Guest post by R. Dr. David Shabtai / The Jewish Week recently reported on the RCA’s recent paper on brain death. Some have suggested that this critique was insufficiently balanced. To help and provide some context, I offer the following comments: * The article twice notes that advances in science and medicine necessitate a reevaluation, but offers no elaboration other than a critique that the RCA document skewed and omitted “pertinent medical information.”

Brain Death in the News

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Guest post by R. Dr. David Shabtai

Rabbi David Shabtai, MD is a member of the Wexner Kollel Elyon at RIETS and is currently finishing up a book about brain death in Halakhah.

The Jewish Week recently reported on the RCA’s recent paper on brain death. Some have suggested that this critique was insufficiently balanced. To help and provide some context, I offer the following comments:

  • The article twice notes that advances in science and medicine necessitate a reevaluation, but offers no elaboration other than a critique that the RCA document skewed and omitted “pertinent medical information.” As the RCA reports, the medical information was largely taken from the 2008 President’s Council on Bioethics’ Controversies in the Determination of Death, who, based on their own evaluation of the science, argue that “recent clinical observations about patients diagnosed as “brain dead,” have reignited the debate about the standard’s validity.” And if we are trying to keep in step with modern medicine, it is important to realize that mainstream bioethicists (see a, b, c) have rejected R. Tendler’s rationale for defining death as evidence has mounted arguing that brain dead patients do not fulfill these criteria. In honestly admitting that previous definitions and arguments recognizing brain death as death are either untenable or simply unacceptable, the President’s Council completely redefined what it means to be dead. Many (see d, e, f) even argue that the brain death standard is in fact indefensible, recognizing that brain dead patients are indeed alive, and resort to justify the organ donation enterprise by nonetheless rationalizing ending their lives for the purpose of organ donation.
  • The Jewish Week reports that “the majority of halachic authorities … in Israel” accept brain death as the death of the individual. While this might be the media-influenced impression, it is simply not true. What the RCA document tries to make clear and the Jewish Week obfuscates is that the Orthodox Jewish consensus opinion does not accept brain death as the death of the individual (R. Y.Sh. Elyashiv, R. Sh.Z. Auerbach, R. Sh. Wozner, R. M. Klein, R. E.Y. Waldenburg among many others – see my forthcoming book for more analysis). While a minority opinion certainly exists, the clearly overwhelming majority of serious halakhic decisors (poskim) consider brain dead patients to be alive and the removal of their organs as murder. Those who disagree – and they are certainly entitled to do so – must nonetheless deal with this reality in arriving at and presenting their own opinions. This is a matter of the highest halakhic importance and to my mind, only those most eminently qualified by virtue of their knowledge, experience, and yir’at shamayim are authorized to have their opinions bear weight on this matter.
  • While not explicit, a possible impression one might get is that those rabbis who do not recognize brain death as death somehow take lifesaving more casually than those who endorse brain death. This could not be farther from the truth. Saving a life, even if only for mere moments, is of paramount importance in Judaism, overriding even the strictest of prohibitions – but not all. A person may not be killed even if by doing so somebody else’s life could be saved; this is true regardless of the quality of life of the victim or of how long he has left to live (Rambam, Hil. Rotzeah 2:7). The ‘problem’ in organ donation is that there are potentially two lives that need saving. If we are to reject brain death as death, then the donor’s life may not be sacrificed and his life must be guarded as sacrosanct as well. The relevant question is whether or not a brain dead patient is alive, not how keen we should be about saving the potential recipient.
  • Methodologically, there is also a serious misinterpretation one could come to from reading the Jewish Week article. While public policy such as the impression created by a halakhic ruling in the eyes of broader society is of vital importance – it cannot and certainly should not dictate halakhic conclusions ahead of time. This is especially true when it comes to the question of potential murder, the violation of which Halakhah describes as yehareg ve-al ya’avor – better let yourself be killed than violate. While there are few issues in modern times that broach these issues, if we conclude that brain dead patients are alive, then the removal of their organs is murder and cannot be condoned regardless of the public policy consequences. A matter of potential yehareg ve-al ya’avor cannot be simply dismissed in favor of public policy considerations.
  • There are also a number of factual misimpressions that the article seems to promulgate. As the RCA document notes, there is significant “confusion” regarding the opinions of R. Y.D. Soloveitchik and R. Moshe Feinstein. Noting R. Binyamin Walfish’s report of being told by R. Soloveitchik that R. Tendler’s opinion should be followed, the Jewish Week fails to note the indisputable fact that throughout his life, R. Soloveitchik completely rejected this approach (as noted by R. Tendler himself [RCA document, page 7]). His rejection was not because of some hesitation regarding the accuracy of a medical test, but rather for more fundamental reasons. While nobody disputes that R. Soloveitchik uttered those words to R. Walfish, R. Walfish himself notes that this was at a time when R. Soloveitchik was “not actively involved in public affairs.” The RCA document does not “refute” R. Walfish’s account, but simply notes that it is a) indisputably contradicted by many of R. Soloveitchik’s statements throughout his life and b) was stated at a time when he was “not actively involved in public affairs,” as per R. Walfish himself. They thus challenge whether or not R. Walfish’s account accurately reflects R. Soloveitchik’s true opinion.
  • R. Moshe Feinstein’s position is similarly clouded and cannot be properly explored in this short context. While the Jewish Week correctly notes R. Tendler’s vigorous insistence that R. Feinstein whole-heartedly accepted the notion of brain death as death, it neglects to mention that many other quite prominent rabbis (including R. Sh.Z. Auerbach and R. Y.Sh. Elyashiv) interpret R. Feinstein’s position differently. There is also no mention of the seemingly conflicting evidence in R. Feinstein’s own writings and conversations on the matter.

About Gil Student

Rabbi Gil Student is the Publisher and Editor-in-Chief of TorahMusings.com, a leading website on Orthodox Jewish scholarly subjects, and the Book Editor of the Orthodox Union’s Jewish Action magazine. He writes a popular column on issues of Jewish law and thought featured in newspapers and magazines, including The Jewish Link, The Jewish Echo and The Vues. In the past, he has served as the President of the small Jewish publisher Yashar Books and as the Managing Editor of OU Press. Rabbi Student serves on the Executive Committee of the Rabbinical Council of America. He also serves on the Editorial Boards of Jewish Action magazine, the Journal of Halacha and Contemporary Society and the Achieve Journal of Behavioral Health, Religion & Community, as well as the Board of OU Press. He has published five English books, the most recent titled Search Engine volume 2: Finding Meaning in Jewish Texts -- Jewish Leadership, and served as the American editor for Morasha Kehillat Yaakov: Essays in Honour of Chief Rabbi Lord Jonathan Sacks.

113 comments

  1. “While public policy such as the impression created by a halakhic ruling in the eyes of broader society is of vital importance – it cannot and certainly should not dictate halakhic conclusions ahead of time.” So sorry but I do not understand what this means. Also, the author fails to differentiate among organs that may be removed from a brain dead person. Finally, use of the term “murder” shows the bias of the author in favor of one opinion which he favors “ahead of time” thus calling into question the neutrality of this post.

  2. anony: “While public policy such as the impression created by a halakhic ruling in the eyes of broader society is of vital importance – it cannot and certainly should not dictate halakhic conclusions ahead of time.” So sorry but I do not understand what this means.

    It means: first decide whether it is assur or mutar and then worry about public policy. Sometimes it will change your answer and sometimes it won’t. When it comes to something as serious as potential murder, it’s hard to see how it will change.

    Also, the author fails to differentiate among organs that may be removed from a brain dead person.

    You are correct but that isn’t the subject of discussion.

    Finally, use of the term “murder” shows the bias of the author in favor of one opinion which he favors “ahead of time” thus calling into question the neutrality of this post.

    He only used the term “murder” within the qualification that a patient is alive. Everyone agrees that if a patient is alive, harvesting organs is murder. The disagreement is about whether the patient is alive.

  3. Although I am not qualified to comment on the halachic matters of this post, I am qualified to comment on current medical ethics, and I think that the first paragraph gives a seriously misleading account of the current state of opinion in medical ethics on brain death.
    1) Pres. Bush’s council on bioethics in no way represents a consensus of opinion of the profession (of which I am a member). It was a highly Conservative body, selected by Pres. Bush to reflect his views. This is simply a methodological point. It would still be possible that they represent the consensus on this issue. But they do not. There has been no significant move away from recognizing brain death among bioethicists, physicians or legislatures. (Brain death is accepted in all fifty states and under federal law).
    2) 3 of the 6 citations (really 2 of the 5, since b and c are the same paper) are from Prof. Truog. While he is a respected bioethicist, he has held this particular view, idiosyncratically, for over a decade. It is not a response to new data, nor is it the mainstream.
    3) Most importantly (and there is no way to further elucidate this in a blog comment), cardiac death is just as problematic a definition of death as brain death is (and brain death _is_ problematic). Ultimately, neither definition is really coherent, and will allow you to take organs from (or withdraw care from) people you would otherwise want to say are alive.
    The upshot of all this is that while there may be halachic reasons to reject brain death, contemporary secular ethics cannot be cited to support it, nor is it fair to say that the philosophical problems raised with brain death would lead one to accept cardiac death. They rather lead one to throwing up one’s hands.
    Please note that the above comes from one who has serious reservations about the concept of brain death. However, my reservations notwithstanding, I do not feel that R. Dr. Shabtai’s precis of the state of secular medical ethics is accurate.

  4. Also, though I am not myself qualified to speak to the halachic issues, I would note that R. Waldenberg’s medical talmid muvhak, R. Dr. A. Steinberg, does advocate the acceptability of a brain death standard AIUI, so I am surprised to see his rebbi’s name on a list of opponents to it.

  5. Finally, if harvesting organs is murder, is it really muttar to participate in the process by receiving an organ?

  6. In 2008 I was present at a European neurological conference on criteria for death. I took away two points:

    (1) The entire world is moving towards brain death as the only criteria for death. IIRC Denmark was at that time the last holdout in Europe. I see zero chance of returning to a definition of death that is consistent with the opinions of the poskim who oppose brain death as the halachic criteria.

    (2) The exact definition of brain death is not clear; a panel of European neurologists was working on the problem.

    If brain death is the legal criteria but not the halachic criteria, the practical problems become enormous. Two come to mind immediately:

    (1) If a doctor declares someone to be brain dead but the family does not accept the removal of the equipment used to keep the patient breathing, who will pay the multiple thousands of dollar daily charges to keep the patient alive? Insurance will not cover this.

    (2) Can a Jewish doctor practice medicine in hospital settings where there will be patients who meet the brain death criteria but not the halachic criteria?

  7. Jeremy, in this 1995 letter to Tradition, Dr. Robert Shulman writes that both the Tzitz Eliezer and R. Shlomo Zalman Auerbach confirmed to him in writing — at that late date — that they opposed the brain death criteria: http://www.traditiononline.org/news/article.cfm?id=104651

    R. Shlomo Zalman paskened elsewhere that you can accept an organ even if you won’t donate. I don’t see anyone telling followers of Christian Science that they are not allowed to accept blood transfusions (other than their co-religionists). Sometimes the government will even force them to accept it.

  8. R Shabtai and the RCA should be applauded for reminding us that the debate over the Halachic definition over brain death is an old machlokes that is indeed far from resolved. Here is a question that I pose to the advocates of brain death-barring any pressing scientific need , would you prefer to be buried R”L with no autopsy or harvesting of selected body organs or would you blindly consent to an autopsy or harvesting? Except for an article written by R Y Breitowitz in JA a few years ago, I have seen precious little discusssion on the sacred nature of the Guf and the Neshama of a Mes, who is compared to a Sefer Torah. Such an inquiry should at least involve a halachic inquiry as to whether the criteria set forth by the Nodah BiYehuda are warranted or not.

