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Facebook and the End of Organ Donation

 

Two recent news items paradoxically raise the promise of more organ donations and the eventual end of them altogether. Facebook’s recent introduction of an organ donor status (link), an attempt to boost donor participation, affords a welcome opportunity to discuss a recent comprehensive work on Judaism and the definition of death. While many organs, particularly those most in demand, may be donated according to all contemporary rabbinic opinions, some critical organs–most notably the heart–can only be donated during the period after brain stem death and before irreversible cessation of heartbeat, about which rabbinic authorities debate whether death has yet occurred. My friend R. Dr. David Shabtai’s Defining the Moment: Understanding Brain Death in Halakhah (in the publication of which I played a small role) exhaustively reviews the halakhic literature to date, placing each view within the proper context and challenging each view’s textual, logical and medical bases. However, another recent news item points toward an upcoming resolution to this entire debate.

Brain death is never explicitly considered in the Talmud, leading recent halakhic decisors to arrive at five different positions on the subject:

  1. Acceptance of brain stem death – R. Dr. Moshe Tendler contends that brain stem death effectively severs the brain from the body, yielding the physiological equivalent of decapitation and hence death.
  2. Acceptance of whole brain death – R. Shlomo Zalman Auerbach accepts a dual definition of death–either the irreversible cessation of heartbeat or the death of the entire brain. Brain stem death inaugurates a condition of doubtful (safek) death, which is insufficient to allow organ harvesting.
  3. Doubtful acceptance of brain stem death – R. Hershel Schachter requires the continued functioning of the brain, heart and liver. R. Schachter considers the failure of only one system to be a case of doubtful death. He also accepts that cessation of blood flow to an organ is a case of doubtful death of that organ. Therefore, if brain stem death entails the cessation of blood flow to the brain, then the brain might be considered dead (doubt #1) and the person might also be considered dead (doubt #2).
  4. Partial acceptance of whole brain death – R. Ahron Soloveichik considered complete brain death to be part of a determination of death. He required the combined irreversible cessation of breathing, heartbeat and brain activity before death can be declared.
  5. Rejection of brain death – R. Moshe Feinstein, the Israeli Chief Rabbinate, R. J. David Bleich and R. Eliezer Waldenberg all reject any inherent place of brain death within a halakhic determination of death. R. Feinstein’s written record, which R. Shabtai examines in five exhaustive (and exhausting) chapters, remains ambiguous but the Israeli Chief Rabbinate is clear in endorsing a definition of death based on the irreversible cessation of breathing. This position effectively accepts brain stem death because a person in such a condition cannot independently regulate breath. R. Waldenberg defines death based on the irreversible cessation of heartbeat while R. Bleich utilizes a comprehensive concept of “vital motion.” According to neither of these two latter rabbis’ definitions does brain stem death qualify as death.

All of these positions are subject to medical, logical and textual challenges. R. Shabtai scrutinizes each view and, in a spirit of generally charitable reading, attempts to respond to these challenges, often successfully. Among the medical challenges are (respectively):

  1. Acceptance of brain stem death – Even after brain stem death, parts of the brain–most notably the hypothalamus–continue to regulate the body, thereby implying the “decapitation” is incomplete. Responses to this challenge include that all neurological functions have ceased even if hypothalamic functions continue and that the “halakhic brain” constitutes only the control center for bodily movement and not the entire brain.
  2. Acceptance of whole brain death – The definition of the death of every brain cell is unclear: does it mean functional (unable to use energy) or structural death (burst open or none of its contents move in a meaningful way)? What test can determine that every brain cell has died, however that is defined? And what is the halakhic definition of the “entire brain? No answers are forthcoming, which only means that the view requires further fleshing out.
  3. Doubtful acceptance of brain stem death – The doubt regarding brain death assumes that a brain stem dead person’s brain is similar to a gangrenous arm, lacking any blood flow. The medical reality is that blood still reaches parts of the brain. This would demand considering a brain stem dead person to be definitely alive.
  4. Partial acceptance of whole brain death – R. Shabtai does not challenge this view and only presents it briefly because it was written in response to short questions and does not contain a thorough analysis.
  5. Rejection of brain death – There is little here to challenge from a medical perspective.

R. Shabtai also subjects each view to logical tests, posing extreme cases that challenge the definitions of death. And in an extremely thorough fashion, he reviews the relevant Talmudic and halakhic texts and reveals the interpretive assumptions underlying each view, subjecting them to intense scrutiny.

R. Shabtai provides many surprises, such as R. Ovadiah Yosef’s and R. Shlomo Amar’s opposition to organ donation. However, he offers no conclusion, choosing to contribute an analysis and evaluation of existing views and not an opinion of his own. What emerges from his study is that very few rabbinic authorities would allow for the blanket consent to donate organs implied by the Facebook status. Even the Israeli Chief Rabbinate would not because it requires that a rabbi participate in the declaration of death (link).

