This essay compares two American legal doctrines—deathbed bequests and the therapeutic exception to informed consent—with their Jewish law counterparts in order to contribute to the literature on these doctrines, evaluate recent empirical data and make suggestions concerning the current position of academics and practitioners.
Martin explores the history and theory underlying the laws of delivery for deathbed bequests and the therapeutic exception to informed consent. In order to highlight the principles motivating the common law, he examines the Jewish law’s approach to these doctrines. He posits that Jewish law and common law doctrines reveal contrasting attitudes about the appropriate balance of autonomy and beneficence in law. The well-recognized effects of stress on the terminally ill raise serious bioethical questions, and recent empirical medical data suggest that the common law’s position should be reevaluated. Martin surveys current law, physician practices and the relevant empirical medical data. He then challenges the prevailing American view, and recommends bolstering the therapeutic exception to informed consent.