  9. Jeremy,
    >>in this 1995 letter to Tradition, Dr. Robert Shulman writes that both the Tzitz Eliezer and R. Shlomo Zalman Auerbach confirmed to him in writing — at that late date — that they opposed the brain death criteria: http://www.traditiononline.org/news/article.cfm?id=104651

    It would appear that R. Steinberg understood the Tzitz Eliezer differently. Certainly I find it difficult to believe he would take the position he does if he understood things as Dr. shulman does. but perhaps I can find out more directly from him.

    >>R. Shlomo Zalman paskened elsewhere that you can accept an organ even if you won’t donate. I don’t see anyone telling followers of Christian Science that they are not allowed to accept blood transfusions (other than their co-religionists). Sometimes the government will even force them to accept it.

    Several points. First, do you not see a problem, ethical if not halachic, in taking direct benefit from a murder? If removing an organ is truly retzicah, how can you allow it to be done for your benefit, even for pikuach nefesh (which, in most cases, is not imminent.) Second, regarding blood transfusions a) you are refering to J’s Witnesses, not Christian Scientists and b) the gov’t would never force a competent adult to have a blood transfusion, only a child (or adult without capacity).

  10. That is, death is not imminent in most cases.

  11. Steve,
    Whatever halachic issues there are in organ donation, kavod ha-mes and related issues (being buried intact) are not among them. My previous demurral notwithstanding, I am comfortable making this assertion and challenge you to bring a source indicating that these are true halachic considerations. Otherwise, bringing them up merely fuels the common misperceptions that make organ donations, even those that are muttar l’chulei alma, much more difficult to get from frum jews. In the US its a minor issue of mishum eivah (and the eivah is there). In Israel, though, it is a real problem.

  12. Jeremy Simon: I don’t know what R. Steinberg says about the Tzitz Eliezer. Are you sure he follows his ruling?

    I believe the theory is that in a country where Orthodox Jews are a tiny minority, some organ would likely be harvested anyway for someone else so you are not necessarily causing the donor’s death.

    Thank you for the corrections re J Witnesses. I think the point still stands. I’m not aware of any anti-J Witness movement due to their refusal to donate blood.

  13. Jeremy Simon-have you read R Breitowiz’s article” Why aren’t Kavod HaMes and its attendant issues considerations to be dealt with in this discussion?

  14. Gil,
    The Witness are irrelevant to this because they also don’t accept transfusions.
    As for the logic of permitting the transplant, at the time it is taken out, it is generally being taken out for a specific person. it may be the case that it probably would be taken out anyway (though if there is no other match, it would not be), but it is in fact being taken out for a particular patient.
    As for R. Dr. Steinberg, as I said, I’ll have to check, but in general my understanding is that he follows the Tzitz Eliezer.

  15. Jehovah’s Witnesses don’t donate blood and they don’t take blood.

    How can we have a situation where Jews will take organs but not give? Do you think that is fair? If Jews don’t want to give organs fine, but they can’t then expect that they will be able to receive organs if others who do agree to give are also in need of them.

    R. Ovadiah Yosef accepts brain death, as do R. Amar and the Chief Rabbinate. As did R. Mordechai Eliyahu, R. Shaul Yisraeli and R. Avraham Shapiro.

    I therefore reject Dr. Shabtai’s view that the “overwhelming majority” of poskim reject brain death.

  16. Would opponents of brain death protest if the government said that only people who agree to be donors are able to also be recipients?

    Doesn’t this seem the fairest approach?

  17. Also, since there is a machlokes haposkim, is there anything wrong with adopting the position that will clearly be most beneficial to kelal yisrael and the world, and which will save human lives? Isn’t R. Ovadiah Yosef and the rest enough to rely on? People die every day because they don’t get organs. We are very concerned with the safek of the brain dead patient, but what about the vadai of the person who will die?

  18. Interesting is how when the government wanted to wait 3 days to be sure someone was dead, we took the opposite approach.
    KT

  19. Steve: Not sure of the relevance of autopsy to the discussion. It would seem axiomatic that pikuach nefesh would override kavod hamet in the case of organs removed for transplantation.

  20. A rabbi who is unwilling to save the life of a thinking, talking, feeling, loving human being for the sake of what is for all intents and purposes merely a sack of organs, even when there is ample halakhic justification for doing so, is by definition not a yerei shamayim.

  21. I thank R. Shabtai for the illuminating essay, as well as R. Student for his kindness in bringing the RCA publication to my attention (as well as all the distinguished interlocutors in this forum for their insights). I am pleasantly surprised that (bichasdei HKB”H) my manuscript is cited by the RCA in footnote no. 135. That manuscript, as elaborated (in revised form) in a series of messages I recently left on R. J. David Bleich’s telephone machine, finds as fellows (although, of course, others are free to disagree):

    (1) There are four possible and equally plausible halakhic ways to view brain death in a patient whose circulation continues (either by natural heartbeat or artificially by extracorporeal membrane oxygernation):

    (i) A person is dead if his brain-stem is permanently dysfunctional such that he is irreversibly breathless and unconscious, even if his hypothalamus continues to function. (R. Tendler)

    (ii) The case described above (i) is alive. But a person is dead if every single cell in his brain is permanently dysfunctional (in terms of causing any corporeal motion), such that he is irreversibly breathless and unconscious, and *also* his hypothalamus/pituitary gland has ceased functioning irreversibly. (R. Auerbach)

    (iii) The case described above (ii) is alive. But a person is dead if his brain has rotted such that it would crumble if touched by a fingernail, or if his cranial unit is physically removed from the body, even if his blood continues to circulate thanks to extracorporeal membrane oxygenation. (R. Bleich possibility 1)

    (iv) Even the case described above (iii) is dead. Only the irreversible termination of circulation (such that even artificial means could not restore it) constitutes death. (R. Bleich possibility 2)

    (2) Because all four possibilities (i), (ii), (iii) and (iv) appear equally plausible from the sources in Shas, the rule that doubts regarding piku’ach nefesh be adjudicated to the side of life dictates that option (iv) be selected out of doubt. In other words, the Halakhah in theory may very well follow R. Tendler shlit”a (who is a tzaddik gammur), but lima’aseh we have no way of knowing for sure and so we must assume like position (iv) out of doubt. Therefore, a brain dead patient should be assumed to be alive, and – further – heroic efforts should be made to medically maintain the brain dead patient alive.

    (3) R. Tendler is entirely correct to rule that if a brain dead patient is assumed to be safek alive, it is prohibited to receive organs from a brain dead patient. To tell a hospital “please give me an organ” would be an act of safek geram retzichah. A Jew must (lo aleinu) forfeit his life in sanctification of the Name of Heaven rather than commit safek geram retzichah. Although R. Shlomo Zalman Auerbach and yibadel lichaim R. Joseph Shalom Eliashiv have advanced creative reasoning to allow a Jew to receive organs (R. Auerbach – in chutz la’aretz; R. Eliashiv – even in Eretz Yisra’el), their claims are insufficiently compelling. [I am fully aware of the awesome implications of this statement. It means I as a Jew must be voluntarily prepared to die tomorrow (lo aleinu) if I should need a heart/liver/lung/pancreas transplant. That’s exactly what Kiddush Hashem requires.] Even R. Moshe Feinstein’s endorsement of a patient receiving a lung transplant is insufficient for action, based on another responsum of R. Feinstein (Iggerot Mosheh, Yoreh De’ah III, no. 88) which requires posthumously overturning the halakhic decisions of a Torah luminary when evidence has been posthumously discovered to challenge the verdict.

    (4) In none of this is there an indibtment of those who have heretofore treated a brain dead patient as dead. As the gemara relates in Shabbat 130a, those who followed Rabbi Eliezer regarding preparatory activities for a circumcision on the Sabbath were greatly rewarded, even though the Halakhah was ultimately discovered to be like Rabbi Akiva. Those who have heretofore treated brain dead patients as dead have been following their halakhic understanding, and are tzaddikim gemurim. But, from here on into the future, given the finding that options (i), (ii), (iii) and (iv) are equally plausible, one must treat brain dead patients as potentially alive.

    I hope to hear soon from R. Bleich if he agrees with me.

  22. Jeremy: I’m sure that R. SZ Auerbach was better informed on the metzius than I am. My understanding is that people often donate more than one organ.

    MS: Jehovah’s Witnesses don’t donate blood and they don’t take blood.

    In theory. In practice, people aren’t always obedient to religion when their life is on the line. If a J Witness facing death decides he wants a blood transfusion, do you believe he should be turned down?

    Would opponents of brain death protest if the government said that only people who agree to be donors are able to also be recipients?

    Do you mean a rule discriminating against people religiously or a broad rule that anyone lying in a hospital bed who has not signed a donor card cannot receive a transplant?

    Also, since there is a machlokes haposkim, is there anything wrong with adopting the position that will clearly be most beneficial to kelal yisrael and the world, and which will save human lives?

    That’s not how halakhah works. If it was, we would have to be strict because of safek retzichah.

  23. Nathan Bloom: A rabbi who is unwilling to save the life of a thinking, talking, feeling, loving human being for the sake of what is for all intents and purposes merely a sack of organs, even when there is ample halakhic justification for doing so, is by definition not a yerei shamayim.

    This comment boils down to a call for euthanasia.

  24. I commented on R’ Shabtai’s shiur over at audioroundup
    “Bottom line for me – it’s clear that chazal did not use terminology that has a one-to-one correspondence with what we can technically see/describe today (was that parve enough?) and thus defining death (which is a big deal) is a real responsibility requiring broad shoulders.
    But then we need to be able to live with the consequences as well (both ways).”
    I would just add that the technology curve is making this an even more important issue and most everything will be “safek” due to my first comment (e.g. parent in cloning, mother in surrogates). Hopefully mashiach will come, sanhedrin will be restablished and the halacha will regain it’s original nature. as it stands now IMHO it will converge to “it’s a safek” on many, many more issues. And then R’SS will be right about the result for Jews taking transplants etc.

    KT

  25. Glatt some questions

    http://hods.org/english/videos/video_RDFeinstein.asp

    R. Dovid Feinstein on his father’s position vis-a-vis halachic death. An important video testimony that clears up much of the confusion from those who prefer to believe otherwise about R. Moshe’s position on the issue.

  26. Rabbi Breitowitz’s article is great example of an objective article that honestly reviews both sides of the debate without omitting information. It may be found on the Articles page of the HODS website.

    Rabbi Dav Shabtai writes “…it neglects to mention that many other quite prominent rabbis… interpret R. Feinstein’s position differently.”

    While I can appreciate there is confusion about Rav Moshe’s writings, I would have hoped that Rabbi David Shabtai would have noted that all people who ever spoke with Rav Moshe Feinstein (video interviews found on the VIDEO page of the HODS site) about this issue such as Dr. Frank Veith, Dr. Ira Greifer, Rabbi Shabtai Rappaport, Rabbi Mordechai Tendler, and Rabbi Moshe Tendler all testify that they spoke directly with Rav Moshe Feinstein and he told them brain death is death and he advocated organ donation halacha le’ma’aseh.

    In addition, Rabbi Dovid Feinstein (on the HODS site http://www.hods.org) says that his father told him orally (i.e. this is not Rov Dovid’s understand of Rov Moshe’s position based on piskei teshuva but rather from conversations with him)that a beating heart is not a sign of life and where one looks dead, and can’t breathe on his own and a ventilator is keeping the heart beating – this person should be an organ donor.

    Reporting these testimonies would have been appropriate and pertinent for Rabbi Shabtai to mention and not to simply dismiss Rav Moshe’s position because there are different ways to understand his piskei teshuvah.

  27. >>Jeremy: I’m sure that R. SZ Auerbach was better informed on the metzius than I am. My understanding is that people often donate more than one organ.

    This is usually true, but it may not be. it depends how many matches there are for the donor.

    >>: Jehovah’s Witnesses don’t donate blood and they don’t take blood.