However, the nature of this debate is set to change significantly in the upcoming years. While organ transplants are currently the only way to save thousands of dying people, the viability of artificial organs is steadily progressing. Earlier this week a permanent artificial heart was implanted into a patient in Israel (link), another in a series since the first in 2010 (link). While artificial organs have existed for decades, they have recently made great strides. The day will eventually come, if not in years then in decades, when implanting artificial organs becomes the preferred medical method. When that happens, we will no longer have to precisely define death in order to harvest organs from the dying or the dead.

 

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About the author

Gil Student

Rabbi Gil Student is the founder, publisher and editor-in-chief of Torah Musings.

 
The opinions and facts here are presented solely by the author. Torah Musings assumes no responsibility for them. Please address religious questions to your rabbi.
 

55 Responses

  1. Glatt some questions says:

    While organ transplants are currently the only way to save thousands of dying people, the viability of artificial organs is steadily progressing. The day will eventually come, if not in years then in decades, when implanting artificial organs becomes the preferred medical method. When that happens, we will no longer have to precisely define death in order to harvest organs from the dying or the dead.
    ——————————-
    The other medical advance that may change the equation is the ability to harvest organs for transplant even after a person’s heart stops beating (and after all poskim would agree that a person is halachically dead). Right now kidneys can be harvested for a very brief period of time–about 20 minutes–after a heart stops beating. It’s not impossible that in the future, other organs may be able to be harvested after a heart stops beating — and that the period that these organs can be harvested will be lengthened from 20 minutes to much longer. Logically, there should be no reason why any posek would object to organs being transplanted in this case to save a life, but I wonder whether in fact poskim will rule in this way.

  2. Michael T says:

    Not to mention possibilities for lab-grown organs derived from the patients’ own tissues. Not so far off. http://www.pbs.org/wgbh/nova/body/replacing-body-parts.html

  3. noam stadlan says:

    Addressing the pros and cons of the book would require a lot more time and space than presently available. R/D Shabtai obvously put a lot of time and effort into the book and presents a large amount of data and some challenging questions. Just one point which illustrates one problem. ‘Brain death is never explicitly considered in the Talmud.’ R/D Shabtai quotes Rabbi Bleich’s position extensively(and appears to be a supporter of it). Rabbi Bleich’s idea is that death is the cessation of ‘vital motion.’ I am not sure that ‘vital motion’ as Rav Bleich understands and defines it(especially how he seperates out how an artificial heart in some cases does supply vital motion and in some cases doesn’t) is explicitly considered in the Talmud either.(Rav Bleich in fact quotes Black’s law dictionary as the source of the term). If it was not explicitly stated in the Talmud, why was this also not remarked upon and examined? Unfortunately, there still is not an exact definition of this ‘vital motion’. (the book gives some examples and vague guidelines which lack any sort of precision). Besides giving an exact definition, the question that the ‘vital motion’ advocates need to answer is this: Can a body have ‘vital motion’ without neurological function?

  4. James says:

    I dont understand why RMF’s view is characterized as “Rejection of Brain Death” I think RMDT would disagree and based on the HODS website, so would R’ Dovid Feinstein.

  5. Ralito says:

    Recommended reading (especially for Rabbi Slifkin who I hope is reading this) from the latest issue of Discover magazine.
    http://discovermagazine.com/2012/may/10-the-beating-heart-donors

  6. Jon_Brooklyn says:

    I’ve been thinking the same regarding homosexuality. It wouldn’t surprise me if within a generation or two we have the technology to allow a person to determine their sexual orientation. Whether that technology will ever be utilized may be less likely – obviously research along those lines will face incredible opposition. Still, who knows what will happen twenty years from now.

  7. Elon says:

    The only artificial organ that has any viability either currently or in the near future is the artificial heart. Other organs, like livers, are too complicated and preform too many functions. While from a halachic standpoint, hearts are the largest issue, we are far from getting rid of donors.

    At least not till lab grown organ technology advances.

  8. Benny says:

    The israeli chief rabbanite accepts brain stem death as death since 1986.

