The growth of the HIV virus responsible for the dreaded and invariably fatal illness of AIDS is one of the most serious public health crises of the 20th Century. Originally limited to homosexuals and intravenous drug users, the virus has now spread to the heterosexual population as well. The proliferation of AIDS raises a host of legal and ethical questions and, as is true for all the pressing issues of the day, Judaism offers valuable insights and perspectives.
At the outset, one possible misconception must be dispelled. The argument is sometimes made that since AIDS is spread by conduct that both Judaism and Christianity regard as immoral, society should not be overly concerned. Let the sinners suffer the consequences of their sin. This is an utterly fallacious argument for two reasons. First, as noted, increasing numbers of people do indeed contract AIDS without engaging in homosexual activity or drug use. Many have contracted the disease from blood transfusion (particularly in the early 1980’s when blood screening was less developed); babies have contracted the virus in utero from their mother’s placenta; at least some health care professionals have been infected from AIDS – carrying patients; and even some patients from health care workers (the tragic Kimberly Bergalis incident). Needless to say, the innocent unknowing sexual partners of persons who contracted AIDS are at risk as well. The belief that AIDS only strikes “sinners” is simply false.
Second, the “sinner” argument is premised on a fundamental misconception. Even if every single case of AIDS were the product of sinful misconduct – which is decidedly not the case – this would in no way minimize our duty to alleviate illness, pain, and suffering. Any case of sickness, whether AIDS, cancer, or heart disease, may or may not be a Divine punishment but that is G-d’s business, not ours. The Torah requires that we not stand by idly while others suffer and this obligation extends to those who follow the Torah as well as those who do not. The Talmud is Tractate Brachos recounts that Rabbi Meir was once being persecuted by evil men and as a result prayed for their demise. His learned wife, Bruriah, rebuked him, citing the verse in Psalms where King David declares, “Let sin perish from the earth” – sin, not sinners. Rather than hope that sinners will die, one should pray that they will repent and see the light. This is exactly the attitude we must take in aggressively combatting this fatal disease.
Coming to specific issues, one of the most controversial aspects in this area concerns proposals for mandatory AIDS testing for high risk groups and disclosure of the results of that testing to past and present sexual partners. On one level, AIDS patients have an understandable desire to keep their status confidential. Disclosure could result in serious discrimination, loss of employment, termination of insurance (although illegal), eviction from housing, and severe social ostracism. At the same time, however, if the HIV-positive patient refuses to make disclosure on his/her own, innocent persons are put at great risk. Consider the HIV-positive patient who informs his physician, “I’m going to die anyway so I want to have a good time as long as I can. I refuse to abstain from sex and I prohibit your disclosing my status to anyone.” Or what if the patient is more subtle and doesn’t openly declare that he will attempt to keep his status secret but the physician suspects that this is the case?
Halacha normally accords great respect to confidentiality. Indeed, even outside of the particular context of the doctor-patient relationship, it is prohibited under Torah law to ever disclose derogatory or embarrassing information about one person to another even if that information is true unless very specific conditions are met. (This is called loshon hora – “evil speech” and puts severe constraints on even “harmless” social gossip.) Nevertheless, the prohibitions of loshon hora are not absolute. Disclosure of negative information is permitted, and even halachically required, if necessary to prevent physical, financial, or emotional harm to a third person. For example, if you plan to enter a business partnership with someone who I know is a convicted embezzler. I may and must inform you of that fact notwithstanding the law of loshon hora. If a woman is about to marry a man who has a history of psychiatric problems and abuse, disclosure is mandatory. Halacha says I may not exaggerate. I may not state as fact that which I have heard only as rumor. I may not disclose the information to those who have no pressing need to know it. But confidentiality must yield when innocent third parties are put at serious risk. A fortiori, this consideration would apply to AIDS cases where nondisclosure may result in death, not merely financial loss. Halacha would thus appear to support both compulsory testing and mandatory disclosure, at least on a “need to know” basis.
The matter becomes more complicated, however, when we consider long range effects as opposed to immediate short-term benefits. Many public health experts have argued that any policy which undermines confidentiality will result in fewer people being tested. (Even mandatory testing can be skirted. After all, how would the government be able to identify all homosexuals?). Consider a person who would be willing to submit to AIDS testing if the results of the testing were to be kept absolutely confidential. If such guarantees were forthcoming, such a person would come forward, and be tested. If the results were positive, he could receive AZT treatments etc. and may very well decide on a voluntary basis to disclose his status to past or present sexual partners or at the very least, practice “safe sex” with a condom. If, on the other hand, confidentiality is not absolute, some persons would simply refuse to be tested at all. As a result, they would be deprived of early treatment opportunities and would continue to spread the virus unknowingly until such time as the AIDS symptoms become apparent. Thus, some medical ethicists argue, confidentiality must be respected even at the expense of a particular person’s life because, in the long run, such a stance will save many more lives in the future.