    In theory. In practice, people aren’t always obedient to religion when their life is on the line. If a J Witness facing death decides he wants a blood transfusion, do you believe he should be turned down?

    First,the issue isn’t individuals, it’s communal policy. Everyone understands weak individuals. What they don’t understand is a community that says take but don’t give. Second of all, its not that Witnesses are necessarily weak when it comes to death — indeed my experience is that they are almost always true to this belief. It is also that there is fact an acknowledgement within the movement that not everyone considers themselves bound by this prohibition. those who are not bound by the refusal to accept donations would presumably also donate.
    Finally, frum Jews are identifiable without saying anything. Witnesses are not. If a person accepts a blood donation without saying anything, I have no way of knowing if they are a witness. Not so with a frum organ patient.

  28. Joseph Kaplan

    While I can disagree with those who do not believe brain death is death, I can respect them if they also say that Jews who are shomer mitzvot may not accept an organ from a brain dead donor. I find it difficult, though, to respect those who say halacha forbids them to donate in such circumstances because it is murder but they may participate in murder of they are on the receiving end. Indeed, I think Gild’s example of Jehovah witnesses (he accidentally said Christian Scientists but probably meant JW) was, inadvertent as it was, support for this position. The JW are consistent; they believe they are forbidden to give or get transfusions. They don’t accept the benefits of what they consider to be an immoral act. I have read a number of explanations of why it’s okay to benefit but not give. I found them all to be sad examples of how the concept of being an Ohr LaGoyim disappears when self interest intrudes. If, Gil, it’s murder or euthanasia then how, in the name of morality, can you believe that an Orthodox Jew can participate in those crimes?

  29. Joseph Kaplan

    R. Shabtai says the following about R. Walfish’s report on his conversation with the Rav: “While nobody disputes that R. Soloveitchik uttered those words to R. Walfish, …” I just reread the section on the Rav in the RCA paper. Nowhere does the paper say what R. Shabtai says and the implication is exactly the opposite. If I am wrong, please quote from the paper where R. Shabtai’s comment is said or implied. And, as I have pointed out before, in their 4 year examination and research on this issue, the members of the committee could not find the time to speak to R. Walfish directly about this (as reported by R. Walfish in the JW article). So much for objective, balanced and fair research — ignoring THE primary source and relying ONLY on secondary sources. Maybe the conclusion that the Rav did not say or mean this is accurate, but I simply do not understand how a fair evaluation or objective conclusion of that can be made without speaking to R. Walfish directly. To me, this speaks volumes.

  30. Happiness on Saturn

    Hey Jeremy Simon, take a look at Teshuvot Tzitz Eliezer 9:46, shkoyach

  31. Rabbi J. David Bleich

    I thank Shalom Spira for leaving a series of messages on my telephone machine.

  32. Glatt some questions

    http://www.hods.org/english/videos/video_RWalfish.asp

    Important video testimony from Rabbi Walfish on this issue

  33. “In theory. In practice, people aren’t always obedient to religion when their life is on the line. If a J Witness facing death decides he wants a blood transfusion, do you believe he should be turned down?”

    R. Gil – I do think though there is a distinction between what one does on their death bed in an effort to save their own life versus what a religion officially sanctions and permits. I fail to see how ethically one can be comfortable ruling it murder or safek murder and still officially allow it on the other end.

    Shavua Tov!

  34. Thanks RD Shabtai for an interesting and illuminating post. (And thanks to Dr. Simon for the further clarifications, as well as to Gil for hosting).

    Gil: “If a J Witness facing death decides he wants a blood transfusion, do you believe he should be turned down?”

    The issue at stake is not the practical question of whether or not a freeloader should nonetheless receive care in an emergency. As a matter of secular public policy there cannot and should not be a rule in place that would prevent a JW from getting a transfusion in this case. There’s a life on the line, and poetic justice has to take a back seat.

    But first of all, from a moral perspective, I think many if not most people would look with great scorn upon a JW in this circumstance, and would rightly see him as a freeloader.

    More to the point, however, this hypothetical JW is just one person who, out of desperation, defies his communal policy and accepts a blood transfusion. Hypocritical to be sure, but just one person. I think the situation is completely different if you have a entire Jewish community whose actual policy is to take from others (whom we consider alive) but not give to anyone else (for the same reason). Sure, this will work from a practical perspective. That’s the whole point of freeloading. It’s free.

    But the problem with freeloading is not necessarily a practical one (at least with a community of our small size), it’s an ethical one. For our official communal policy to be “free rides only” is a massive chilul Hashem. If you doubt me, remember who you chose for your comparative example. To put it very mildly, the JWs don’t exactly have an exemplary shem tov in American life, and I don’t think that’s the standard we should set for our community.

  35. The Rabbi Walfish interview doesn’t work

  36. If the Orthodox community as a whole decides to reject brain death, then as a matter of basic ethics we will need to on principle announce that we will not take organs, even if we are dying. To do anything else will be to create the biggest chilul hashem imaginable. It will also create enormous anti-Semitism, and this anti-Semitism will be justified. Why shouldn’t people resent a group that only wants to take but not give? Can you imagine how this will play in America and the rest of the world, that Orthodox Jews refuse to allow their organs to be used but have no problem taking those of others, even if they think the person is being murdered for the organs?

  37. But I for one don’t see the problem with brain death. If we have great gedolim who permit it, then there shouldn’t be a problem relying on them.

  38. I should clarify that after having read the RCA document when it came out, and followed up on some of the major mekoros (and also as someone who is absolutely not an expert – either medically or halachically), I was convinced by the halachic analysis on the brain death rejection side. Now, obviously my support for this position means precisely nothing, so I only say this to emphasize the fact that, as someone who accepts that brain death might not be acceptable halachically, I think it’s crucial to conclude therefore that one may not accept organs taken from brain dead donors (lo ‘aleinu). In other words, I’m not trying to use this argument to bludgeon those on the no-brain-death side into changing their minds.

  39. Charlie Hall Asked:

    (1) If a doctor declares someone to be brain dead but the family does not accept the removal of the equipment used to keep the patient breathing, who will pay the multiple thousands of dollar daily charges to keep the patient alive? Insurance will not cover this.

    (2) Can a Jewish doctor practice medicine in hospital settings where there will be patients who meet the brain death criteria but not the halachic criteria?

    As to (1): first, even if you do not accept brain death halakhicly, it is an entirely separate question as to whether you could nonetheless withdraw life support and allow the patient to die. And many more poskim would allow withdrawal of life support in this type of situation.

    But there is a more pervasive question about scarce resources and medical futility. Many patients are not brain dead, but clearly well along in the process of dying, and it is not infrequent to have conflicts between staff and families over withdrawal of care and DNR orders.

    As to (2): there are various state and federal laws (many of which are rather vague) that allow medical staff to conscientiously object and refuse to participate in procedures which they have moral/religious objections to. That said, a young resident who is told to shut off a vent during a night shift will probably not be making friends if she pages the attending to do it instead.

  40. Happiness on Saturn,
    The issue for me is not what the tzitz eliezer (to which I don’t have access at this time says) in a published t’shuva, but rather, even assuming that a t’shuva there (published when?) is against brain death, the position of R. Dr. Steinberg indicates to me that perhaps he ultimately held a different view. However, as I said, I am trying to confirm my understanding more directly.

  41. “would you prefer to be buried R”L with no autopsy or harvesting of selected body organs or would you blindly consent to an autopsy or harvesting”

    I can’t believe this is even a shilah! I absolutely would want my organs to be used to save others’ lives!!! Why would pikuach nefesh trump not trump all other considerations here?

  42. Ben G: I fail to see how ethically one can be comfortable ruling it murder or safek murder and still officially allow it on the other end.

    If someone is lying on his death bed and an organ donation is available, I’m not sure what prohibition he would be violating to accept it. I can’t see how lifnei iveir would apply at such a distance. Add to that, that there are poskim who permit organ donation.

    Unless we are setting communal policy and not dealing with a specific case. But that’s not where we’re at right now.

  43. “I find it difficult, though, to respect those who say halacha forbids them to donate in such circumstances because it is murder but they may participate in murder of they are on the receiving end.”

    I agree. Murder is murder.

  44. “Unless we are setting communal policy and not dealing with a specific case. But that’s not where we’re at right now.”

    ISTM that’s *exactly* where we’re at now. The RCA paper is very much geared to setting policy; i.e., while ostensibly “objective” and not taking a position, it’s pretty clear where it is leaning. They’re talking about having a policy (i.e., halacha, supposedly) against accepting brain death as death.

  45. The RCA paper is very specifically not setting policy. It is providing information to rabbis so they can make their own decisions. It also, to my recollection, does not address receiving organ donations.

  46. GIL:

    “If someone is lying on his death bed and an organ donation is available, I’m not sure what prohibition he would be violating to accept it. I can’t see how lifnei iveir would apply at such a distance. Add to that, that there are poskim who permit organ donation.”

    a) i’m confused. either it is ok because there are poskim who permit organ donation or it isn’t ok because other poskim don’t permit it. but why in one case we should say it is forbidden because poskim forbid and in another case say it is permitted because poskim permit it.

    b) is one permitted to get any type of hana’ah from a stolen item?i’m not drawing any type of halakhic parallel between murder and gezel, but just asking at one point is one permitted to benefit from a forbidden act.

    c) as to the implied argument here that is assur to harvest an organ but if one becomes available then you can use, is it similarly permissible to go to china for an organ obtained under dubious circumstances? those organs are put up for sale whether or not a few frum jews present as customers, so what’s really wrong with us taking the heart of some executed petty criminal?

  47. Robby Berman-

    For the record, Mordechai Tendler’s rabbinic credentials were effectively revoked by a psak halacha signed by literally dozens of his former colleagues across the spectrum of Orthodoxy. I have a copy of that psak halacha (and I believe that I provided a copy to R’ Gil in 2007 or 2008).

    Others have pointed out that many of Mordechai Tendler’s statements in the name of “private conversations with R’ Moshe” explicitly contradict what R’ Moshe wrote publicly.

  48. “The RCA paper is very specifically not setting policy.”

    I know what they were saying. And I have an opinion about what they were doing.

  49. Does anyone know if R. Tendler insists Jews refuse organs from donors who had not reached the stage of brain death required by halakhah as he understands it, or that Jews investigate the origin of the donated organs?

  50. Michael Feldstein

    It also, to my recollection, does not address receiving organ donations.
    —————
    On page 43 of the document, the paper states that R. Bleich, R. Rosensweig, R. Schachter, R. Schwartz, R. Willig, and R. Liechtenstein were all asked the following question: Assuming that brain death is not considered death, what implications might this have with respect to receiving transplants from such individuals?

    Unfortunately, the paper (on page 47) provided a very terse one-line response to this critical and serious question: “All agreed that if an organ was removed b’issur, it still may be used.”

    I think the authors of this RCA document had a responsibility to include the reasons why these talmedei chachamim feel that it is halachically permissible to receive organs from a brain dead person, while at the same time claiming that is is not permissible for a brain dead person to donate organs.

    Not only is it ethically repugnant but it is halachically problematic, at least to my eyes.

  51. >> Does anyone know if R. Tendler insists Jews refuse organs from donors who had not reached the stage of brain death required by halakhah as he understands it, or that Jews investigate the origin of the donated organs?

    Do you have something in particular in mind? Under what circumstances do you think that a patient is declared brain-dead but is not dead per R. Tendler?

  52. I would like to mention one fact in this discussion on receiving organs. An intended recipient is identified when an organ is removed. In other words, when an organ is harvested from a brain dead donor, it is known exactly who it is going to, and that person has already been notified and has been told to go to the hospital and be prepared to accept the transplant. So this is not a case of an organ being taken off the shelf for insertion. They have to be specifically typed by blood type and other antibodies, have to be the proper size, etc. It is certainly true that if an intended recipient for some reason cannot accept the organ, every effort will be made to implant it in the next appropriate person on the list. However, it is very clear, when the organ is removed, who the likely beneficiary is going to be. And, if there isn’t an appropriate beneficiary, the organ likely will not be removed.