    http://arevim.bua.co.il/Haskamot.html#Psak3

    http://www.ynet.co.il/articles/0,7340,L-3780464,00.html

    see http://he.wikipedia.org/wiki/%D7%9E%D7%95%D7%95%D7%AA_%D7%9E%D7%95%D7%97%D7%99 as well:
    ב1986 סיימה את עבודתה ועדה מטעם הרבנות הראשית בנושא מוות מוחי. חברי הוועדה היו הרבנים הראשיים אברהם שפירא ומרדכי אליהו, והרבנים שאול ישראלי, זלמן נחמיה גולדברג, ישראל מאיר לאו, דוד חיים שלוש והרופאים מרדכי הלפרין והרב פרופסור אברהם שטינברג. הוועדה המליצה לרבנות הראשית להכיר במוות מוחי בתנאים מסוימים, ולאחר כמה שבועות, ב-3 בנובמבר 1986 (א’ בחשוון תשמ”ז), התקבלה החלטה של מועצת הרבנות הראשית בישראל לאשר תרומות לב מאנשים שנקבע להם מוות מוחי, בבית החולים הדסה עין-כרם בירושלים בתנאי שיתמלאו ארבעה תנאים אותם הציבו הרבנים בפני משרד הבריאות. אחד מהם היה שבכל הליך קביעת מוות מוחי יקח חלק נציג של הרבנות הראשית שמתמחה בפסיקת הלכה רפואית. משרד הבריאות לא הסכים לתנאי זה ולכן הרבנות לא הכירה במוות מוחי. בשנת 2009, לאחר חקיקת חוק מוות מוחי נשימתי, פורסם שב”ישיבת הכנה מקדמית” נטתה מועצת הרבנות הראשית לחזור על החלטתה מ-1986 [15].

  9. RS says:

    When you say R. Ovadiah and R. Amar oppose organ donation, that is not true. If a rav was present to confirm that the person is dead, they do not oppose it. They think it is a great mitzvah

  10. RS says:

    The Chief Rabbinate accepts brain death. This is directly opposed by R. Waldenberg. How you could have made a mistake and put the two together, I don’t know. When you are brain dead there is cessation of breathing!

  11. Glatt some questions says:

    I have a problem with the statements that rabbis are “against organ donation.” The truth is that all rabbis, regardless of whether they accept brain death or not, support the concept of organ donation because it saves lives. as long as it doesn’t conflict with the big three. The only question is how one defines halachic death, and if one defines it as cessation of heartbeat, then donating most organs becomes problematic. But this does not mean that these rabbis are against organ donation. It means that because of their definition of halachic death, they are opposed to a person donating organs because it would be murdering another individual. If these rabbis were against organ donation, then they wouldn’t allow live organ donation either (and all Orthodox rabbis support that). Be careful with your words in describing the position of rabbis on this subject.

  12. Hirhurim says:

    James: I dont understand why RMF’s view is characterized as “Rejection of Brain Death” I think RMDT would disagree and based on the HODS website, so would R’ Dovid Feinstein

    Benny: The israeli chief rabbanite accepts brain stem death as death since 1986.

    RS: The Chief Rabbinate accepts brain death

    I believe my description in the post is correct. They reject brain stem death as a DEFINITION of death but accept it effectively because it implies independent cessation of spontaneous respiration. The latter is what they consider a definition or at least a sign of death.

    Elon: The only artificial organ that has any viability either currently or in the near future is the artificial heart. Other organs, like livers, are too complicated and preform too many functions. While from a halachic standpoint, hearts are the largest issue, we are far from getting rid of donors.

    Think big and think long-term. What seems impossible today could be a reality in 30 years.

    RS: When you say R. Ovadiah and R. Amar oppose organ donation, that is not true

    I only reported what R. Shabtai wrote in his book, based on information from R. Ovadiah’s grandson who wrote a book on brain death and directly from R. Amar.

  13. IH says:

    I only reported what R. Shabtai wrote in his book

    An indication the book may not be the impartial analysis of the issues the author claims, like the Va’ad Halacha paper before it which claimed “an unfettered search for the truth”.

  14. Hirhurim says:

    IH: An indication the book may not be the impartial analysis of the issues the author claims

    He is pretty specific about detailing his sources. I think you’d need independent information to the contrary before challenging his facts.

  15. IH says:

    Detailing sources indicates good scholarship practice, but is not an indication of impartiality (e.g. in that exchange about R. Ovadiah and R. Amar — what sources that demonstrate a contradictory view were omitted because they did not suit the author’s point).

  16. IH says:

    The first hit for Google “Rabbi Amar Organ Donation” is:
    http://www.israelnationalnews.com/News/News.aspx/141407#.T6PWdcU8thE

    “Chief Sephardi Rabbi Shlomo Amar told the family of brain-dead soccer icon Avi Cohen it can donate his organs to save lives before disconnecting life-support systems.”

  17. IH says:

    And if Arutz 7 is not sympati enough to one’s halachic perspective, here is the link to the Vos Iz Neias coverage of the same:

    http://www.vosizneias.com/72101/2010/12/28/israel-chief-rabbi-allows-organ-donations-of-brain-dead-soccer-player

  18. while trying to verify something for my next comment via google, i came across this:

    “all living donors are awarded points for their donation so if they every need a kidney later in life, they will be given priority on the deceased donor list”
    (http://www.kidneyregistry.org/living_donors.php?cookie=1)

    it was big news when israel unveiled a similar program recently. i was unaware such a program existed in america

  19. “The truth is that all rabbis, regardless of whether they accept brain death or not, support the concept of organ donation because it saves lives.”

    in theory or in practice? do “the rabbis” promote education about live organ donation? of course this has its own moral and halachic ramifications, so למעשה what does it mean to say that they support the concept of organ donation?

