[Avodah] Vaccinations - Rav Asher Weiss

[Micha Berger]

Baltimore Jewish Life carried an authorized translation (by R' Elli Fischer)
of R' Asher Weiss's teshuvah requiring vaccination. It is longer than
the snippets translated on his talmidim's web site:
https://en.tvunah.org/2018/08/31/vaccinations
https://en.tvunah.org/2018/11/01/new-question-vaccinations-and-halacha

See
https://www.baltimorejewishlife.com/news/news-detail.php?SECTION_ID=1&ARTICLE_ID=112570
or, just continue reading after my signature.

:-)BBii!
-Micha

-- 
Micha Berger             "The worst thing that can happen to a
micha at aishdas.org        person is to remain asleep and untamed."
http://www.aishdas.org          - Rabbi Simcha Zissel Ziv, Alter of Kelm
Fax: (270) 514-1507


In my humble opinion, this is an error. Rather, parents obviously have
an obligation to vaccinate their children, and I have ruled that it is
even permissible for parents to organize themselves in order to force
educational institutions not to accept unvaccinated pupils. I will
explain my thinking and my reasoning.

				       I

A basic presumption is that there is an obligation to avoid and prevent
danger. We find that there are two facets of this mitzvah: passive
avoidance and active prevention of danger. In his discussion of the
mitzvah of ma'akeh [building a guard rail on a roof] Rambam (Laws of
Murder and Preservation of Life 11:4) brings two sources. He writes:

Be it a roof or anything else that presents a hazard that people are
liable to stumble upon and die--for example, if one had a well or cistern
in his yard, whether or not it contains water--he is obligated to make an
enclosure that is ten tefachim [handbreadths] tall, or to make a cover
for it, so that a person does not fall in and die. Likewise, there is a
positive mitzvah to remove, to safeguard against, and to be exceedingly
cautious about any obstruction that endangers life, as it says: "Take
utmost care and scrupulously guard your lives" (Devarim 4:9). If he did
not remove them, but rather left dangerous obstructions, he has negated
a positive mitzvah and transgressed "do not bring blood upon your house"
(Devarim 22:8).

Thus, regarding any danger, "there is a positive mitzvah to remove, to
safeguard against, and to be exceedingly cautious about" it. We learn
from ma'akeh that one must take concrete action to remove danger,
and that we are further commanded to prevent danger, as it says,
"Take utmost care". In Minchas Asher on Devarim (Siman 7), I wrote at
length on the particulars of this mitzvah and whether it is de-Oraysa
or de-Rabanan. Here is not the place to expand upon this.

It would therefore seem perfectly obvious that there is a mitzvah to
vaccinate children in order to prevent them from contracting terrible
diseases. However, some cast aspersions and claim that since vaccination
sometimes causes children to become sick, it is improper to endanger the
children in the immediate term in the attempt to prevent future disease
and danger.

However, in my humble opinion, this claim is completely and totally
devoid of substance, because all studies that were done responsibly
establish beyond the shadow of a doubt that, with the exception of
mild side-effects, it is not at all common for vaccines to have severe
ramifications, and there are no known cases where death was caused by
vaccination for certain, even though hundreds of millions of children
have been routinely vaccinated. On the other hand, as the number of people
who do not vaccinate increases, danger increases as well; if many people
refuse vaccination, there is a risk that epidemics will break out and
cause mass fatalities, as happened before these vaccines were developed.

The three primary diseases against which the triple vaccination is
administered--measles, mumps, and rubella--are terrible diseases. In
particular, measles is a horrible disease that entails substantial risk
and is more contagious and transmittable from person to person than any
other disease known to the medical field.

There have already been measles outbreaks in several centers of Yahadus
Charedis. It is known that one baby has died, and others have gotten
very sick from this disease. I have written at length in several places
(Sheilos u-Teshuvos Minchas Asher, simanim 122-123) about the disagreement
between poskim as to whether a person may place himself in limited, remote
danger in order to save someone else from major, proximate danger. I
concluded that if the risk in question is exceedingly remote and very
uncommon, there is an obligation [to save the other person]. Moreover,
all would agree that doing so is, at the very least, an act of pious
virtue (midas chasidus).

Certainly one is obligated to undergo a procedure that entails some risk
in order to treat a disease that is liable to place him in great danger;
the disagreement was only about the parameters of the principle that one
places his own life ahead of another's life ("chayecha kodmin le-chayei
chavercha"), but it is obvious that all would agree that when it comes
to his own life, he is obligated to place himself in remote danger in
order to save himself from proximate danger.

Likewise, in the present case, a person is obligated to vaccinate
his children because vaccination is not dangerous at all, except in
extraordinarily rare cases, whereas lack of vaccination endangers those
very children. This is all the more certain given that lack of vaccination
constitutes public endangerment.