  53. “On page 43 of the document, the paper states that R. Bleich, R. Rosensweig, R. Schachter, R. Schwartz, R. Willig, and R. Liechtenstein were all asked the following question: Assuming that brain death is not considered death, what implications might this have with respect to receiving transplants from such individuals?

    Unfortunately, the paper (on page 47) provided a very terse one-line response to this critical and serious question: “All agreed that if an organ was removed b’issur, it still may be used.”

    These rabbis were speaking of a case where the organ was already removed. At this point there is no problem putting it into a Jewish body, just like there is no ethical problem using Nazi research, after the fact.

    However, the reality is that organs are not just taken out be’issur and put in a freezer. They are taken out for a precise person. So the real question is as follows: If you need a heart and they tell you that they have a donor. What this means is that they will remove the heart of a brain dead person. By you accepting this heart it means that you are participating in killing this person. If you don’t accept the heart it could be that they won’t use it or they might use it for someone else who doesn’t have a problem with brain death. But if the heart is going to you, and you feel that brain death is murder, how can you agree to take a heart from someone that they are killing in order to give you the heart.

    Kelal yisrael will not accept this type of behavior, it doesn’t matter how many rabbis say it is halakhically permissible.

  54. The only Israeli “majority” the author seems to care to take into account are the “gedolim” of the Ashkenazic charedim (Lita’im).

    The posekim within Religious Zionism and within the Sephardic world of Shas are together the large majority of Israel’s Torah world today, and they generally back brain-death as halakhah le-maaseh for their communities.

    Also, who is best qualified to interpret Rav Moshe’s position, Rav Tendler or Rav Elyashiv? And which of them has better knowledge of the issues and better experience with the realities of the entire Jewish public? It seems clear that the answer is Rav Tendler on all counts.

  55. Ben G: I fail to see how ethically one can be comfortable ruling it murder or safek murder and still officially allow it on the other end.

    If someone is lying on his death bed and an organ donation is available, I’m not sure what prohibition he would be violating to accept it. I can’t see how lifnei iveir would apply at such a distance. Add to that, that there are poskim who permit organ donation.

    Unless we are setting communal policy and not dealing with a specific case. But that’s not where we’re at right now.”

    I was speaking from ethical considerations and not whether something is technically prohibited or not. Things can be ethically wrong even if there is no one specific issur one is violating.

    However, recent comments seem to indicate that organs are harvested for specific people and not just stored in an “organ bank” so it makes the case even stronger that one would be participating in a situation of murder or at least safek murder if one truly does not consider brain death to be death.

  56. Unless we are setting communal policy and not dealing with a specific case. But that’s not where we’re at right now.

    A pesak like this applies to an entire class of individual cases and de facto has implications for communal policy. Isn’t the whole idea of “the gedolim” that they have the broad shoulders to set communal policy? Whatever one thinks of the Religious Zionist poskim, at least they tend to realize that psak ramifies, and therefore must be issued, with an eye toward communal and national concern. Unfortunately the Lithuanian gedolim tend not to think this way which leads to the absurd situation where communal policy issues are determined merely as the default aggregation of thousands of “individual” cases, resulting in the “we receive but don’t give” mentality of the community and chillul hashem on many levels.

    A thousand individuals get the OK to buy kidneys from poor donors in underdeveloped countries and before you know it you have a full fledged black market operation. A thousand individuals in a community that categorically refuses to donate organs from brain dead donors get heart lung and liver transplants and before you know it there is a massive shortage and people with means buy their spare parts in China. But these considerations are clearly irreverent because we are just talking about individual cases, not communal policy.

  57. The Tzohar rabbinical organization in Israel, supported by dozens of Rashei Yeshivah and prominent rabbis, amongst them world-class poskim, supports brain-death as a definition and organ donation as a practice. Members of Tzohar proudly promote this position without any fear of Rav Elyashiv and his followers, who will never let the national and universal health situation intrude on their “yirat hora’ah”. Let the chareidim follow their poskim, while we follow ours.

    The RCA, in this and in many other very important issues, seems to be falling in as impotent followers of the Litvish charedi world.

    I think that even for American Jews, Tzohar is already a far more relevant and in-tune organization than the RCA, with far more to offer to the Modern Orthodox Jew. The RCA had better reform itself, allow open discussion and membership to all Torah scholars, and replace its impotent leadership. Otherwise life will simply leave it behind.

  58. Ben G wrote,

    I fail to see how ethically one can be comfortable ruling it murder or safek murder and still officially allow it on the other end.

    If Reuven tells Shimon to murder Levi, or else Reuven will murder Shimon – Shimon isn’t allowed to kill Levi.

    If Revuen comes to murder Shimon, Shimon is allowed (even required) to do everything he can to kill Reuven. That’s self defense.

    If a Jew needs an organ transplant, and will die without it, accepting an available organ is self defense. Moreover, the recipient isn’t the one pulling the plug. He just says “yes”, and by causation, the brain-dead (halachically alive person) is killed.

    I would submit to the group the possibility that, while indirect causation of murder is forbidden, perhaps is not “yaharag v’lo ya’avor” – and a person who will die without receiving said organ is allowed to say “yes”.

  59. Many of those commenting on the post have mentioned how unfair or immoral it is to forbid organ donation using brain death criteria but allow receipt of said organs.

    Halacha has its own set of morals that are not always in consonance with twenty-first century beliefs or philosophy. There is a sugya in halacha that relates to “benefit from a prohibited act.” In the example of milk and meat, the result remains prohibited. One other example where the result of a prohibition might be permitted is kilayim – grafting 2 trees, which is a Biblical prohibition but the fruit may be eaten.

    While I am not comparing the ethical dilemma of organ donation to forbidden foods in terms of moral weight, there is precedent for saying – if you ask “Can we do this” the poskim will say no. But if the question is “it’s already done, can we receive benefit,” the answer may be yes. I don’t see this as significantly different from halachic practices in a variety of different areas (eg. Shabbos clocks, or blechs for that matter) where a vital halachic distinction may be lost on society at large.

  60. “But if the question is “it’s already done, can we receive benefit,” the answer may be yes.”

    But that is not how organ donation works.

    “Halacha has its own set of morals that are not always in consonance with twenty-first century beliefs or philosophy.”

    Kedoshim tiheyu means we don’t do things that cause a chilul hashem even if technically it might be permitted.

  61. MS,

    The meaning of Kedoshim Tiheyu is an important philosophical machlokes (between Rashi and the Ramban on Chumash). I don’t know if there is a specific codification of Kedoshim Tiheyu as an injunction not to cause chilul hashem although certainly chilul hashem has its own halachos. Are you saying that it is a chilul hashem to forbid organ donation but permit organ receipt, or a chilul hashem to allow end of life support and organ harvest when brain death criteria are met – I could hear both ways.

    With regard to your first point I don’t know exactly what you mean – are you saying the organ is always harvested for the benefit of a certain recipient? And is it clear that benefit in such a way is halachically prohibited (or immoral)?

  62. The only proper approach is the following, and this should be made the law in the United States. Only people who agree to allow their organs to be harvested should be permitted to be organ recipients. There are lots of people waiting for organs and many of them will die waiting. No one has to be an organ donor, but by the same token it is not right that one who doesn’t want to be an organ donor should be able to benefit and be an organ recipient if he wasn’t in the program.

    Would the haredi world be so opposed to brain death if they knew that they would never be able to receive organs? It is easy to be opposed to brain death when you don’t suffer any consequences for this opposition. Would the haredi world be willing to pay the very real price for its principles? Would they be willing for foregoe organ transplants in order to follow the halachah as they see it?

  63. No one has to be an organ donor, but by the same token it is not right that one who doesn’t want to be an organ donor should be able to benefit and be an organ recipient if he wasn’t in the program.

    I mean it is not right because why should someone who didn’t participate in the program get an organ while someone who was willing to be a participant doesn’t get the organ and dies as a result of this? Is anything more selfish than this? How is it fair to give organs to people who don’t agree to give their organs and this causes others to die? If we had plenty of organs it wouldn’t be a problem, but we don’t. Whenever X gets an organ, Y dies because he doesn’t get this organ.

  64. Jeremy Simon: Do you have something in particular in mind? Under what circumstances do you think that a patient is declared brain-dead but is not dead per R. Tendler?

    Perhaps Dr. Stadlan can clarify, but my understanding is that it is not uncommon for patients to be brought to brain death in order to harvest their organs. I’m no expert but that is what I’ve been told by doctors. Would Rav Tendler pasken that a Jew should refuse the organ from such a person?

    Dr. Stadlan: An intended recipient is identified when an organ is removed. In other words, when an organ is harvested from a brain dead donor, it is known exactly who it is going to, and that person has already been notified and has been told to go to the hospital and be prepared to accept the transplant.

    Is it always the case that only one organ is removed from a donor? Can the removal of other organs cause the donor be dead according to all opinions by the time this specific organ is removed?

    MS: These rabbis were speaking of a case where the organ was already removed.

    That seems like a leap, and something easily confirmed or denied. Anyone here have access to any of the poskim? I just saw Rav Schachter on Friday and could have asked him.

    Joseph: The posekim within Religious Zionism and within the Sephardic world of Shas are together the large majority of Israel’s Torah world today, and they generally back brain-death as halakhah le-maaseh for their communities.

    I agree with you that he left out important poskim like R. Avraham Shapira, R. Mordechai Eliyahu and R. Nachum Rabinovich. But let’s remember that not every prominent rabbi should be included on a list like that. The names I just mentioned should, but not everyone should.

    Ben G: I was speaking from ethical considerations and not whether something is technically prohibited or not. Things can be ethically wrong even if there is no one specific issur one is violating.

    When a dying person asks you a she’eilah, you don’t pasken strictly beyond the halakhah. THAT is unethical.

    The basic point I’m trying to make is that the she’eilah of donation and receipt are different questions, even if related. I certainly see the ethical issue but I don’t know that I’m ready to pasken beyond the technical halakhic requirements when someone’s life is on the line.

    MJ: The Orthodox world will not make any dent on the black market on organs. We’re a tiny portion of the population.

    Anonymous: I suspect that medical ethicists will have problems with your proposal to limit organ donations to only those who are willing to donate organs.

  65. >>Perhaps Dr. Stadlan can clarify, but my understanding is that it is not uncommon for patients to be brought to brain death in order to harvest their organs.

    _I_ can clarify. This is 100% false and a slander on the system. Frankly, I have half a mind to say you should edit that part of the post out, as it spreads dangerous misinformation.

    >>Is it always the case that only one organ is removed from a donor? Can the removal of other organs cause the donor be dead according to all opinions by the time this specific organ is removed?

    Then at the _very least_, heart transplants should be 100% assur.

    >>MJ: The Orthodox world will not make any dent on the black market on organs. We’re a tiny portion of the population.

    Actually, Israel is relatively major fraction of this market due to its low supply of organs due to halachic concerns.

    >>Anonymous: I suspect that medical ethicists will have problems with your proposal to limit organ donations to only those who are willing to donate organs.

    It’s been proposed before. Some ethicists approve, and some (most) don’t think it is a good idea. But there a public policy problems with it as well.

  66. My intention was not to comment, critique, or defend the RCA position, nor imply that I agree with it. It is a complicated document that raises many issues – several of which I have opinions on, some positive and some negative – but that I am not sharing at this time. My goal was only to comment on the Jewish Week article, which, in my opinion, did not present the issues fairly.

  67. I should also add that I think that anyone as misinformed as you evidently are about the facts of organ donation etc. (based on you first comment that I responded to above), is more or less pasul from participating in a discussion of this. If that sounds harsh, it may be, but these issues are too important to be discussed by anyone who does not know exactly what he is talking about.

