[Avodah] [Lehrhaus] Third Dose vs. Third World Countries: Halakhah Approaches...

Micha Berger micha at aishdas.org
Thu Nov 4 17:14:39 PDT 2021

I was this in the Lehrhaus, and found the topic intriguing.

I'm skipping to the Torah portion.

Tir'u baTov!

The Lehrhaus
Third Dose vs. Third World Countries: Halakhah Approaches COVID-19
Vaccine Allocation
By Sharon Galper Grossman and Shamai Grossman
November 4, 2021


A Halakhic Perspective

Two gemarot, Gittin 45a and Nedarim 80b, offer guidance regarding
the allocation of limited resources and suggest that Halakhah rules
differently for communities and individuals. The mishnah on Gittin 45a
says that we do not redeem captives for more than their monetary value
"for the betterment of the world." The gemara offers two explanations for
why we do not do so; redeeming captives for more than their monetary value
will either impoverish the community or incentivize and encourage future
kidnappings. While the first explanation emphasizes the financial danger
to the community and the second explanation addresses the existential
threat, both explanations suggest that the needs of the community trump
those of the individual and that ultimately policy decisions must consider
the larger good of the community. Ultimately, the gemara does not reject
either explanation and leaves open the possibility that both explanations
inform this policy. Although Rambam Matanot Aniyim 8:10-11 teaches that
there is no greater mitzvah than redeeming captives, the needs of the
community nonetheless override it.

At first glance, Gittin 45a might seem irrelevant to a discussion
regarding allocation of COVID-19 vaccines, as sending vaccines to poor
countries will certainly not impoverish wealthy countries, although it
will deplete them of a limited resource. However, the gemara's broad
justifications for refusing to redeem captives for more than their
monetary value suggest that we are not merely concerned with the impact of
redeeming captives on the financial status of the community, but also with
its effect on the broader welfare of the community. Diverting vaccines
affects the broader welfare of the community because taking such action
could compromise the safety of the community, placing it at greater risk
of a life-threatening disease. If vaccinated individuals in wealthy
countries do not receive boosters and boosters are instead diverted
to poor countries, the vaccinated may become infected. Infection of
the vaccinated will increase transmission, perpetuate the pandemic,
and contribute to the development of variants potentially resistant to
the vaccine. Ultimately, mortality in wealthy countries will rise. Thus,
Gittin 45a can inform a discussion regarding reappropriation of COVID-19
vaccines to poor countries, since this policy can potentially endanger
the community.

Does Gittin 45a definitively argue for one side of the debate about
allocation of COVID-19 vaccines? On the one hand, this gemara might argue
in favor of wealthy governments retaining boosters for vaccinated adults
and vaccines for children because diverting these doses to poor countries
might bankrupt the community of doses and compromise its safety. It is
noteworthy that Gittin 45a rules in favor of the community even though the
captive is one of its members. Presumably if the captives did not belong
to the community, the community would have even less obligation to redeem
them. In the current COVID-19 vaccine situation, wealthy governments might
have even less obligation to poor countries since those in the greatest
danger are not members of the wealthy community. Alternatively, in a
world of globalization where countries have fluid borders and variants
which develop in one country quickly spread across the world, one could
argue that the world is one large community. As such, wealthy countries
have an obligation to the citizens of poor countries.

On the other hand, one might understand Gittin 45a as simply a numbers
game: One may not redeem an individual captive and endanger the many other
present and future citizens of the town. This is the position of Rabbi
Ephraim Oshry in Shut Mi-Ma'amakim 5:1. During the Holocaust, community
leaders turned to him asking whether they could agree to deport some Jews
in order to save the rest of the community. Rabbi Oshry ruled that they
must save the greatest number of lives possible and could agree to the
deportation, consigning the deported to certain death, because doing so
would save the rest of the town. Rav Shlomo Zalman Auerbach similarly
suggests that Halakhah prioritizes saving the greatest number of lives
possible.[38] Rabbi Kook disagrees. He argues that one may not place an
individual in danger to save the many. In Mishpat Cohen 142, he writes,
"the worth of a person is hidden beneath the eye, there are people worth
more than 600,000, and if not, maybe one of his descendants might be
worth that much." In wartime, however, this principle might not apply;
in that same teshuvah, Rabbi Kook echoes this admonition to save as many
lives as possible during war.