In truth, this question was already placed on the tables of kings [i.e.,
was addressed by leading rabbanim] more than 200 years ago, in 5545
[1784-5]. At that time, the English physician Edward Jenner developed
the smallpox vaccine. See Tiferes Yisrael (Avos chapter 3, Bo'az 1), who
writes that the "righteous Jenner" ("chasid Yenner") who developed this
vaccine is certainly one of the righteous among the nations ("chasidei
umos ha-olam") and will be rewarded in the next world for having saved
tens of thousands of lives.

Indeed, this disease claimed many victims before this doctor developed
this vaccine, as we find that the Shelah ha-Kadosh wrote (Sha'ar
ha-Osiyos, Derech Eretz 13-14), after expanding on the degree to which
a person must keep away from danger:

And I am astonished: With regard to the plague of smallpox, called
Blattern in German, which spreads among the children--may this never
befall us--why aren't people careful to get the children away and take
them out of the city!? These fathers will certainly be held accountable
for the deaths of nursing babies who committed no sin and children just
weaned from milk who committed no transgression, who died from this
sickness, and whose fathers did not spirit them away.

Magen Avraham cites these words (576:3), as does Mishnah Berurah (ad
loc. 14).

However, several Acharonim wrote that after the development of this
vaccine, it is no longer necessary to take the children away from
the city. Rather, they should be vaccinated. So it is written in
Zivchei Tzedek (Yoreh De'ah 116:41), who attested that they administer
vaccinations on a daily basis, and no one has ever been harmed, and so
state Kaf ha-Chayim (ad loc. 60) and Rav Chayim Palache's Tochechos Chayim
(on Parshas Vayeitzei).

This vaccine, developed by the aforementioned doctor, brought about the
elimination of the germ that causes this disease, to the extent that it
is gone from the world. This is not the case with respect to the measles
and the associated diseases mentioned above, which still exist; if people
stop vaccinating, there is a real risk of outbreak of these diseases.

In 5745, one of the rabbanim of London, Rav Avraham Hamburg, also known as
[Rav Avraham] Nanzig, published a book called Alei Terufah, in which he
discusses the question, which was controversial at the time, of whether
it is proper to vaccinate, even though in his day there were children
who died as a result of the vaccination, or whether it is preferable to
do nothing ("shev ve-al ta'aseh adif").

The Tiferes Yisrael also addresses this question in his commentary on Yoma
(8:6). He discusses whether it is permissible to administer this vaccine
even though it poses danger, and he concludes that since the danger of
not vaccinating is much greater than the danger posed by vaccinating,
it is certainly permissible and proper to vaccinate.

In his introduction to Sefer Alei Terufah, the author describes how his
little son and daughter were cut down while still flowering--they died
of this disease; and how when he lived in the holy community of the
Hague in Holland, there was a major outbreak, and many children died;
and how when he was in London, once again, many contracted the disease.
In the main part of the text he wrote that even if one in a thousand dies
from the vaccination, this is not a reason to refrain from vaccinating,
just as bloodletting and laxatives are routine. And even though "we
have seen several people who faint during bloodletting, and there are
reports that in very rare cases someone has died from bloodletting,"
one should nevertheless not refrain from these things, which improve
wellness and health. The same applies in the present case.

[Rav Hamburg] quotes several contemporary rabbanim who permitted this
treatment, even though, in their time, it seems that there were indeed
those who became sick and even died from this treatment.

In any event, it is clear and obvious that nowadays it is not only
permissible to vaccinate, but there is even an obligation, on order to
prevent danger to the individual and the public. Even if in their time,
hundreds of years ago, they vacillated, it was only because there were
indeed children who died from the vaccine, as is evident from their
words. This is not true of today's vaccines, so there is a bona fide
obligation to vaccinate.

				       II

I saw that Rav Shlomo Zalman Auerbach, in his Minchas Shlomo (II:82:12),
has a major chiddush about taking experimental drugs: Just as we do not
worry about risking lives to wage a milchemes mitzvah [a war that it is
a mitzvah to wage], so too, marauding beasts like bears and wolves are
akin to a milchemes mitzvah, and we do not worry about risking lives
to fight against them. The same applies during plagues and epidemics,
which have the same status as milchemes mitzvah. Consequently, he permits
taking experimental drugs.

But in my opinion, this rationale is very far-fetched. Aside from the
fact that it is obvious to me that the laws of waging war apply only
to actual wars between nations and armies, not to marauding beasts,
and certainly not to sickness and disease, in truth, there is no need
or purpose for this rationale, because in the modern world, they neither
expect nor allow people to volunteer to take drugs that endanger healthy
people. Nor do they administer experimental drugs, except to people who
cannot be cured and whose lives cannot be saved by any known means, or
unless there is no reason to suspect that these drugs would be harmful
to health.