  68. Jeremy Simon: _I_ can clarify. This is 100% false and a slander on the system.

    I asked Dr. Stadlan for a reason, because my information comes from him, more or less.

    I should also add that I think that anyone as misinformed as you evidently are about the facts of organ donation etc. (based on you first comment that I responded to above), is more or less pasul from participating in a discussion of this.

    If we’re going to play that game, then I say that anyone who cannot differentiate between the halakhic aspects of donating and receiving an organ should not be allowed to discuss it in public. Let alone those who publicly state that the reason some would differentiate is because they don’t value gentiles.

  69. I think Jeremy Simon and/or Dr. Stadlan should be given a chance to give the other side of the story on this matter in a full-length post (or perhaps posts). It’s only fair.

  70. I must moderate my last comment. Precisely because the issue is so important, every _should_ participate. However, the degree of misinformation is frankly scary, and statements of fact, even tentative ones, should be left to those who have first hand knowledge of them.

  71. Dr. Stadlan has agreed to write a guest post, hopefully this week.

  72. Indeed, I have refrained, for the most part at least, from making halachic statements. However, I was talking about an issue of metzi’us, regarding which there are right and wrong answers, whereas the distinction between donating and accepting is at least partly a matter of judgement, where public opinion may be at issue. Also, I know that in my case, and in many others probably as well, the comment that accepting is deeply problematic if donating is assur took into account the potential halachically relevant distinctions, and feel that as a broader matter, making receiving an organ muttar if donating is assur, is just wrong.

  73. And now, a halachic question. Take the following basic case. A patient is brain-dead according to medical criteria, and his organs are harvested. At what point in the process (many steps of which I have left out), is an issur violated, and by whom?

  74. And a second question. (Note, neither of these are rhetorical.) Is it muttar to knowingly sacrifice your life for another?

  75. >>And a second question. (Note, neither of these are rhetorical.) Is it muttar to knowingly sacrifice your life for another?<<

    Halachically, it's almost impossible (except in exceptional circumastances such as wartime). See the following book (Hebrew) on the subject.

    http://www.daat.ac.il/daat/vl/tohen.asp?id=447

  76. Aiwac,
    It would seem from that source that, at least according to R. Kook, it would at least be muttar to give up your life, esp. if you are already brain dead and therefore are pretty clearly a “chayyei sha’ah”

  77. You read the whole book already?! 🙂

    Also, how could someone willingly volunteer their life when they are no longer conscious?

    More to the point, would the naysayers to brain death consider it hayei sha’a or simply alive?

  78. The RCA paper is very specifically not setting policy. It is providing information to rabbis so they can make their own decisions. It also, to my recollection, does not address receiving organ donations.

    This is a study for the members of the RCA. The members of the RCA are the large majority of the Modern Orthodox rabbinate. How is this not setting policy? Actually it says nothing about whether it is setting policy (at least when I ran a computer check for that word). All it says is “This Study is Designed to Assist Members of the RCA in the Process of Psak Halacha and is itself not Intended as a Formal Ruling.” Certainly it is doing more then merely providing information; it is aiming to influence the parameters of the psak of the MO rabbinate.

  79. Aiwac,
    Do you disagree with my reading of it?

  80. Your reading of what?

  81. Regarding R. Steinberg, I have ocnfirmed that he accepts brain death, but it is not based on anything R. Waldenberg said. It would, however, seem to be based on the position of RSZA that he published in his encyclopedia.

  82. Dr. Jeremy Simon

    “Israel is relatively major fraction of this market due to its low supply of organs due to halachic concerns.”

    pehaps this will change since israel became the first country to adopt a law giving translant priority to those who’ve signed their own organ donor cards. see: http://www.msnbc.msn.com/id/35842049/ns/health-health_care/

    prior to this new law, which has been attracting a lot of attention, the majority of the top 100 google hits for “israel organ transplants” were about trafficking

  83. answers to questions:

    usually many organs are harvested from one donor. Obviously the goal is to help as many people as possible, so it is possible to obtain 2 kidneys, 2 lungs, 1 heart, 1 liver, and occassionally other tissue from one donor.

    It is impossible for me to address what every physician does. Generally, it is not accepted practice to manipulate a patient’s treatment in order for that person to become brain dead and donate organs. To be fair, there are cases when a patient’s brain is horribly damaged, but the patient is not dead. A decision can be made not to institute further treatment that is judged to be futile(for example, sometimes in patients with very high pressure in the skull, a large portion of the skull is removed to make more space and bring the pressure down. This is done if it is felt the patient has a chance to make a signficant recovery. If there is little to no chance of recovery-obviously a judgement call to some extent- then this surgery is not done). In this situation, not instituting new treatment or scaling back of other treatment could result in the patient becoming brain dead. However, the first decision to be made is whether recovery is possible. The fact that a patient progresses to being brain dead is a function of the underlying damage. The only possible role of the physician is that in hopeless cases, sometimes not absolutely everything is done to prevent the patient from becoming brain dead. I am not personally aware of situations where treatment was underataken to push a patient into being brain dead. The distinction is active versus passive.

  84. “pehaps this will change since israel became the first country to adopt a law giving translant priority to those who’ve signed their own organ donor cards”

    Now, why did Israel became the first country to do this? It clearly has to do with the controversial social influence of some posekim in Bnei Brak… It is important to state the truth clearly and openly.

  85. Aiwac,
    My reading of R. Kook.

  86. I’ll have to re-read the book (I’m nowhere near as fast as you), but my general impression was that such a reading would be tenuous at best (again, I’ll have to check).

  87. Sorry… please forgive my blunder at 2:26 pm on Dec. 3 when I inadvertently substituted the word “dead” for “alive”:

    (iv) Even the case described above (iii) is dead. Only the irreversible termination of circulation (such that even artificial means could not restore it) constitutes death. (R. Bleich possibility 2)

    I should have written

    (iv) Even the case described above (iii) is alive. Only the irreversible termination of circulation (such that even artificial means could not restore it) constitutes death. (R. Bleich possibility 2)

    Thank you and a freilekh Chanukah.

  88. Some of the claims made by the RCA report were previously made in a 2004 Tradition article, and then rebutted by Rabbi Dr. Edward Reichman, who showed that for supporters of brain death as the halakhic definition of death, new medical findings should not impact their position. See here for more details.

    http://text.rcarabbis.org/from-our-archives-in-defense-of-brain-death-and-halakhic-organ-donation-rabbi-dr-edward-reichman/

  89. Gil: “I agree with you that he left out important poskim like R. Avraham Shapira, R. Mordechai Eliyahu and R. Nachum Rabinovich.”

    When the document came out I think that I wrote a comment on Hirhurim to the effect that I was surprised that even though the authors acknowledged RN Rabinovich as an authority who supports brain death, and specifically (and in detail) engage his reading of the Rambam, they don’t seem to have contacted him at all to ask his opinion, or to get his thoughts on their reading of his words. I thought this was especially odd since the authors do seem to have reached out to other living authorities (on both sides) where possible.

    It’s surely possible that they did contact him and he did not want to comment (although if so they should have noted as such as they did, on certain points, with R. Tendler). It may also be that they contacted him, but nothing of significance was gleaned (although I doubt it). Or it may be that there is some other reason he was not contacted (is he still publicly active? Truth be told I don’t know much about him other than that he’s supposed to be an expert on the Rambam).

    Anyway, I just thought this was a small oversight, if potentially an important one.

  90. Joseph Kaplan

    “Anyway, I just thought this was a small oversight, if potentially an important one.”

    Seems to me to be more of a pattern than an oversight. Unless all these are also “small oversights”: Not interviewing R. Walfish, not mentioning R./Dr. Reichman’s article, “ignoring important poskim like R. Avraham Shapira, R. Mordechai Eliyahu and R. Nachum Rabinovich” (to quote Gil), ignoring Dr. Standlan’s recent Meorot article (he previously posted he sent them an earlier draft), and the other omissions that Dr. Standlan will hopefully tell us about when we have his guest post.

  91. I meant that David Shabtai didn’t quote those poskim. The RCA paper certainly did.

  92. Either way, the point stands.

  93. Dr. Simon,

    In Gil’s defense, he may be confusing the protocol for non-brain dead, non-heart beating donor in which life support is withdrawn to achieve cardiac death. How many people that you know who are not involved in the medical field, medical ethics, or health law are acquainted with specifics of the different protocols, how they came to be implemented, which are widely practiced and which are not?

    But this just points to the fact that in the US public confusion over organ donation, not to mention EoL care in general, is rampant. And for the Orthodox community you have a level of halakhic confusion superimposed over the misunderstanding of various legal and medical issues.

    But what I really question is why this report was put together at all when the major positions are already set forth and well known by any competent rabbi–if not to retard the gaining acceptance of brain death criteria on MO circles.

    To which I should also add that in the US the number of cases per year when a member of an RCA member served Orthodox community suffers the necessary sets of injuries to render him or her a good donor candidate is small. Whereas the number of cases where a member of the aforementioned community faces a standard decision in EoL care is probably daily. Yet where is the treatise from the RCA helping rabbis to make informed end of life decisions which are actually a good deal more complex than the question of brain death and are often likewise “safek rechitza”?

  94. MJ: I wasn’t aware that the possibility of a washing was an important Halakhic consideration 🙂

    Re all the people thinking this was meant to set policy: I remember reading somewhere that R Schachter had changed his mind recently about brain death. Can anyone confirm? Might that have prompted a re-evaluation like this one?

  95. Oy – my mild dyslexia coming through.

  96. MJ: To which I should also add that in the US the number of cases per year when a member of an RCA member served Orthodox community suffers the necessary sets of injuries to render him or her a good donor candidate is small. Whereas the number of cases where a member of the aforementioned community faces a standard decision in EoL care is probably daily. Yet where is the treatise from the RCA helping rabbis to make informed end of life decisions which are actually a good deal more complex than the question of brain death and are often likewise “safek rechitza”?

    Try this book: http://j.mp/fAjaqh

  97. Does the issue of mai chazis (whose blood is redder/sweeter) play a role if the recipient is a Jew and the donor is not? It could be argued (R Elchanon Wasserman-kuvets shiurim on Pesachim takes this as a given) that the requirement of mesiras nefesh only applies where the potential victim is not a mumar

  98. R’ Shmuel,
    Thank you for the excellent point. Indeed, R. Bleich raises this as an important theoretical possibility in addressing the propriety of receiving a heart transplant, in his Benetivot Hahalakhah Vol. III (KTAV Publishing, 2000), pp. 154-160. However, in actual practice, R. Bleich refuses to countenance relying on such reasoning, because once murder is exegetically linked to na’arah heme’orasah, it is forbidden to murder in order to save one’s own life (or someone else’s life), even if the reasoning of mai chazit does not apply (just like in the case of na’arah heme’orasah, where the interdiction is prohibited no matter what the rationale, and no matter how compelling the piku’ach nefesh casue).
    Additionally, although R. Bleich does not emphasize this point, he does mention the opinion of the Meshekh Chokhmah to Exodus 21:14 which indicates that it is even more important for a Jew to respect the sanctity of life of a Noahide than the sanctity of life of a Jew, because of the mitzvah of Kiddush Hashem. Thus, it seems to me (Shalom Spira) one could argue that this all the more so strengthens the above conclusion of R. Bleich.