How would these principles apply during a pandemic? In his article
"Rationing During a Pandemic Flu," written under the guidance of Professor
Shimon Glick, Dr. Aryeh Dienstag suggests that Rabbi Oshry would likely
rule that during a pandemic, one must save as many lives as possible
at all costs.[39] This could be interpreted as diverting vaccines to
poor countries where they could have the greatest impact. With five
billion unvaccinated individuals worldwide at substantially greater risk
of COVID-19 than the 190,000,000 fully vaccinated Americans who would
benefit from a booster, it is possible that more lives will be saved by
diverting the vaccine, and therefore perhaps the community may bankrupt
itself for the unvaccinated.

Nedarim 80b

Nedarim 80b describes two adjacent towns, one of which owns a spring.
If both cities need the water, the city that owns it takes precedence.
The same holds if both cities need the water to launder clothing. What
if the city that owns the water needs it to launder clothing and the
city that does not own the water needs it to live? In such a situation,
the Tanna Kamma holds that the city that does not possess the water
takes precedence, since its need is stronger.

However, Rabbi Yosi disagrees with the Tanna Kamma, stating that the
city with the spring may use the water for their clothing even though the
residents of the adjacent city might die without it, because unlaundered
clothing can cause suffering and endanger lives. The Sheiltot Rav Ahai
Gaon Parshat Re'eh 147 explains that failure to launder clothing will
lead to tza'ar - suffering - and surprisingly, concludes that Halakhah
rules in accordance with the opinion of Rabbi Yosi that we allow the
residents of the city to launder their clothing. Shut Maharsham 2:210
believes that Rambam also rules in accordance with Rabbi Yosi.

At first glance, Rabbi Yosi's position is difficult to understand. How
can the city with water absolve itself of its obligation to save the
lives of its neighbors and allow them to die of thirst? While not doing
laundry can cause blindness, madness, and boils, these sufferings will
arise over the course of several months, and seemingly should not take
precedence over the greater and more immediate need of the neighboring
town! For this reason, Ahiezer 2:232 believes that the Halakhah adheres
to Tanna Kamma's position. He explains that under Rabbi Yosi's ruling,
laundry would only take priority over the lives in the adjacent city
when that city has already received enough food and water from another
source to survive. Had it faced true danger of death, Rabbi Yosi would
not have prioritized laundry over survival.

In contrast, Ran believes that this scenario is in fact a case where the
adjacent town does not have enough water to survive, and explains that the
other community may nevertheless use the water to launder clothing. This
is because failure to launder causes "physical suffering," a broad
phrase that might refer to physical discomfort or danger to life. Rav
Moshe Feinstein explicitly states that failure to launder will lead to
physical discomfort and ultimately pikuah nefesh.[40] Professor Avraham
Steinberg and Rabbi Moshe Tendler clarify that failure to launder clothing
will lead to disease. They view the town's decision to launder clothing
as a public health measure to prevent potential widespread disease.[41]
Ran views the position of Rabbi Yosi as consistent with the opinion of
Rabbi Akiva in Bava Metzia 62b regarding two individuals who are lost in
the desert with a jug of water. Ben Petura rules that they should both
drink although both might die; Rabbi Akiva argues that the one who owns
the jug should drink since ve-hai ahikha imakh, hayekha kodmin - your
life takes precedence. The owner of the jug may not endanger himself
even though his friend will certainly die. Rabbi Yosi rules that the
needs of the city that owns the spring take precedence over those of
the adjacent city because hayekha kodmin.