  20. Glatt some questions says:

    “The truth is that all rabbis, regardless of whether they accept brain death or not, support the concept of organ donation because it saves lives.”

    in theory or in practice? do “the rabbis” promote education about live organ donation? of course this has its own moral and halachic ramifications, so למעשה what does it mean to say that they support the concept of organ donation?
    ———————————-

    It means that it’s wrong to say that rabbis are against organ donation. They are not.

  21. David Shabtai says:

    It’s great to see continuing discussions about this important issue. My main purpose in writing this book was to advance the discussion and allow those unfamiliar with the issues to gain insight into the halakhic and medical technicalities of the debate.

    To address two of the factual issues raised in these comments:

    1. R. Glatt’s assertion that “all” rabbis accept organ donation after death (however defined), is somewhat inaccurate. The Binyan Tziyyon (1:270) was opposed to postmortem autopsies even when they were necessary to save lives. Some (very few) poskim adopt this view with regard to organ donation. Yes, nivul ha-met is not one of the “big three” and yet the Binyan Tziyyon tries to prove at length that it nonetheless is still forbidden. Please see that teshuvah for more details. Again, most poskim reject this approach as discussed on page 7 of my book. This is not relevant to questions of live organ donation, which requires a separate analysis.

    R. Ovadiah Yosef is therefore somewhat hesitant with permitting organ transplants, and in practice, as was attested to me by his grandson who was present when R. Ovadiah instructed several dayyanim (including R. Amar) in this matter as well as when R. Ovadiah paskined such an issue halakhah le-maaseh, recommends that organs not be donated. He already hinted to this position in Yabia Omer YD 3:23, where he addresses post mortem cornea transplants. While not explicit there (but it is his only full length treatment of the issue), he notes that even if we consider a blind person to be a holeh she-yesh bo sakkanah, that is not sufficiently compelling to permit the nivul ha-met. Indeed, in the end, he does permit the practice, but only through a combination of several kulas.

    2. Dr. Stadlan notes that brain death is not discussed in the Talmud. This is virtually universally accepted as true by both physicians and rabbis, if only since it likely could not exist outside the ICU setting, which was then unavailable. I say virtually, because R. Shaul Yisraeli assumes that Talmud Yoma 85a is specifically discussing a brain dead patient whose brain stem is no longer functioning. To my mind at least, this seems to be quite a stretch, and is likely the reason that his argument is not accepted by most other poskim.

    Contrary to what Dr. Stadlan asserts however, R. Bleich believes that the notion of vital motion is most certainly found in the Talmud (even if the English coining of the phrase is from Black’s law dictionary). He argues that vital motion is precisely what Mishnah Ohalot 1:6 is trying to describe and is the impetus for Rashi’s comment in Yoma 85a that the person must be “muttal ke-even,” as discussed on page 110 (and elsewhere, see the index). Since he believes that this is precisely what is being described by the Mishnah, Talmud, and Hatam Sofer, in his view, there is really no need to “comment upon or examine” whether he believes this to be so.

    Lastly, R. Bleich is quite clear that vital motion exists even without neurological control. This is why he describes the sheep from the decapitated sheep experiment as alive, despite the lack of neurological control, as noted on page 112 and discussed more in depth in chapter 16. R. Shachter also agrees to this notion (personal communication).

    Just as a note, I’m not aware of any poskim who define death as the lack of “neurological control.” The poskim who recognize brain death as death do so either because in brain death a person can no longer breathe on their own, or because it is considered as if the head is missing.

    I will try my best to keep up with the comments, although, I often find that I am unable to do so. Please do not take offense.

  22. Noam Stadlan says:

    Just to be clear, I only quoted your and R Gil’s ststements, that is why there are quotation marks. I think most rational people would not agree that Rabbi Bleich’s concept of vital motion(especially in all it’s complexity) is not explicit in the Mishna in Ohalot. Rabbi Bleich is reading his opinion into the mishna, just as he is reading his opinion into the other sources. That is his right. People could read a lot of different concepts into the Mishna, including brain death. But let us not pretend that the only obvious understanding of the mishna and other sources is Rabbi Bleich’s, and that his opinion is explicit there. I am not sure that Rav Bleich’s concept of vital motion actually is universally accepted. Other contemporary poskim discuss circulation, not vital motion. The reason perhaps that it has not been rejected is that it has not been closely analyzed and it is similar enough to the circulation arguments that those advocates are willing to leave it alone.

  23. Noam Stadlan says:

    ‘vital motion exists without neurological control’. So if one removed a head from a body, kept both the head and the body functional on pumps, are there two people? According to this statement the body has ‘vital function”. Does the functioning head also have vital function? It can think, mouth words etc. this has been done in monkeys so it is technologically possible. Either there are two people, or you have to claim that a person who can think and mouth words is dead. Both seem problematic

  24. Glatt some questions says:

    R. Glatt’s assertion that “all” rabbis accept organ donation after death (however defined), is somewhat inaccurate. The Binyan Tziyyon (1:270) was opposed to postmortem autopsies even when they were necessary to save lives.
    ————————
    Thank you, R. Shabtai, for pointing this out to me. I therefore amend my comment to read “…virtually all rabbis, regardless of whether they accept brain death or not, support the concept of organ donation because it saves lives.”