  99. That said, R. Bleich does present (ibid.) an alternate justification to allow a Jew to receive a heart (or other organ that can only be procured from a brain dead donor). He writes that there is such a demand for organs that – whether or not a Jew requests the organ – the hospital will remove it from the donor one way or another. Therefore, the Jew is not guilty of geram retzichah if he requests the organ.
    In the series of messages I left on R. Bleich’s telephone machine, I pointed out to him (kitalmid ha’yoshev bakarka vidan lifnei Rabbo) that his justification (while perhaps once understandable at the time he published it) can no longer be granted credence. The hospital will only remove the organ from the brain dead patient if instructed to do so by a recipient who is willing to receive it. Therefore, assuming that a brain dead patient is safek alive, safek dead, the recipient is guilty of safek geram retzichah (concerning which the obligation of Kiddush Hashem commands yehareg vi’al ya’avor in the form of shev vi’al ta’aseh). Even if a thousand other recipients are waiting in line to receive the organ, it will at least take several more minutes for the hospital to telephone the alternate recipients, for the recipients to travel to the hospital for surgical preparation, etc. Thus, it should be forbidden for a Jew to receive the transplant, since it is safek geram retzichah of several minutes, which is itself yehareg vi’al ya’avor. I say this as a student who does not even lift a finger without consulting R. Bleich; but the facts are the facts: R. Bleich’s justification to receive an organ has apparently become inoperative, and so apparently should be retracted.

  100. I read R. Feldman’s book when it came out. It was clearly written for the layperson. Unfortunately, it has almost no discussion of real cases of medical futility and very little of the halakhic discussion that rabbis would find useful.

  101. And now to explain how R. Shlomo Zalman Auerbach theoretically justified receiving an organ (that can only be procured from a brain dead patient), and why (with all due reverence exhibited before the great luminary R. Auerbach) I do not think his reasoning is sufficiently persuasive to be implemented halakhah lima’aseh:

    In a conversation with me when he visited North America for this past Shabbat Pinchas, R. Avraham Steinberg gave me what appears to be the best explanation possible of RSZA’s position, which not only authentically parallels that which is published in RSZA’s name by R. Simchah Bunim Lazerson [Shulchan Shelomoh, Erkei Refu’ah I (Jerusalem, 5766), p. 277, as well as Erkei Refu’ah II, pp. 12-13, 17-19, 24-44, 48-50], but which also clarifies the apparent lacunae in RSZA’s reasoning.

    After the pregnant sheep experiment, and upon investigating the halakhic sources regarding the definition of death, RSZA favored position (ii) [-refer to Dec. 3, 2:26 p.m.], but also recognized the safek possibility of position (i). Because of the safek, RSZA believed that a Jewish healthcare worker must be stringent out of doubt like position (ii). However, RSZA also held that Noahides have the right (under the rubric of the Noahide Code commandment of “dinim”) to define the parameters of retzichah, so long as they do not explicitly contradict what the Talmud says about the definition of death. So, for instance, the Third Reich was in serious violation of the Noahide Code when it decided that non-Aryans are legally considered dead, but the American law system was in acceptable compliance with the Noahide Code when it decided that brain dead patients (as defined by irreversible coma and apnea) are not considered alive. A Jew could never follow American law on this matter, but a Noahide could.

    Therefore, RSZA forbade organ donation in Israel (where the society is basically Jewish and so has no right to rely on the Noahide Code), knowing full well this would spell the death of all Jews there who desperately needed a heart transplant and the like. [What could RSZA do? Such is the obligation of Kiddush Hashem; to die rather than kill or even cause someone else’s death.] But in the Diaspora (where the society is basically Noahide and so has the right to rely on the Noahide Code), RSZA allowed a Jew to save his own life by registering to receive an organ, since Noahide standards of homicide are different.

    [Before the pregnant sheep experiment, RSZA thought that the Talmud in Arakhin 7a indicated that brain dead patients are definitely alive. Therefore, before the pregnant sheep experiment, RSZA was convinced that (ii) is correct and that (i) is wrong, and he therefore forbade organ donation even in the Diaspora (since even the Noahide Code would regard a brain dead patient as alive). After the pregnant sheep experiment, the proof from Arakhin 7a was torpedoed, and RSZA was now left with a safek between (i) and (ii). This was the big chiddush of the pregnant sheep experiment: to permit organ donation in the Diaspora. For a Jew who happens to live in a Noahide society (i.e. the Diaspora), he can register for an organ, on the assumption that the healthcare workers who will procure the organ are Noahides.]

    And why does it seem to this student that RSZA’s creative reasoning is not sufficiently persuasive to be implemented halakhah lima’aseh? Because R. Moshe Feinstein actually mentions a similar possibility in the context of explaining how Rabbi Chananya ben Teradyon told the Roman to increase the fire (in Avodah Zarah 18a), but ultimately vaccilates on the matter. Namely, in three responsa of the Iggerot Mosheh [YD II, no. 174 (sec. 2); CM II, no. 73 (sec. 3); CM II, no. 74 (sec. 2)], R. Feinstein indeed suggests that perhaps Noahides have different laws of homicide than Jews, which is why there was no prohibition of geram retzichah for Rabbi Chananya ben Teradyon to tell the Roman to accelerate the fire. However, in all three responsa, R. Feinstein expresses uncertainty regarding the matter. This uncertainty is particularly pronounced in the second responsum, where R. Feinstein suggests an alternative solution: that Avodah Zarah 18a was a case of hora’at sha’ah, from which no normative behavior whatsoever can be gleaned. [As I understand it, R. Feinstein’s alternate answer means that Rabbi Chananya ben Teradyon suddenly experienced Ru’ach HaKodesh giving him an ad hoc command to override normal halakhic principles, just as we find in Eruvin 64b that Rabban Gamliel once experienced Ru’ach HaKodesh.] As such, it appears to this student that it is uncertain whether RSZA’s thesis that the laws of homicide for Noahides are different than for Jews is true (-though others are free to disagree with me).

  102. And now to explain in encapsulated form why I see the status of brain death is halakhically a safek between options (i), (ii), (iii) and (iv) [-refer to Dec. 3, 2:26 p.m.].

    Yoma 85a, with the attendant codification in Rambam and Shulchan Arukh, defines apnea as death. Heartbeat is granted no importance. At the same time, Rashi in Yoma 85a writes that a heartbeat is also a sign of life. Moreover, Chiddushei HaRan in Chullin 32b records a dispute between himself and another anonymous authority as to whether a animal without lungs but with a heart is considered alive. Ran himself believes that it is, such that Ran apparently regards a breathless heartbeat as a sign of life. On the countervailing side, R. Edward Reichman (in his excellent TuM article) observes that the Rishonim envisaged the heart as a respiratory organ, such that the proofs from Rashi and Ran are inconclusive. On the countervailing side to that countervailing side, R. Bleich (Benetivot Hahalakhah III, p. 134, argues that – ein hakhi nami – even today the heart is a respiratory organ (since the purpose of circulation is to facilitate metabolic gas exchange), such that there is no reason to overturn the proofs from Rashi and Ran. [There’s also a Rabbeinu Bachya to Deut. 6:6 who derives from there that the heart is the last organ to die, but it’s questionable whether post-talmudic authorities possess the authority to expound upon Scripture the way Rabbeinu Bachya does; as per R. Ovadiah Yosef’s Shu”t Yechaveh Da’at 6:30.]

    Shu”t Chatam Sofer YD 338 {whose explanation of Yoma 85a is regarded as normative by both RMF (IM, YD III, no. 132, last line of first paragraph) and RSZA (Shulchan Shelomo, Erkei Refu’ah II, pp. 26 and 32)} three times says that irreversible apnea alone = death and three other times says that irreversible apnea coupled with irreversible circulatory arrest = death. R. Shabtai Rappaport (in his HODS interview) very cogently explains that Chatam Sofer was not contradicting himself; Chatam Sofer meant to say that yes – a heartbeat is a sign of life (thus canonizing as normative the proofs from Rashi, Ran and Rabbeinu Bachya above). However, continues R. Rappaport, a heartbeat is only considered a sign of life when it is fuelled by a patient’s autonomous respiration. That’s why Chatam Sofer freely interchanged apnea with apnea plus circulatory arrest.

    Ergo, the question becomes: is the heartbeat of a brain dead patient in the hospital considered to be halakhically fuelled by his own autonomous respiration? On the one hand, maybe NO – since the patient can’t breathe now and so must be ventillated by machine, but – on the other hand – maybe YES, since the reason he has heartbeat now is because he *used* to breathe on his own (otherwise, he would have gone into cardiac arrest and decomposed long before he arrived at hospital). These two perspectives on the situation apparently parallel the machaloket among Acharonim whether the lactation of a cow eating chametz on Pesach is halakhically considered to be only produced by the chametz eaten now on Pesach, or is actually considered the twin product of the chametz eaten now plus the food the cow ate before Pesach (zeh vizeh gorem). And so we have a safek how to interpret the breathing of brain dead patient.

    We also have a gemara in Sotah 45b (regarding a murder victim who is found decapitated) which establishes unequivocally that the very split second that a running human being is decapitated, he is dead, even though the body keeps on reflexively running afterward. The gemara in Chullin 21a (as explained by the Shakh and Arukh Hashulchan in their commentaries on YD 370) derives from Eli Hakohen that even total cerebral dysfunction = decapitation; other Acharonim disagree, explaining that in the case of Eli Hakohen he suffered irreversible cardiac arrest (and not just total cerebral dysfunction). These other Acharonim assert that Rambam and Shulchan Arukh never mention total cerebral dysfunction as the definition of death, for precisely this reason. According to these other Acharonim, the decapitated runner in Sotah 45b is dead either because (a) there is a Halakhah Limosheh Misinai that a headless body is dead (but a dysfunctional dead is insufficient to produce this); or (b) a headless running body – obviously being unattached to ICU machines – possesses no sustainable circulation. And so we have a safek how to interpret decapitation.

    We also have a Peirush Hamishnayot of Rambam to Ohalot 1:6, who says that a dead lizard tails convulses because it does not possess motion arising from one source. If one accepts the Shakh’s interpretation of Chullin 21a, then one could claim (as does R. Gedaliah Rabinowitz in his HODS interview) that Rambam means to say the converse as well: If corporeal motion does not come from one source (evidently meaning the head, as per Chullin 21a), the patient is dead. On the other hand, as the RCA document demonstrates (with an impressive proof from the Tosafot Rid) one could also read the Rambam to simply mean that it is a common occurrence that lizard tails convulse when amputated, just as it is common that decapitated animals convulse when decapitated, because the source of motion is decentralized. The Rambam never explicitly said: “an animal is dead because its source of motion is decentralized”. For the Rambam, the decentralized source of motion is the *effect* of the death, for the Rambam, and not the *cause* of death. This further illustrates how we have a safek regarding decapitation.

    Even if one should interpret Rambam like R. Rabinowitz, there is a further question: is motion only the external motion of limbs, or even the internal motion of secreting chemicals into the bloodstream? [Nafka mina: hypothamalus-pituitary gland.] This appears to depend upon a dispute among the poskim whether injecting a cytotoxic drug into a victim’s bloodstream is considered proximate cause for a murder conviction. For sources on both sides of the debate, see R. Bleich’s “Medical Malpractice in Jewish Law” (Tradition 39:1), pp. 87-88, 101-103, with accompanying notes, and his Bioethical Dilemmas, Vol. 2 (Targum Press, 2006), pp. 332-333. Intriguingly, this halakhic controversy appears to be symmetrically reflected in the debate regarding the interdiction against moving a gossess (pursuant to the prohibition canonized by Shulchan Arukh YD 339:1). R. Moshe David Tendler rules that one may permissibly inject a radio-labelled substance into an intravenous line already inserted into the gossess, as injecting a substance into the patient’s bloodstream is not considered to be direct manipulation of the gossess. See his Responsa of Rav Moshe Feinstein (KTAV Publishing, 1996), p. 94. By contradistinction, RSZA forbids such an injection as a direct manipulation of the gossess {-See Shulchan Shelomoh, Erkei Refu’ah II (Jerusalem 5766), pp. 28, 32, 40, 49.} This further illustrates how we have a safek regarding decapitation.

    We also have a gemara in Menachot 37a regarding dicephaloids (as explained in Dr. Stadlan’s excellent Meorot article), as well as the Vilna Ga’on’s commentary to Ohalot 1:6, which establish that consciousness is automatically a sign of life.