Netziv in Ha-amek She'elah on Sheiltot Rav Ahai Gaon 4 explains that
Rabbi Yosi broadens Rabbi Akiva's position from the individual to
the communal level. Failure to launder clothing endangers lives, and
therefore hayekha kodmim dictates that the city with the water use it
for laundering clothing, even if this decision endangers the lives in
the adjacent city. Not laundering clothing creates a safek pikuah nefesh
- uncertain danger. Tanna Kamma rules that one must place himself in
safek pikuah nefesh to save another in certain danger, while Rabbi Yosi
believes that one may not place himself in a possible danger to save
those in definite danger. Although we might consider self-endangerment
to save others midat hassidut - an act of piety - the people of the city
with the spring may not endanger themselves to save the adjacent town.

Rabbi Yossi Sprung, Rosh Beit Medrash of the Beit Medrash Govoha for
Medical Halacha, suggests that Rabbi Yosi attaches great significance
to the danger posed to the community. Something that is considered a
low level of danger for an individual might qualify as sakanat nefashot
for a community. There is little danger if a few people cannot launder
clothing, but much if everyone in the city cannot. For this reason,
Rabbi Yosi ruled that the people of the first town may launder their
clothes, as they face possible communal danger, safek pikuah nefesh,
even though their doing so places the adjacent city in definite pikuah
nefesh.[42] Rabbi Moshe Tendler suggests that if two individuals were in
the desert with enough water for both to drink, but if one used the water
to launder clothing the other would die, Rabbi Akiva would rule that they
must share the water for drinking.[43] However, regarding the spring,
Rabbi Tendler continues, it is the responsibility of the city to consider
unborn generations. The future and the present become one. Failure to
launder clothing over the course of time will lead to certain pikuah
nefesh, as the danger to the community is real, and not just potential.

>From the Individual to the Community

Indeed, Halakhah defines pikuah nefesh more broadly for a community than
for an individual. Shabbat 42a presents the opinion of Shmuel that on
Shabbat one may violate a biblical prohibition and extinguish a lump
of fiery metal in the public domain so that no one will be hurt. Ramban
writes, "It is astonishing how we permit an absolutely forbidden labor
because of potential injury where there is no danger to life. Perhaps
according to Shmuel all potential injury to the public is considered like
a danger to life." Along these lines, Ran Shabbat 42a states that, "any
danger to the public is like sakanat nefashot."[44] Rav Shaul Yisraeli
writes that, "whatever concerns public welfare or removal of hazards,
it is all regarded as pikuah nefesh. For everything connected to public
welfare has an indirect element of pikuah nefesh."[45]

Poskim list several other factors to consider when prioritizing the
allocation of limited resources on a communal level. These include A)
special consideration for a pandemic or during a war; B) the special
status of children; and C) the unique obligation of a Jewish government
to its citizens. In the midst of a pandemic, halakhic decisors allow
leniencies that might otherwise not apply. For example, although Tzitz
Eliezer 9:17 rules that a physician should not endanger his life to save
patients, he may do so during a pandemic.

Rabbi Shabtai Rappaport, head of the Beit Midrash in Bar-Ilan University
and grandson-in-law of Rabbi Moshe Feinstein, believes that the
government must prioritize pikuah nefesh regarding its citizens over
that of other countries, especially during a pandemic. He states that
a community may redistribute resources when redistribution does not
compromise the care of those currently in danger or need of those
resources. He explains that before a pandemic starts, a country with
more resources that is not yet suffering might be obligated to give
resources to a country that is. However, once the pandemic has reached
the country with resources, that country must give its citizens priority,
even if the danger to them is remote.[46],[47] Citing this position,
Dr. Dienstag states, "it seems based on the ruling of Rabbi Akiva in the
Talmud Bava Metziah... that a country with medication must first worry
about its own citizens before attempting to aid another country."[48]