    I am interested in how poskim apply an objection to autopsies even when it potentially could save a life (it would never be direct) to a case of organ donation, where there is a direct connection to saving a life. That’s a big leap, in my opinion.

    While both seem problematic to me (which is probably why it’s such a minority opinion), the case of organ donation seems even more problematic, given the direct connection.

  25. Hirhurim says:

    Dr. Stadlan: So if one removed a head from a body, kept both the head and the body functional on pumps, are there two people?… Either there are two people, or you have to claim that a person who can think and mouth words is dead.

    I don’t think these are the only two options. The issue of identity does not have to come into play at all. Can’t it be one person who has been cut into two pieces?

  26. Noam Stadlan says:

    Interesting but I dont think so. One person can be in two places at once? You are claiming that each piece by itself fulfills the criteria for a human being. Therefore each is a human being. Either thy fulfill criteria for a human being and are one, or they don’t and they are not.. There is no reason to posit that they are one person. They are each a person. One and one equals two.

  27. Hirhurim says:

    One person can be in two places at once?

    On what basis do you assume that this is not the case other than your instinct?

  28. Noam Stadlan says:

    The main problem is the second part of my post which you did not address. At first thought it seems that being in two places would pose some halachic challenges. I haven’t seen anyone who says it isn’t s problem. But again this is a side issue

  29. Shalom Spira says:

    Ye’yasher kochakha, R. Student.
    At the same time, I agree with Dr. Stadlan that it is impossible to be considered a human being according to Torah law without both a head and the majority of the body with which one was born, pursuant to R. Bleich’s discussion of identity in Tradition 41:2 (Summer 2008). [I.e. R. Bleich explains that a human being remains the same human being because there is continuity from the moment of birth. And birth occurs when either the head or the majority of the body emerge from the mother's birth canal. Ergo - although not expicitly enunciated by R. Bleich - the implicit message is one needs to have a head physically attached to the body to be considered alive.] Were it not so, one would not require the shi’ur of “rosho ve-rubbo” to fulfill the mitzvah de-oraita of yeshivat sukkah. Understandably, then, the gemara in Sotah 45b establishes that a human being is instantly dead at the exact moment that the cranial unit is separated from the body. Separation of the head from the body signifies instant destruction of the human being. But very, very few human beings die today (hopefully none, in fact, if we live in a peaceful society) through actual decapitation, which explains why R. Bleich can still regard brain dead patients as alive. Since this consideration was so recently published by R. Bleich (i.e. only four years ago, and also in a context which does not explicitly announce itself to relate to brain death), it is understandable that it was neither recognized by the RCA paper nor by R. Shabtai’s book.

  30. Joseph Kaplan says:

    Some aspects of this discussion are, I must admit, over my head. But I would like to note that the level and tone of the discussion, especially in light of some of the reactions to R. Broyde’s guest post earlier this week, should serve as a model for future discussions on these types of serious issues. Whatever the merits of R. Dr. Shabtai’s analysis, it is a pleasure to have him participate and add his expertise and knowledge.

  31. shaul shapira says:

    “I would like to note that the level and tone of the discussion, especially in light of some of the reactions to R. Broyde’s guest post earlier this week, should serve as a model for future discussions on these types of serious issues”

    Of course one obvious distinction is that in the Aguna case you have two active and angry participants, where as braindead patients generally aren’t up to leaving blog comments one way or another.

  32. Hirhurim says:

    Dr. Stadlan: I’m not sure I understand why a person cannot be in two places at one time. If we bury a decapitated head in NY and the body from the neck down in NJ, the person is buried in two places. While certainly an extreme case, what about a live person precludes the same from being said about him?

    R. Spira: I can’t seem to find where in R. Bleich’s article he discusses rosho ve-rubo. Can you please provide a page number? Thank you

  33. David Shabtai says:

    Just a quick note:

    I am not intending to defend R. Bleich, but describing his perspective as “reading something into the text” is not helpful to the discussion. This is a question of opinion – what one person views as “reading something into the text,” another sees as the simple meaning of the words (pashut peshat). The same holds true for all approaches on any issue. Providing an alternate, more persuasive approach makes sense and is appropriate; merely labeling someone’s position as “reading into the text” is not helpful to advancing the discussion.

    Dr. Stadlan’s question regarding identity is interesting, but not necessarily relevant to the question of determining life vs. death.