    Accordingly, all 4 options become equally plausible (with the first being possible through one of two routes):

    (i) R. Tendler’s position.

    ROUTE ONE: A cow’s lactation is only considered the legal consequence of the chametz it eats on Pesach. Thus a brain dead patient’s heartbeat is not a sign of life. Once the brain dead patient is irreversibly unconscious (satisfying Menachot 37a) and irreversibly breathless (satisfying Yoma 85a), the brain dead patient is dead, even if the heart beats, and even if the hypothalamus/pituitary gland functions.

    ROUTE TWO: A cow’s lactation is considered the legal consequence of the food eaten before Pesach. Therefore, the heartbeat of a brain dead patient is a sign of life, which can only be contradicted by decapitation. If one accepts the Shakh’s approach to Chullin 21a (and thus R. Rabinowitz’ approach to the Rambam’s Peirush Hamishnayot), and one further assumes that secretion of chemicals into the bloodstream is not considered a direct action of manipulation, then a brain dead patient who is irreversibly unconscious and irreversibly breathless has been virtually decapitated, and is dead, even though the hypothalamus/pituitary gland still function.

    (ii) RSZA’s position.
    A cow’s lactation is considered (at least as a possibility) the legal consequence of the food eaten before Pesach. Thus, the brain dead patient’s heartbeat is itself a sign of life, which can only be contradicted by decapitation. If one accepts the Shakh’s approach to Chullin 21a (and thus R. Rabinowitz’ approach to the Rambam’s Peirush Hamishnayot), and one further assumes that secretion of chemicals into the bloodstream is indeed considered a direct action of manipulation, then a brain dead patient who is irreversibly unconscious and irreversibly breathless has been virtually decapitated, and is dead, provided that every single cell (or – perhaps better articulated – every single cluster of cells that produces macroscopic results of motion), including those of the hypothalamus-pituitary gland, has been rendered permanently dysfunctional.

    (iii) A cow’s lactation is considered (at least as a possibility) the legal consequence of the food eaten before Pesach. Thus, the brain dead patient’s heartbeat is itself a sign of life, which can only be contradicted by decapitation. The Halakhah follows the Acharonim who oppose the Shakh in his interpretation of Chullin 21a. Nevertheless, physical removal of the cranial unit from the patient constitutes decapitation. As well, based on the gemara in Chullin 46b, total rotting of the brain is like disappearance of the brain, which could also be regarded as decapitation.

    (iv) A cow’s lactation is considered (at least as a possibility) the legal consequence of the food eaten before Pesach. Thus, the brain dead patient’s heartbeat is itself a sign of life, which can only be contradicted by decapitation. The Halakhah follows the Acharonim who oppose the Shakh in his interpretation of Chullin 21a. Moreover, decapitation is only a sign of death when the victim is running (i.e. unattached to ICU machines, and thus incapable of maintaining circulation). If a headless person is attached to a machine that artificially maintains circulation, the person is alive.

  103. I also want to credit one individual who was particularly influential in helping me reach the above conclusion: R. Baruch Solnica (a disciple of R. Moshe Feinstein) who lives in my neighbourhood in Montreal. I asked him recently: Since both R. Bleich and R. Tendler were invited by the White House in 1980 to give testimony on the halakhic status of brain death (-and indeed it is a sparkling Kiddush Hashem that the White House recognized that it is the Chakhmei HaTorah who possess the answers), and since both R. Bleich and R. Tendler successfully did so, both quoting R. Moshe Feinstein, and both arriving at opposite conclusions, why didn’t the U.S. President simply send his private jet (Air Force One) to invite R. Feinstein to the White House and offer his own authoritative halakhic ruling on the topic? R. Solnica was intrigued by my question, and telephoned his friend R. Reuven Feinstein in Staten Island to discuss it. Afterward, R. Solnica told me that – while he is still not certain – his impression from examining the situation is that R. Moshe Feinstein had full confidence that both of his righteous disciples R. Bleich and R. Tendler were capable of delivering an accurate halakhic presentation on the matter to the White House (as they indeed did), and that – even if their conclusions were contradictory – R. Feinstein was “shepping nachas” from both R. Bleich and R. Tendler, since “Elu Va-Elu Divrei E-lo(k)im Chaim” applies to disputes of contemporary poskim, as R. Feinstein himself rules in Iggerot Mosheh, Orach Chaim IV, no. 25. [Indeed, R. Edward Reichman refers to this point in his recent excellent Tradition article, and I am indebted to him as well.]
    Translation (in my terms as I understand it): it could be that R. Feinstein himself recognized the equally plausible possibilities (i), (ii) and (iii) above [-though he definitely does not agree with position (iv), as he states in YD II, no. 174 (sec. 1). But his questioner, R. Yitzchak Ya’akov Weiss, thought that position (iv) was possible, as does R. Bleich, and I indeed think it is hypothetically possible to interpret Sotah 45b that way.]

  104. IMPROVEMENT UPON (AND EMENDATION OF) ABOVE ANALYSIS

    Thanks to Dr. Noam Stadlan’s excellent article posted at https://www.torahmusings.com/2010/12/death-by-neurological-criteria.html , as well as the important subsequent comments posted by him (and his fellow distinguished interlocutors), it emerges that I was totally mistaken regarding the plausibility of option (iv). Therefore, I apologize and retract my earlier suggestion that there is even a safek that a literally decapitated person who is attached to a lifesupport machine is still alive. In fact, he must be dead, as RMF rules in IM YD 3:174 (sec. 1) and as RSZA ruled (apropos the pregnant sheep experiments that he requested), contrary to the suggestion advanced by R. Yitzchak Ya’akov Weisz (Shu”t Minchat Yitzchak V, no. 7, sec. 1), R. Bleich (Benetivot Hahalakhah III, pp. 109-110, 138-141), and R. Schachter (in his article available thanks to the HODS at http://www.hods.org/pdf/R%20Tzvi%20Shechter%20Laws%20of%20Death%20Hebrew.pdf , pp. 140-141)

    This is because of the following two considerations:

    (A) As established by R. Bleich in his recent article “The Problem of Identity in Rashi, Rambam, and the Tosafists” (Tradition 41:2, Summer 2008), a human being is halakhically considered a human being by virtue of the fact that he was born from a human being. In the laws of childbirth, birth occurs with the emergence of either the head or the majority of the body.

    (B) Were it assumed that a literally decapitated human being could halakhically be alive when attached to a lifesupport machine, this would automatically mean that the same should be true for the decapitated head itself. Thus, if the body and head were both attached to separate lifesupport machines, then it would emerge that the patient had suddenly bifurcated into two patients. An overwhelmingly cogent sevara says that one human being cannot suddenly bifurcate into human beings. [Tosafot to Shevu’ot 22b (s.v. iba’eit eima kera) posit that a very compelling sevara (such as the propositions presented in Ketubot 22a, Bava Kamma 46b or Niddah 25a) automatically creates a Torah law, without need for Scriptural support, whereas a weaker sevara (such as the propositions presented in Berakhot 4b, Yevamot 35b, Kiddushin 35b, Bava Batra 8b and idem. 9a, Avodah Zarah 34b, Sanhedrin 30a, Shevu’ot 22b, Zevachim 2a and idem. 7b, Menachot 13b and idem. 73b, Chullin 118b and Temurah 30b) could not be entertained in the absence of Scriptural support. Dr. Stadlan’s sevara appears to be of the former kind, and so does not require any Scriptural support.]

    Ergo, it emerges that literal decapitation, as described by Sotah 45b, automatically constitutes death (to both the head and the body), even if either the head or the body or both are maintained on lifesupport machines concomitant with decapitation. To be alive, a human being must possess both of the anatomical structures that are capable of marking childbirth, viz. the head and a majority of the remainder of the body. Congratulations to Dr. Stadlan for enriching the halakhic sugya of brain death by discovering this point.

    [It should be noted that there is a separate dispute between RMF and RSZA whether – if science will progress such that it will be possible to reconnect the decapitated head with its own decapitated body – the person will be considered alive at the time of decapitation. RMF (ibid.) rules he is dead, whereas RSZA (Shulchan Shelomoh I, pp. 272-273) rules he is alive. Of course, this dispute is academic since at the present time there is no known way to reverse decapitation.]

    In any event, as a matter of practical Halakhah, this development [i.e. the rejection of position (iv)] has no clinical consequence, since approximately 0% of the contemporary brain dead patients being treated in hospitals are literally decapitated. That so, position (iii) regards them all as alive, and position (ii) regards almost all of them as alive. Accordingly, the fact that positions (ii) and (iii) are halakhically plausible creates a safek piku’ach nefesh situation requiring that all contemporary brain dead patients be treated as alive, out of doubt.

    It may also be observed that what was described in my previous comment as position (iii) may arguably contains two distinct possibilities:

    (iii-Alpha) A brain dead patient is dead if the brain has rotted completely, such that it would crumble upon contact with a fingernail. All the more so a brain dead patient is dead if his head is literally removed (even if the body is maintained on a lifesupport machine).

    (iii-Beta) A brain dead patient is only dead if his cranial unit is literally removed (even if the body is maintained on a lifesupport machine). But if the head has not been physically severed from the body, then just because a brain has completely rotted, this is not decapitation, since the head (as an anatomically significant structure that marks childbirth) still exists.

    Accordingly, it emerges that – in the end – there may still be 4 equally plausible ways to view brain death, except that (iv) has been rejected thanks to Dr. Stadlan’s persuasive reasoning, and (iii) has been discovered to contain two separate possibilities.

    I will communicate this information (kitalmid ha’yoshev bakarka vidan lifnei Rabbo) to R. Bleich.

  105. Sorry… correction to the citation of IM in my immediately previous post: YD 2:174 (sec. 1), not YD 3. Thank you.

  106. Is this guy serious?

  107. Doesn’t this interview with Dovid Feinstein shlita answer the question?? No breathing-brain death equals death! Why are Rabbis fighting this?

  108. Thank you R’ Anonymous and R’ Marc Green for your excellent questions.

    Indeed, R’ Anonymous is correct to question position (iii-Alpha) that I outlined above in my comment of Dec. 9, at 6:51 p.m. In fact, if one subscribes to position (iii), then it does not matter whether or not the brain has completely rotten. Even if the brain has completely rotten, the patient is still alive, because the head is still physically attached to the body. Thus, position (iii-Alpha) is rejected and the proper way to conceptualize position (iii) is via what was called position (iii-Beta). Yi’yasher kochakha to R’ Anonymous for illuminating my eyes and helping clarify the sugya of the definition of death.

    The reason I had previously mistakenly believed in the concept of a brain being completely rotten as being significant is because of IM YD 3:132, in the third paragraph of that responsum of RMF. However, I now realize that RMF was simply explaining how to deal with the uncertainty he had previously described in IM YD 2:174, sec. 1, regarding how to diagnose physiological decapitation, apropos RMF’s controversial interpretation of Eli Hakohen. [For extensive discussion of how RMF controversially interprets Eli Hakohen, see my comments from Dec. 27 in the https://www.torahmusings.com/2010/12/death-by-neurological-criteria.html
    forum.] But since, by definition, position (iii) takes the other side on the longstanding dispute regarding Eli Hakohen, there is no reason to even cite RMF’s position regarding a “rotting brain”. A rotting brain is not the equivalent of decapitation. Only the literal removal of the cranial unit constitutes decapitation for position (iii).