In any event, this is a very innovative rationale that there are good
reasons to doubt. Therefore, there is no obligation, no mitzvah, and
no permission to endanger oneself in order to advance medical research
on experimental drugs. However, this is irrelevant to the case at hand,
because the effectiveness of these vaccines has been proven beyond all
doubt millions of times, and the danger they entail is miniscule.

				      III

It is indeed true that since the vast majority of children and adults
in modern society have been vaccinated, these diseases have become
exceedingly rare. Therefore, it would seem that there are grounds for
parents to claim that they should not endanger their children through
vaccination, causing them pain and side-effects, when the expected risk of
non-vaccination is so miniscule. However, if we allow these parents not
to vaccinate their children, the results would be entirely predictable:
many would refrain from vaccinating their children, motivated by maternal
compassion and paternal love, and then the great danger of outbreaks of
diseases would emerge once again. Therefore, refraining from vaccination
is not permitted in any way. In truth, I have ruled, year-in and year-out,
that there is an obligation to vaccinate children for this very reason,
yet the reality is that more and more parents refrain from vaccinating
their children, and we are now witnessing a broad outbreak of the measles.

However, it seems that even if we would say that an individual can evade
[vaccination] and still claim that he has kept his child safe, it would
nevertheless stand to reason that there is an obligation to vaccinate
children, and for two reasons:

1. I have explained elsewhere that any idea or action that would cause
damage and injustice if done en masse, even if it would cause no harm,
injustice, or evil when done by an individual, may nevertheless not be
done by an individual. It is not just or right for an individual to do
what the masses may not do. Such a person is a villain with license
from the Torah ("naval birshus ha-Torah"), for due to the honesty of
the masses who walk the straight path in their innocence, this person
will conduct himself differently and derive unfair benefit.

We learn this from the Bavli, the Yerushalmi, and Midrashei Chazal.

Sanhedrin 109b says that the attribute of the people of Sodom was:
"When someone was drying out garlic or onions, each person would come and
take one, and would say, `I took one.'" And see Rashi ad loc., that each
person would say, "I only took something small," but between all of them,
they took everything this person had. Yerushalmi Bava Metzi'a 15a says the
same of the people of the generation of the Mabul, explaining that this
is the meaning of the pasuk, "the land was filled with thievery." This
likewise appears in Bereishis Rabbah, parsha 31. From their holy words,
we learn a fundamental element of just laws: Anything that would be
wicked or unjust if done en masse is forbidden for an individual to do.

The same law and the same reasoning apply in the present case. It is only
because most people vaccinate their children, thereby causing them pain,
that the minority can refrain from vaccination. However, the more people
refrain from vaccinating their children, the greater the danger, to the
extent that if most people would act in this manner, things would revert
to what they were; we would return to the medieval era, and hundreds
of thousands would die from terrible diseases. In cases like this,
the obligation to vaccinate applies to each and every individual.

I know that there is room to engage in mental acrobatics and distinguish
between an act of commission ("kum ve-asei"), which would be forbidden,
like those who stole less than the value of a perutah, and an act
of omission ("shev ve-al ta'aseh"), like refraining from vaccination;
moreover, one can claim that maybe this only smacks of a prohibition when
many people come at once and steal everything that their fellow has,
like the generation of the Mabul and the people of Sodom did. However,
in my humble opinion, it makes more sense that there are no grounds to
make such a distinction, for in their essence the cases are similar,
as is clear to anyone with understanding and intelligence. Indeed, the
facts have been proven. Reality--that many people have been refusing
vaccination recently, and now many children have caught the measles--is
slapping us in the face.

2. It seems that this halakhah can be derived from the obligation of all
residents of a city to take part in guarding the city and repairing its
walls, as explained in Bava Basra (8a) and in Shulchan Aruch (Choshen
Mishpat 163). Just as all residents of the city must either share in the
actual guarding or the expenses of guarding the city, and even though
it is clear that if one person shirks his duty to guard or pay the
walls will not crumble and the enemy will not prevail, the obligation
to guard the city nevertheless applies to each person equally, and no
individual may dodge it, so too in the present case. For everyone is a
partner when it comes to anything that is for the betterment of society
or a public necessity. Each person must contribute his equal share, and
there is no difference between a financial obligation and the obligation
to vaccinate. The same law applies to both.

This all applies in a case where one can refrain from vaccinating
his children without risking their health, because enough others do
vaccinate. The present situation is far more severe, though, and we need
not resort to creative readings of aggados to determine that vaccination
of children is obligatory. The disease has broken out already, and every
parent who refuses to vaccinate his children is placing them directly
in harm's way.

Translated by Elli Fischer
This translation has been reviewed and approved by Rav Asher Weiss.