    More importantly however, Dr. Stadlan’s argument can be levied against pretty much (as far as I can tell, but could be wrong) any biological definition of death. Let’s use the brain stem definition of death as an example:

    This argument states that when a person suffers from the irreversible cessation of spontaneous respiration with brain stem failure, he is dead. What if we removed the person’s brain stem and placed it in a lab and kept it alive. (I know this isn’t reality right now, but 200 years ago nobody would have believed you if you told them that we would one day transplant the heart of one person into another. Regardless, it is the theory that is important here.) So now we have a conscious body without a brain stem on a ventilator in one room (perhaps even capable of moving and meaningful communication [maybe not vocal])and a brain stem being “kept alive” (through whatever futuristic means will work) in another room. Do we have one person or two? Or what if the rest of the body isn’t being maintained – meaning we only keep the brain stem “alive” in a dish in a lab through whatever means – is this person alive? Or what if we dissect the brain stem into 6 pieces and “keep them each alive” in different rooms – how many people do we have? What about the rest of the body? The same is true for those who think that the brain stem is only meaningful inasmuch as in controls respiration – what if you removed the brain stem and respiratory apparatus and “kept that alive” in a separate room?

    I don’t see why this argument shouldn’t hold for any biological definition of death. Whatever part of the body / brain you think needs to be functioning to be alive – what happens when we remove that specific part or parts and “keep them alive” in a separate room?

    While intriguing and certainly requiring thoughtful analysis, I don’t believe that this question is unique to R. Bleich’s approach or necessarily relevant to the discussion.

  34. Noam Stadlan says:

    There are halachot that apply to a person depending on where he is. If one of the human beings is in California, and the other is in New York, what time does the person start Shabbat? Laws of yichud also come to mind. But again, this is a side issue

  35. Joseph Kaplan says:

    “Of course one obvious distinction is that in the Aguna case you have two active and angry participants, where as braindead patients generally aren’t up to leaving blog comments one way or another.”

    I don’t understand. We’ve had brain death discussions here with active and heated participants on both sides.

  36. shasdaf says:

    4.Partial acceptance of whole brain death – R. Shabtai does not challenge this view and only presents it briefly because it was written in response to short questions and does not contain a thorough analysis.

    R’ Gil,
    please clarify – are you saying Rav Ahron Soloveichik did not write a thorough analysis? Because he did – it is a chapter in R. Bleich & Dr. Rosner’s Jewish Bioethics, and also a brielf letter to the editor in JAMA in 1978 (July 14, 1978–Vol 240, No.2) in response to R. Dr. Tendler’s article (238:1651, 1977).

  37. Hirhurim says:

    Dr. Stadlan: There are halachot that apply to a person depending on where he is. If one of the human beings is in California, and the other is in New York, what time does the person start Shabbat? Laws of yichud also come to mind. But again, this is a side issue

    I’m not sure whether this is a logical problem or an interesting theoretical she’eilah but I suspect the latter.

    Shasdaf: I’m not sure. Perhaps R. Shabtai missed that article. He focused on the RJJ Journal article.

  38. Mair Zvi says:

    The location of the “center” that regulates body temperature is located in the area of the brain known as the hypothalamus.
    If the so-called brain dead individual’s body temperature is higher than ambient room temperature, the individual’s brain is nevertheless still functioning although at a very primitive level.
    I have yet to read any Halachic discussion of brain death that discusses body temterature as a criterion of (Halachic) death.

  39. Mair Zvi says:

    Clarification: What I Meant to write above is that if the so-called brain dead individual’s temperature remains at room temperature for a DEFINED PERIOD OF TIME, i.e. One Hour…The brain is still functioning at a primitive level.

  40. David says:

    “R. Moshe Feinstein rejects brain death”? Not according to R. Tendler.

  41. noam stadlan says:

    R/D Shabtai- my point was that there is no explicit mention of ‘vital function’ the way Rav Bleich understands it in the gemara. In this way it is no better(and perhaps worse) than the concept of brain death. However, the advocates of brain death get criticized for reading neurological function into the gemara, or at least the concept is ‘marked down’ for not having a specific mention in the Gemara(as Rav Gil did above). You probably remember a lot more sources than I do, but I venture to guess that there isn’t any mention of anything like Rav Bleich’s concept of ‘vital function’ until he himself describes it. And if there is a mention of something like it, the term ‘neurological function’ could just as easily be inserted instead of ‘vital function’ and it would turn out to be an argument for brain death.

    There is a huge difference between what is technologically possible and what isn’t. There is no guarantee that something you hypothesize will become technologically possible. However, as we both know, what I described has been done in monkeys, and can easily be done in humans. Your theory of life and death should be robust enough to supply an answer to all technologically possible situations. The fact that your theory fails(and also fails to explain conjoined twins and other situations) should be evidence that perhaps it is not the right one. You may not want your theory of life and death to also be your theory of identity. That is your right. However, you still have to supply some theory of identity, and the combination needs to make sense.