An unvaccinated healthcare worker in Africa exposed multiple times
each day to COVID-19 faces greater danger of death from COVID-19
than a twice-vaccinated healthy thirty-year old vaccinated eight
months ago in the US. His risk of infection might be comparable to
that of a 65-year old or an immunocompromised individual vaccinated
more than eight months ago. Regarding the question of which individual
should receive the vaccine, Halakhah would likely favor the healthcare
worker in Africa, because he faces a more certain danger. However, on a
communal level, the authors believe that Halakhah would reach a different
conclusion. For a community, Halakhah equates possible danger with certain
pikuah nefesh. The US and Israel possess doses of COVID-19 vaccine, a
limited, critical, life-sustaining resource similar to the city's water
in Nedarim 80b.[49] The Western countries that have the vaccine must
first worry about their own citizens and not those of another city or
continent. Although the risk of COVID-19 infection in the vaccinated is
substantially lower than that of the unvaccinated, on a communal level it
is certain that without a booster, six months after vaccination at least
some individuals in Israel, the US, or another Western country will die
or become severely ill with COVID-19. Because Halakhah defines pikuah
nefesh broadly on the communal level, even a small risk of COVID-19
morbidity will become pikuah nefesh for a community or country. While
wealthy countries might consider diverting vaccines to poorer countries
when the level of COVID-19 infection reaches the influenza standard, in
the midst of a pandemic with more than 100,000 new cases daily in the
US, Halakhah leans toward offering booster shots to bolster citizens'
immunity over reappropriating doses to poor countries.

As broadly as Halakhah defines pikuah nefesh for issues of public safety,
it expands it even further for issues overseen by a Jewish state. Rav
Goren argues that the state of Israel, as the representative of the
Jewish people, must consider even remote future pikuah nefesh concerns. A
Jewish country has a unique responsibility to care for the needs of its
citizens. "When we are dealing with an independent Jewish state... this
national responsibility does not express itself in the daily individual
planning of medical services in Israel, but rather in overall long-term

Although several countries have authorized boosters, Halakhah offers an
even stronger endorsement of Israel's decision for two reasons. First,
Israel has described itself as at war against COVID-19, with its
healthcare system on the verge of collapse. Common sense dictates that
a country at war cannot be expected to relinquish its ammunition to
others, even if those other countries are also at war. Such a decision
would be tantamount to national suicide. This wartime analogy is not
merely rhetoric but has halakhic validity and implications. In a teshuvah
addressing the halakhic permissibility of undergoing experimental medical
therapy, Rav Shlomo Zalman Auerbach in Minhat Shlomo 2:82:12 broadens
the halakhic definition of milhemet mitzvah - an obligatory war -
beyond an existential battle against an invading army to a situation
where wild animals and bears overrun the city. He writes that when
this happens, it is a mitzvah for anyone to desecrate the Shabbat in
order to save as many lives as possible. Life-threatening diseases
are, as Rav Shlomo Zalman Auerbach describes, ke-ein milhemet mitzvah,
essentially a milhemet mitzvah. If our society lived under Da'at Torah,
the beit din would authorize medicines to help us battle disease. The
contemporary equivalent of the beit din is our medical experts, who are
invested with the halakhic authority to prescribe and treat, and to send
us out to fight diseases. In the midst of the COVID-19 pandemic we are
also engaged in ke-ein milhemet mitzvah, essentially a milhemet mitzvah,
which allows Israel to give protecting her citizens special priority.

Second, as a Jewish State, Israel has an additional, unique obligation
to protect its citizens. To this end, Prime Minister Bennett strongly
defended Israel's decision to offer boosters to all citizens over age
16, offering five reasons to support his decision. First, we are at war
with COVID-19 and must adopt wartime strategies under which the elected
leader, not health officials or generals who are often risk averse, makes
the decisions. The pandemic affects every aspect of life, including the
economy and mental health. The elected leader must balance these competing
interests and act decisively in the best interests of his country. Second,
both the efficacy of the vaccines and people's vigilance in adhering
to COVID-19 precautions have waned. Third, boosters are safe. Fourth,
boosters could help the country avoid another lock-down; had the country
waited three more weeks to authorize boosters, the healthcare system would
have collapsed under the volume of patients with severe infection. Fifth,
allowing vaccine efficacy to decline further would squander the gains made
in the initial vaccination campaign, erode public trust in the vaccines,
and feed the anti-vaxxer movement.

Is It Really a Zero Sum Game?

