In first few chapters of Exodus, the Egyptian Pharaoh enacts harsh decrees to curtail the fertility and fecundity of the Jewish people (Exodus1:9), “pen yirbeh” – lest the Jews multiply. His increasingly genocidal decrees are thwarted by increasingly heroic women. Last, and perhaps most daring of all, is Pharaoh’s daughter, who adopts the young foundling Moses right under her father’s nose, even though she knows that all Egyptians have been commanded to kill any male Jewish baby.
However, the decrees and the responses begin on a far more prosaic level. First, the will of the people is to be broken through hard labor, with a hierarchy of taskmasters and supervisors. In the midrash (Shmot Rabbah 1:2 and elsewhere) the sages elaborated on the Biblical language to understand that Pharaoh’s decrees of hard labor were especially intended to create physical and emotional separations between husbands and wives and thereby disrupt Jewish family life. Rav Avila praises the “righteous women” who responded by taking steps to circumvent Pharaoh’s decree, having relations with their husbands, and ensuring that Jewish family life would continue. This civil disobedience was sufficient to ensure that Pharaoh’s fear of “pen yirbeh” would be realized just a few verses later (Exodus 1:12) with the result “ken yirbeh” – “they certainly did increase.”
Pharaoh’s most wicked decree was the command to kill all male Jewish babies. To accomplish the mission most efficiently, he summons two women who are identified as the “midwives of the Hebrews, one of whom was named Shifra, the other one named Puah” (Exodus 1:15), and commands them to serve as proxies in these acts of infanticide. These two brave women disobeyed the command. In fact, the Biblical text says “vetechayenah“- they kept them alive, which the Talmud (Sotah 11a) elaborates to mean that not only did they not kill the infants, but they even took active steps to keep them alive by providing nourishment.
Pharaoh confronts the midwives and asks them why they have not fulfilled his command. They conceal their disobedience by offering a bold misdiagnosis: the Israelite women are “hayot,” animals, and give birth in the fields without assistance. The Hafetz Hayim makes an important point about the true courageousness of their stand: the midwives had a third option, namely, resigning their posts. They would have kept their own hands clean with far less risk, even if Pharaoh could then have appointed others who would do his dirty work. Eventually, the midwives are rewarded by God for their courage, and Pharaoh is forced to turn to the common people to enforce his decree and seek out the newborns.
Shifra and Pu’ah were faced with a physically precarious but morally clear life and death choice; withold care from innocent children or defy a murderous tyrant. In our day, we and our medical caregivers are faced with much murkier issues. Lawrence Kohlberg, a modern ethicist, encapsulates the conflict in a fictional dilemma constructed around a man named Heinz, who cannot afford the medicine that will keep his wife alive, and must decide whether or not to steal it. According to Kohlberg’s classification of moral development, people at different stages of moral growth will respond differently to the dilemma and make different choices. Some might consider avoidance of punishment, or “law and order” to be paramount, and choose not to steal the drug. Others might do a self-interested comparison of risks and rewards, or appeal to an “ethic higher than the law” which demands protection of human life above property, and choose to steal the drug and live with the consequences.
The dilemma is re-enacted by doctors and patients every day in our society, where it is not a tyrant’s evil decree, but the blind pressures of economics and the arcane formularies of insurance companies and HMO’s that determine who will get what kind of care. As a result, many doctors and patients feel forced into intentional misdiagnoses or misrepresentations, whether on a large or small scale, to provide the best possible care. Some physicians have been able to ignore the problem by refusing to accept HMO’s or types of insurance whose policies they can’t abide, and leave others to worry about patients who are not wealthy or lucky enough. They choose the third option that the Hafetz Hayim mentioned: evading a morally problematic situation by leaving it to others to resolve. Other patients who have fallen through the safety net, can only pray that good health keeps them out of the emergency room.
Most doctors and patients, though, struggle to manage “managed care” and regularly face cases where a change of diagnosis, a “white lie” on a form, will bring a medically necessary form of treatment within reach of a patient. I suspect that many of us have been the beneficiaries of this tactic at some point in the last few years. We’ve gotten a healing prescription or a reassuring diagnostic test result, or an extra day of recovery in the hospital.
The fight against the practice is as futile as Pharaoh’s legislation against the Jews. Each time the insurers enact set up a new hierarchy of case managers and procedures to prevent these types of fraud, “pen yirbeh,” new tactics spring up around them “ken yirbeh.” Ultimately, the practice continues not because of a failure of bureaucracy, but because, despite our protestations, many more of us would tell Heinz to steal if the theft was from a faceless HMO or insurance company, and not our neighborhood doctor or pharmacist. We all nod as it goes on in private, behind closed doors.
Kohlberg’s Heinz met Shifra and Puah out in the open last week in a Manhattan courtroom where a gynecologist and members of his staff were convicted of fraud. They had provided expensive fertility treatments to patients whose insurance did not cover such procedures, and then billed insurance companies for other, covered procedures. The doctors and their patients pointed to the new human lives that would never have been created without this deception. They acted above the law, they claimed, to reach a greater good. The law’s response is that no one was being condemned for providing valuable care, only for charging for it fraudulently. If the doctors had provided care pro bono, no case would have been brought against them.
Some ethicists further justify the decision: given the limited total resources available for health care, why should fertility treatments which create potential life have precedence over preserving the lives of existing people who are already at risk?
Our society has declared, de facto, that human health, and human life, have values equivalent to what the market will bear. Plans cover those procedures that they have to cover in order to ensure a steady flow of premiums. We, or our employers, have accepted this calculus and try to make educated guesses about how low a premium we can pay and still receive the level of treatment we need. Whatever level of coverage we are able to afford, there comes a point where certain treatments are simply out of reach, whether it is a $50 copayment, a $500 deductible, or two rounds of treatment at $10,000 each. Even if physicians offer their personal services for free, medicines, equipment, and technical staff make up the bulk of most medical expenses.
There is no tyrant’s decree threatening Jewish continuity in our society, but our fertility and fecundity are at risk nonetheless. In most Jewish communities, Jews are waiting longer than their non-Jewish neighbors to start having children, and having smaller families. For Jewish couples struggling with infertility, the financial barriers to medical treatment may be just as formidable a barrier as any royal decree. Some may be lucky enough to be covered, or may be able to stretch their own resources to make it possible. Others will have the extraordinary compassion of Pharaoh’s daughter, and have the courage to face the special challenges of adopting a child. Many more, though, must balance two competing commandments; be “fruitful and multiply” and “thou shalt not steal.”
Of course, the real challenge of ethics is not to apply the principles to some mythical Mr. Heinz, or patients in a New York courtroom, but to know what choice one would make for one’s self. I hope that my family never has to confront Heinz’s dilemma,but if we did, I can only wonder what the courageous women of Shemot, Shifra and Puah, would advise.
Rabbi Joshua Heller