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#3) and in the Rosh (Bava Kamma, Ch. 2:6) he is not held responsible.
Obligation to recompense someone for therapy His friend can legitimately harbor bad feelings towards him, but he
expenses and suffering
cannot demand payment.
In our case as well, the misleading advice resulted in the birth of se-
We have established that parents have no halachic right to sue on verely blemished babies instead of healthy and complete ones. There
behalf of their sick child because of erroneous genetic advice. There is is no damage here, but rather a “loss of profit” so to speak, and for this
also no claim against the child’s mother, because if it were not for the we cannot obligate payment by Torah law. This is especially so since
physician’s error, she would not have had a child at all. However, the the damage was not certain to occur. The parents could have given
father may have the right to sue the physician for the suffering and birth to healthy babies who are only carriers of the Hunter gene but
fear, the hardships and the exorbitant medical expenses he incurred do not have the disease themselves.
as a result of the physician’s mistaken advice (because the father is The Chasan Sofer (#137) was asked about a man whose wife and
healthy and could have married a healthy woman). his wife’s sister both died of whooping cough. After her death, his
Sometimes, erroneous genetic advice may cause a death. In ma- wife appeared to him in a dream a number of times and asked him to
seches Yevamos 64b it says: A man should not marry a woman from marry her single sister, threatening him with severe punishments if he
a family of epileptics or a family of lepers, meaning that if there were did not marry her. The Chasan Sofer ruled that the man is permitted
three cases in the family, one should not marry into the family, as fu- to marry her, according to the Rashba (Yevamos 64b s.v. midesamah),
ture children may also be affected. The Shulchan Aruch (Even Haezer which states that an illness is only established as affecting an entire
#2:7) rules the same. family after three occurrences. This differs from the case of a baby

(From the words of Aruch Hashulchan (ibid., 2:4) we learn that the boy whose two brothers bled to death after circumcision. In the
words of Chazal are not just good advice but also a prohibition. The case of the baby boy, two occurrences in the family are enough to
Pischei Teshuvah (ibid., 8) brings the poskim’s rulings about a woman determine that circumcision would be a danger to the life of the baby,
who has two sisters who are either epileptics or lepers. Is one allowed which is not so in this case. The difference is that in the case of a
to marry her? The Aruch Hashulchan rules as follows: if a woman has healthy woman whose sisters died of illness, we are not concerned
two sisters who are epileptics or lepers, it is prohibited to marry her that a certain act will put her life or the life of her child in danger, but
because of the presumption that any children born to them will be rather that she may bring a sick child into the world. There is always
epileptics or lepers.) the possibility that she will have a healthy child as well. Thus, it takes
The Yam Shel Shlomo (Yevamos, Ch. 6:38, cited in Pischei Teshuvah, three occurrences to set a halachic reality in this case. (Cited in Otzar
ibid.) asks: Why is it that regarding death following circumcision a Haposkim, Even Haezer #2:43)
presumption is established after only two consecutive events, while
regarding genetically transmitted epilepsy or leprosy, we wait for 5. Mistake of an Expert
three occurences in the family to prohibit one from marrying into the If an expert physician gave advice free of charge, and then he made
family? (See Shulchan Aruch, Yoreh Deah #263:2.) Should we not rule a mistake, since, for example, he did not make the effort to find out
stringently when it is a question of danger to life? that there is a new blood test that can reveal with certainty if the
We learn from this question that if a man marries a woman from woman is carrying a disease, the physician is exempt from paying for
a family of epileptics or lepers, he is viewed as killing his child, for he his error. As explained in Shulchan Aruch (Choshen Mishpat #306:6):

40 1 Medical-HalacHic Responsa of Rav ZilbeRstein Erroneous genetic advice 2 45