But ethically, how could Halakhah possibly favor keeping doses for one's
citizens when five billion people have not received a single dose of the
vaccine? Let us return to Rabbi Oshry's argument that Halakhah favors
saving the greatest number of lives. Even Rabbi Kook, who rejects this
principle under normal circumstances, suggests that saving the greatest
number of lives applies during wartime.[51]

Diverting vaccines to Africa would seem to be the most effective means ...
Are there limits to Halakhah's requirement that governments protect
their citizens even at the expense of other populations? Would Halakhah
ever favor diverting boosters and vaccines to poorer countries in need?
Does Halakhah apply differently to specific subpopulations?

Based on Rabbi Shabtai Rappaport's position noted above, that during a
pandemic, countries may not divert medicines from their citizens to other
countries in need, we believe that when COVID-19 becomes a virus with a
background level of risk comparable to influenza and the United States
has sufficient doses of the vaccine to meet the demand of its citizens,
the government may, and perhaps must, allocate doses to countries in
need. Until that time, governments must retain doses to vaccinate their
citizens and administer boosters to the already-vaccinated in order to
guarantee continued vaccine efficacy.

Furthermore, we believe that Halakhah does not distinguish between
subpopulations. Data from Israel indicate that vaccine efficacy declines
across all age groups. It is clear that with time, the vaccine protects
those over age 60, those between ages 50 and 59, and those between ages
40 and 49 less well. Although no one has yet demonstrated a similar
decrease in protection for those under age 40, the absence of such an
effect in this population is likely due to its more recent

[38] Minhat Shlomo Tanina 86:1.

[39] Aryeh Dienstag, "[352]Rationing During a Pandemic Flu," Verapo

[40] Iggerot Moshe Yoreh Deah 1:145.

[41] Translation by Avraham Steinberg, "Allocation of Scarce Resources,"
[355]Encyclopedia of Jewish Medical Ethics, 46 (Feldheim, 2003); Frontal
lecture, Yeshiva University, Winter 2004.

[42] Rabbi Yossi Sprung, "[357]Pikuach Nefesh of the Community and
Individual," Beit Medrash Govoha for Medical Halacha, September, 2018.

[43] Moshe Tendler, "Problems in Triage: Public Expenditures and
Saving One Life versus Another," Sefer ha-Yovel in Honor of Rabbi J.B.
Soloveitchik [in Hebrew] (New York: S.O.Y., 1984).

[44] For a more detailed discussion regarding the definition of communal
pikuah nefesh, please see Sharon Galper Grossman and Shamai Grossman,
"[360]Sharpening the Definition of Holeh Lefanenu: The Diamond Princess
and the Limits of Quarantine," The Lehrhaus, May 19, 2020.

[45] Rav Shaul Yisraeli, Amud ha-Yemini (Mekhon ha-Torah ve-haMedinah,
2000), 214-215.

[46] Shabtai Rappaport, "Priorities in Allocating Public Resources for
Medicine," Assia 49-50, Tamuz 1990, p17-5.

[47] Dienstag, "[364]Rationing During a Pandemic Flu."

[48] Ibid.

[49] The situation presented in Nedarim 80b assumes that the death of
those in the adjacent town does not endanger the town that withholds the
water in order to do laundry. For COVID-19 vaccines, withholding vaccines
from poor countries to boost the vaccinated in wealthy countries could
ultimately endanger the vaccinated by contributing to the development of
variants. However, variants can develop in these wealthy countries even if
they keep their vaccine doses and certainly if they earmark their vaccines
for poor countries and leave their vaccinated with diminished immunity. In
fact, modeling studies indicate that variants are most likely to develop
in wealthy countries that have high levels of vaccination but have not
achieved herd immunity. Nevertheless, countries do have the ability
to control the spread of the pandemic and close their borders. This was
the approach of New Zealand and Australia. See Simon A. Rella, et al.,
"[367]Rates of SARS-CoV-2 Transmission and Vaccination Impact the Fate
of Vaccine-Resistant Strains," Sci Rep 11, 15729 (2021).

[50] Rav Shlomo Goren, Torat ha-Refuah, 80.

[51]Mishpat Cohen 143

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