The dilemma this issue poses is similar to one that reputedly confronted Winston Churchill during World War II. British intelligence had broken some German codes that indicated that the Nazis were going to firebomb the town of Coventry. Were Coventry to be evacuated, however, the Germans would realize that the codes were cracked and would have them changed. As a result, allied forces would have lost an invaluable source of information, possibly endangering the entire war effort and placing countless future lives in jeopardy. Should 10,000 specific and identifiable people be allowed to die in order to prevent the possible loss of thousands of unidentified future victims? Churchill answered in the affirmative. This heartwrenching dilemma is at the heart of the confidentiality debate. Space precludes a full consideration of this problem but Rabbi J. David Bleich, a leading scholar, concludes that if it indeed can be established that greater confidentiality will in the long run promote the saving of lives (and he emphasizes that this has not been empirically established) halacha would permit the consideration of the long term even at the expense of the immediate victim.
A number of other halachic issues will be briefly noted:
1. Use of condoms: While Jewish law generally frowns upon the use of condoms as a contraceptive, it would permit their use as a means to prevent the spread of a life-threatening illness. The Torah would not require an AIDS patient to practice lifetime abstinence. Whether condoms should be openly distributed to students in schools is a more difficult issue. Obviously, Judaism believes that sex should take place within the framework of a loving and committed marriage and frowns on any efforts that would openly legitimize alternative lifestyles and premarital affairs. At the same time, if adolescents are going to be sexually-active, they should be aware of precautionary steps. The school must walk the tightrope of affirming abstinence and responsibility as the desired norms but making condoms available as a far distant second best, an evil that is the lesser of two evils.
2. Physician Endangerment: Under Jewish law, even a physician is not obligated to put his life in danger in treating patients with an infectious disease though it is an act of piety to do so. Nevertheless, where the risks are relatively minimal or are no greater than those the physician customarily incurs for his own benefit (e.g., driving on the highway, piloting a plane), the physician may not shirk his duty by invoking the specter of an illusory danger. This is especially so when reasonable precautions can virtually eliminate the danger. In any event, even where a physician may morally refuse to treat high risk patients, a hospital, as a legitimate incentive to encourage treatment, may deny staff privileges to any health care provider who refuses to treat admitted patients. (Whether this would be true for a physician who refused to perform abortions is another matter.)
3. Mikveh, Tahara, Milah: The HIV virus does not survive in water so there would be no reason to deny AIDS patients the use of the ritual bath (Mikveh). Similarly, while members of the Chevra Kadisha (Burial Society) could conceivably contract HIV from the body fluids of the corpse that they are washing, if they are wearing gloves the risks are virtually nil. Unlike the case in surgery, there are no needles or sharp objects that will puncture the gloves. The consensus of most authorities is, therefore, that a tahara (ritual cleansing) should be performed. A final concern involves circumcision (brit milah). In the Orthodox rite, after making the incision, the mohel actually sucks the wound to draw out blood and promote clotting. Since babies can acquire the virus through their mothers, this creates risks for mohels. The AIDS virus, however, cannot survive a solution of 75% alcohol so a quick swishing of 150 proof rum prior to the sucking will avoid all problems.
A final point: although we must relate to all victims of illness with concern and compassion and have no right to reject persons who need our assistance, it cannot be denied that G-d is trying to give us a message, a message that society refuses to learn. An illness that became virulent and rampant because of homosexuality and drug use (although presently not limited to those categories) is a vivid reminder that society cannot indefinitely engage in immorality with impunity. The breakdown of values carries serious costs including the deaths of innocent victims. Our culture of moral relativism, situational ethics, sexual freedom, hedonistic materialism, and family breakdown brings in its wake tragic dimensions of crime, misery, and suffering. If we address AIDS exclusively as a medical problem, we are missing the boat. G-d has given us an early warning detection system to put our spiritual house in order. Let us be responsive to His call.
Gays in the Military
Judaism unequivocally prohibits the commission of homosexual acts. These are deemed to be an abomination. This is true for Jews and non-Jews. Any statements that purport to establish a homosexual lifestyle as an equally legitimate alternative lifestyle must be roundly condemned. Legal recognition of same sex marriages or the introduction of gay and lesbian literature in primary grades would not be regarded as morally acceptable. Similarly, an argument can be made that gays or lesbians should not be adoptive parents because they are likely to inculcate a belief in the child that homosexuality is indeed just one other alternative.
At the same time, however, Judaism does not support discrimination against persons merely because they are homosexual or engage in homosexual activity. After all, the Torah requires that Jews observe the Shabbat and eat Kosher yet no one suggests that, even in a halachic society, non-Shomer Shabbat persons should be denied employment. Essentially, in the absence of a Temple or a Sanhedrin, the level of a person’s religious commitment is a matter between that person and G-d; it is not the business of the State. Even religious teachers are supposed to instruct, enlighten, and encourage but not coerce or persecute.
A similar approach should be taken with gays in the military. Sexual orientation or preference should simply be nobody’s business. The question of sexual orientation should be dropped. Obviously, heterosexuals should not be forced to witness homosexual activity nor should the government make any statement putting its imprimatur on such activity. Provided, however, that such activity is private and nonintrusive, it is nobody’s concern but G-d’s and is essentially as irrelevant (for military duty) as one’s level of Kashrut observance.