    Rav Gil- remind me to use that- any question I cant answer is just theoretical halacha :-) . The point I have made, which you haven’t addressed is that if there are two seperate biological entities, each of which fulfills the criteria to be a human being without restriction, there is no reason to not to consider them two seperate human beings.

    Mair- the hypothalamus does indeed control temperature. It does so by releasing thyroid hormones and causing shivering. It has been noted that some brain dead patients have stable body temperatures, and the assumption is made that the hypothalamus is still working. However, as far as I know, they haven’t shown that the the body is releasing thyroid hormone(and in fact in most brain dead patients the thyroid hormone levels are low) and the body hasn’t been noted to be shivering. Some think that the stable temperature is due to other mechanisms or really good cooling/heating blankets.

    To be clear, in some patients who fulfill ‘brain death criteria’ there still is hypothalamic function. In others, there is no evidence of hypothalamic function, despite testing for all known function. If you believe that hypothalamic function is a sign of life, then you will not consider someone with hypothalamic function to be dead.

    Shabbat Shalom to all

  42. Hirhurim says:

    Dr. Stadlan: You are raising interesting questions of identity. I am no expert but I can imagine an ontological definition of identity — that is the way you are created — and a teleological definition — that is the way you fulfill your purpose. The former would imply that a person split into multiple living entities is still one entity, even if he can be split into multiple places. The latter might differentiate between various body parts. I’m just making this up but I can imagine that philosophers have discussed this. I can’t imagine it’s as simple as — two pieces, two people.

  43. william gewirtz says:

    the distinction between a definition and an indication may be important. perhaps the halakhic literature is best characterized as giving us indicators used at various times given medical science, not definitions. I suspect that there is no definition, only indicators. That may be jarring to modern day conceptualists, but is imho consistent with much of the literature, prior to modern times. were that the case, given that most agree that brain stem death implies that there is no longer the ability for independent respiration, (something that is often viewed as a definition or at least an indicator) the number who might accept brain stem death as a valid indicator, might include a number of poskim listed particularly in category 5 above.

    Being at best a novice in this area, i am curious how others view the indicator/definition distinction?

  44. noam stadlan says:

    R. Gil- there are a lot of theories of personal identity(there is a very readable book by Eric Olsen titled(I think) “who we are?”)

    I suggest starting with this article: http://www.jstor.org/discover/10.2307/2265108?uid=3739656&uid=2129&uid=2&uid=70&uid=4&uid=3739256&sid=21100773444711
    Basically they state(paraphrasing): to say that an ailing patient Jones is alive, is actually making two claims: One is that the patient is still Jones, and the other is that he has not fulfilled the criteria for death.

    So if your criteria for loss of identity are the same as the criteria for death, there is no problem(the position of brain death). On the other hand, if your criteria for identity are not the same as life/death, you have a problem. (this is the position of those who view human life as biological, for example Truog and Miller. However they have no problem saying that functioning tissue is life or saying that a decapitated body is alive. Others have pointed out the problems with their position but I have not seen a response from them).

  45. Benny says:

    Gil wrote: I believe my description in the post is correct. They reject brain stem death as a DEFINITION of death but accept it effectively because it implies independent cessation of spontaneous respiration. The latter is what they consider a definition or at least a sign of death.

    I believe you are mistaken.

  46. Steve Brizel says:

    Once again, discussions on the above thread show that the brain stem death is hardly a Davar Barur R D Shabtain notes the following, which IMO , are the critical factors:

    “Dr. Stadlan notes that brain death is not discussed in the Talmud. This is virtually universally accepted as true by both physicians and rabbis, if only since it likely could not exist outside the ICU setting, which was then unavailable. I say virtually, because R. Shaul Yisraeli assumes that Talmud Yoma 85a is specifically discussing a brain dead patient whose brain stem is no longer functioning. To my mind at least, this seems to be quite a stretch, and is likely the reason that his argument is not accepted by most other poskim.”

    R D Shabtai then raised the following query, which IMO warrants more inquiry than asserting that a person can be “alive” and “dead” at the same time:

    “This argument states that when a person suffers from the irreversible cessation of spontaneous respiration with brain stem failure, he is dead. What if we removed the person’s brain stem and placed it in a lab and kept it alive. (I know this isn’t reality right now, but 200 years ago nobody would have believed you if you told them that we would one day transplant the heart of one person into another. Regardless, it is the theory that is important here.) So now we have a conscious body without a brain stem on a ventilator in one room (perhaps even capable of moving and meaningful communication [maybe not vocal])and a brain stem being “kept alive” (through whatever futuristic means will work) in another room. Do we have one person or two? Or what if the rest of the body isn’t being maintained – meaning we only keep the brain stem “alive” in a dish in a lab through whatever means – is this person alive? Or what if we dissect the brain stem into 6 pieces and “keep them each alive” in different rooms – how many people do we have? What about the rest of the body? The same is true for those who think that the brain stem is only meaningful inasmuch as in controls respiration – what if you removed the brain stem and respiratory apparatus and “kept that alive” in a separate room?

