer 4:73), it appears that parents may not be forbidden to try to
bring a healthy child into the world despite the high risk of an infected child
being born.
In
practice, an expert rabbi should be consulted, who should clarify the situation
with a medical expert before giving the family his opinion.
Protection against AIDS
If both
sides agree to continue the marriage despite the fact that one of the partners
has AIDS, physicians recommend the use of a condom to prevent infection of the
partner. This raises a very serious halachic problem since the use of a condom
is in general connected with the prohibition of wasting sperm.[5]
Here we
are admittedly dealing with a special case involving danger to life and a
reasonable chance of the marriage breaking up if a condom cannot be used.
There is
disagreement between the authorities regarding the use of a condom in special
cases. Rabbi Chayyim Ozer[6] and Rabbi Moshe
Feinstein[7] permitted the
use of a condom in special cases.
On the
other hand, the author of Shevet Sofer[8]
Maharsham,[9]
Rabbi S. Z. Auerbach and Rabbi S. Eliashiv[10] prohibit this.
In view
of the seriousness of the problem, a rabbi who is an expert in such matters
should be consulted before taking any action.
According to the halacha[11] any obstacle that involves danger to life must be removed. This is based on a positive command in the Torah: “Be careful to guard your life.”[12] If a particular physician is suspected of being a carrier of AIDS he is under an obligation to undergo tests. If the suspicion is found to be valid, the doctor must cease all direct work with patients.
Source: The
First International Collquium on Medicine, Ethics & Jewish Law,
July 1993, pp. 207-210 (Schlesinger Institute, Jerusalem, 1996)