    I don’t see why this argument shouldn’t hold for any biological definition of death. Whatever part of the body / brain you think needs to be functioning to be alive – what happens when we remove that specific part or parts and “keep them alive” in a separate room”

  47. Steve Brizel says:

    Dr Stadlan wrote:

    “One person can be in two places at once? You are claiming that each piece by itself fulfills the criteria for a human being. Therefore each is a human being. Either thy fulfill criteria for a human being and are one, or they don’t and they are not.. There is no reason to posit that they are one person. They are each a person. One and one equals two”

    A simple yes or question-could a Kohen be present in the same room with such a person?

  48. Noam Stadlan says:

    Steve- R. Shabtai’s hypothetical is hypothetical. I would hope that he knows what portions of the brain are needed for various functions to be present You can make up all the imaginary situations you want. My question is technicologically possible. I think there is a huge difference and even if his question is valid, he still hasn’t answered the ones I have posed.

  49. Shalom Spira says:

    Thank you, R. Student, for the honour of the question (May 4, 4:35 p.m.) My answer is that “Ha de-Rav Bleich lav be-feirush itmar ela mi-klala itmar” (to paraphrase the gemara in Berakhot 9a). Namely, R. Bleich never explicitly enunciates my “rosho ve-rubbo” thesis in his Tradition Summer 2008 article, but I believe my thesis is the implicit message that derives from his article. In his discussion of the halakhot of abortion (Contemporary Halakhic Problems I in English, later translated into Hebrew in Be-Netivot ha-Halakhah III), R. Bleich does state clearly that birth occurs if either the head or the majority of the body of the baby emerges. Thus, I am really fusing two separate articles of R. Bleich (one defining birth, the other defining identity as being contringent upon continuity that flows from both).

    On the other hand, there are alternate ways to explain why the gemara in Sotah 45b equates decapitation with instant death. Some poskim say the equation flows from the fact that the brain no longer physiologically controls the body, as in the case of Eli ha-Kohen. Moreover, some poskim some say the equation flows from the fact that the patient is no longer breathing nor conscious – two indeces of life according to one way of interpreting Chatam Sofer (-whereas the third index of life – circulation – was only meant by Chatam Sofer to mean a circulation that benefits from the patient’s simultaneous independent respiration). [These alternate ways of explaining the decapitation=death equation have been explored by my comments on Dec. 23 and Dec. 27 at http://torahmusings.com/2010/12/death-by-neurological-criteria/ ]But if one is to posit that the brain dead patient is alive (as R. Bleich submits), it seems to me that the distinction between the brain dead patient and the decapitated patient could be attributed to the rosho ve-rubbo concept of representing the minimum shi’ur of a human being.

  50. IH says:

    On R. Shabtai’s Ha’aretz OpEd (linked in News & Links), btw, I see that the small number of comments there identified the same issue as that in the RCA’s Va’ad Halacha paper that was strongly debated in the Hirhurim discussions at the time.

  51. David Shabtai says:

    Indeed, my hypothetical case is not technologically possible today. I don’t really see why this should make a “huge difference” either way. Repeating this assertion over and over, doesn’t make it more convincing.

    The question of identity is interesting (and may one day be important), but as I described above, it applies to each and every single biological definition of death that has yet been proposed, whether in Halakhah or secular bioethics. It therefore does not constitute a challenge to any of the particular positions more than the others.

    Incidentally, I haven’t adopted or advocated for any particular approach. I am simply noting that the question Dr. Stadlan posed against R. Bleich’s approach applies equally to the approach he himself advocates.

  52. Noam Stadlan says:

    R Shabtai- Whether or not your hypotheticals are valid points or not has no bearing on the question I asked. You can still answer it if you choose, even if you believe it poses problems for my position as well.
    As pointed out by Wikler and Green, the problem of identity applies primarily to those theories where identity and life are defined differently- so it is much more of a problem for you than for me

  53. Shalom Spira says:

    Ye’yasher kochakha, R’ Robert Berman. This is a most valuable resource.

    On p. 3, R. Steinberg reports (point 2) that R. Ovadiah Yosef asked on R. Shlomo Zalman Auerbach “Why do we need a proof that all the brain cells have died? It is sufficient that the he [the patient] does not breathe and that his brain is dead [i.e. the patient is irreversibly unconscious].”

    It seems to me that the answer to R. Yosef’s question is that continued circulation of blood is regarded by R. Auerbach as a doubtful manifestation of the last breath taken by the patient. In other words, R. Auerbach acknowledges that one must breathe to be legally considered alive, but R. Auerbach envisages the brain dead patient as a case of an doubtful extended “teki’ah gedolah” of the patient’s last breath taken. On the other hand, if every brain cell were to be confirmed as dead, then the patient will match the description of Eli ha-Kohen as per the gemara in Chullin 21a, in the opinion of R. Auerbach.

 
 

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