    Perhaps, as well, the total drying of the cranial unit (meaning 100% irreversible cessation of circulation to any part of the head) would constitute decapitation, if one accepts RMF’s independent assertion regarding tefillin in IM OC 1:8-9 that total cessation of circulation to a limb constitutes halakhic removal of the limb. However, as RHS observes on pp. 3-4 of his article on brain death at http://www.hods.org/pdf/R%20Tzvi%20Shechter%20Laws%20of%20Death%20Hebrew.pdf , RMF’s assertion is cogently contested by R. Yom Tov Halevi Schwarz in the latter’s Ma’aneh La’iggerot nos. 5-6 (available at http://www.israel613.com/books/MEANE_IGROT-H.pdf ). R. Schwarz (representing several Acharonim) believes that even total cessation of circulation to a limb does not constitute halakhic removal of the limb. Thus, it would presumably emerge that position (iii) once again possesses an Alpha and a Beta, meaning that one could imagine position (iii) incorporating RMF’s tefillin-position that total irreversible cessation of circulation to any part of the head constitutes decapitation, and one could equally imagine position (iii) incorporating R. Schwarz’ opposition to RMF on the question of tefillin. [I.e. R. Schwarz will say that – for position (iii) – even if all circulation to the head has ceased irreversibly, the patient is still alive by virtue of the fact that the head is still anatomically attached (and there is still circulation through the remainder of the patient’s body).] As RHS stated in the 1988 symposium recorded at http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II , there is simply no way for us to be makhri’a between RMF and his opponents on the tefillin question. There is at least a safek that RMF’s opponents may be more correct in their interpretation of the relevant sugya (“yavshah gappah”) in Kiddushin 24b than RMF (with all due reverence manifest before the great luminary RMF).

    Regarding R’ Marc Green’s excellent question. Yes, it is true: RDF’s testimony establishes that RMF believed that breathlessness (even when accompanied by circulation) is death. However, without any responsum written by RMF to justify why this should be, RMF apparently never took into account the countervailing position of the Acharonim regarding cow lactation. [For an extensive discussion, see my comments on the “Neurological Death in Halakhah” forum.] According to that countervailing position, breathless circulation is itself proof of life. Thus, by RMF’s own pesak halakhah elsewhere (viz. IM YD 3:88), it is forbidden to practically implement the ruling he told RDF. And indeed, RDF apparently acknowledged this when asked by this student, as recorded in footnote 135 of the RCA document. [That correspondence occurred after the HODS videotape and was based on the HODS videotape.] For this reason, it seems to this student that a brain dead patient should be treated as safek alive, and therefore the Shabbat must be desecrated to prolong the brain dead patient’s safek life, as per the mishnah in Yoma 83a.

  109. And now to elaborate the position of Chiddushei HaRan to Chullin 32b [-refer to Dec. 8, 3:24 p.m., second paragraph), and its bioethical ramifications for the halakhic status of breathless circulation.

    The gemara in Chullin 32b states that once the trachea of an animal has been severed during the course of ritual slaughter, the lungs are considered to have been virtually removed – since they are suspended from the trachea – and are thereby legally immunized from the possibility of rendering the animal a tereifah, even though the slaughter is not yet complete until the esophagus is severed. [I.e., once the trachea has been severed but the slaughter is not yet complete, even if the lungs will be perforated at that point in time, the animal will not be a tereifah, but will rather remain kosher.] Chiddushei HaRan quotes an unnamed authority who submits that the same applies to the heart, since the heart is also suspended from the trachea. Chiddushei HaRan expresses disagreement with this anonymous opinion, and rules that – quite the contrary – the heart can never be said to be virtually removed from the animal in a legal sense while the slaughter is not yet complete, since the animal could not survive without a heart.

    Apparently, Chiddushei HaRan recognizes the heart as being of a markedly different status that the lungs. An animal in the midst of slaughter can halakhically be alive without lungs, but not without a heart. And thus it emerges that Chiddushei HaRan believes that a breathless heartbeat is a sign of life. And it also emerges that this question is actually the subject of a debate among the Rishonim, since the anonymous opinion quoted by Chiddushei HaRan obviously disagrees and does not regard the heart as being any more privileged that the lungs.

    Actually, R. Bleich (Benetivot Hahalakhah III, pp. 116-119)explains the debate between the the anonymous opinion cited by the Chidushei HaRan and Chidushei HaRan himself somewhat differently. R. Bleich posits that both of those Rishonim regard a breathless hearbeat as a sign of life, but that the anonymous opinion is willing to consider a heart to be virtually removed [for purposes of immunizing the animal from tereifot] even though the heart itself is giving the animal life, whereas the Chidushei HaRan is unwilling to consider the heart to be virtually removed [for purposes of immunizing the animal from tereifot] because the heart is itself is giving life to the animal. Thus, R. Bleich assumes that both opinions regard it as axiomatic that a breathless heartbeat is a sign of life, and therefore concludes that the dispute between the two opinions is whether on can apply the principle of “virtual removal” to an organ that independently grants the creature life, whereas this student (as described in an earlier paragraph) assumes that both opinions regard it as axiomatic that one cannot apply the principle of “virtual removal” to an organ which independently grants the creature life, and therefore concludes that the dispute between the two opinions is whether a breathless heartbeat is a sign of life.

    R. Menachem Kasher (Divrei Menachem I, Chelek Hateshuvot no. 27)offers yet a third possible interpretation to the dispute. He posits that the anonymous opinion holds like R. Jacob of Karlin in his Shu”t Mishkenot Ya’akov, Yoreh De’ah no. 10, that a creature can survive without a heart, whereas Chiddushei HaRan holds like Shu”t Chakham Zvi no. 77 that a creature cannot survive without a heart. As such, R. Kasher explains that the second opinion is unable to apply “virtual removal” to the heart since, if the heart is virtually removed, the animal will be dead [and accordingly the virtual removal of the heart will not only immunize the animal from tereifot, but will actually render it a neveilah]. R. Bleich, loc. cit., dismisses this interpretation of R. Kasher by observing that the Chakham Zvi confidently declared in his responsum that no previous halakhic authority has ever overtly disputed his thesis that an animal cannot survive in the absence of a heart. R. Bleich assumes that the Chakham Zvi must have been aware of all the Rishonim on this subject, including the two opinions recorded in the Chidushei HaRan, when he offered this declaration.

    In any event, it should be noted that, even according to R. Kasher’s interpretation of the dispute, the second opinion in the dispute is indeed saying that a breathless heartbeat constitutes a sign of life. This is because the second opinion is only unwilling to apply virtual removal to the heart [-which, according to R. Kasher, is because the animal cannot survive without the heart], but is obviously willing to apply virtual removal to the lungs. This means that R. Kasher believes that the second opinion holds that a creature can survive without lungs, so long as it possesses a heart. And thus a breathless heartbeat is a sign of life, according to the second opinion. [According to the first opinion, as interpreted by R. Kasher, it is difficult to draw a conclusion, since the first interpretation holds that there can even be life without a heart altogether.]

    Ergo, there appear to be three ways to interpret the dispute within the Chidushei HaRan:

    (i) This student’s interpretation, according to which the very dispute hinges upon whether one regards a breathless heartbeat as a sign of life. The first does not, whereas the second does so.

    (ii) R. Bleich’s interpretation, according to which both opinions regard a breathless heartbeat as a sign of life.

    (iii) R. Kasher’s interpretation, according to which the second regards a breathless heartbeat as a sign of life. It is unclear what the first opinion would say.

    Surprisingly, the entire discussion of Chiddushei HaRan is completely overlooked by Chazon Ish in the latter’s Yoreh De’ah 4:14 (first paragraph, last four lines). Reacting to the aforementioned Chakham Zvi, Chazon Ish expresses disagreement with Chakham Zvi’s assumption that an animal could never live without a heart. Au contraire, insists Chazon Ish: when an animal is slaughtered, the trachea is (typically) severed first, and the heart is “virtually removed” from the animal by that action, and yet the animal is not considered carrion at that moment. Thus, Chazon Ish believes he has demonstrated that an animal can live without a heart. Alas (with all due reverence manifest before the brilliant luminary Chazon Ish), Chazon Ish seems to have overlooked that this very issue was adjudicated by Chiddushei HaRan, and that there is indeed room to argue that a heart is *not* “virtually removed” from an animal during the course of slaughter (as distinct from the lungs, which are).

    In summary, then, Chiddushei HaRan is a source we possess among the Rishonim (together with Rashi and Rabbeinu Bachya) to indicate that breathless circulation is itself a sign of life. Although not specifically mentioned by Chatam Sofer, perhaps the Chatam Sofer was relying on Chiddushei HaRan (and Rashi and Rabbeinu Bachya) in formulating his responsum regarding the definition of life. [Admittedly, RHS, in his 1988 symposium with RMDT recorded at http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II, specifically rejects Rabbeinu Bachya as a source of information on this topic. RHS says, quite candidly, “Rabbeinu Bachya didn’t get the Torah straight from the Ribbono Shel Olam. Rabbeinu Bachya has to have mekorot so that he should be entitled to an opinion”. It’s a powerful argument, and this sentiment has already been expressed in the comment of Dec. 8, at 3:24 p.m., end of second paragraph, invoking a pertinent responsum of R. Ovadiah Yosef. (On the other hand, it is intriguing to note that Mishnah Berurah and Arukh Hashulchan did not approach the issue as R. Ovadiah Yosef, for they did think that the Taz was entitled to synthesize his own “derashah” from Scripture, and hence their recommendation to delay ma’ariv on Shavu’ot night. If such was the privilege of the Taz, then why not accord Rabbeinu Bachya that privilege, as well?) In any event, even granting the total rejection of Rabbeinu Bachya as advocated by RHS, we still have Rashi and Chiddushei HaRan.]

  110. And now to explain how R. Joseph Shalom Eliashiv theoretically justifies receiving a heart (or other organ dependent upon brain death in the donor), and why (with all due reverence exhibited before the extraordinary luminary R. Eliashiv) I do not think his reasoning is sufficiently persuasive to be implemented halakhah lima’aseh:

    R. Eliashiv’s pertinent responsum – addressed to R. Feivel Cohen on 2 Shevat, 5752 – is referenced by the RCA’s 110-page document in footnote 209, and is published in R. Eliashiv’s Kovetz Teshuvot, Vol. I, no. 218. Prior to R. Feivel Cohen’s inquiry, R. Eliashiv had already publicized his belief that a brain dead patient (meaning a patient in irreversible coma with irreversible apnea) is alive, as reported by R. Bleich on p. 347 of Contemporary Halakhic Problems, Vol. IV.

    {Incidentally, even with R. Eliashiv’s published rulings, it is not entirely clear to this student what are the precise legal mechanics behind R. Eliashiv’s ruling: Does R. Eliashiv subscribe to position (ii) [-refer to Dec. 29, 4:52 p.m.]? To position (iii-Alpha)? To position (iii-Beta)? Or perhaps does R. Eliashiv regard it as a doubt between all three, or perhaps even he recognizes the possibility of (i) as well, just that it is counterbalanced by the other possibilities? In a lecture delivered on Sept. 10, 2006, available at http://www.yutorah.org/lectures/lecture.cfm/716089/Rabbi_Hershel_Schachter/Time_of_Death:_Cardiac_Death_in_Jewish_Law , at
    26:50-27:25 into the recording, RHS says an emissary of his spoke with R. Eliashiv about brain death and R. Eliashiv responded he regards brain death as a safek. On the other hand, when I was privileged to meet R. Avraham Steinberg this past Shabbat Pinchas, he reported to me that R. Eliashiv regards a brain dead patient as definitely alive. Perhaps R. Eliashiv has issued different decisions on different occasions.}

    In any event, in his responsum to R. Cohen, R. Eliashiv explains why it is permissible for a Jew to register for an organ. There are two separate problems with which R. Eliashiv must deal:

    (a) The Jew who registers for the organ is violating “lo ta’amod al dam re’akha” vis-a-vis the brain dead donor, by telling the hospital to murder the brain dead donor.
    (b) The Jew who registers for the organ is violating geram retzichah by asking the hospital to murder the brain dead donor.

    In response to the first problem, R. Eliashiv observes that a brain dead patient can only live what he terms “chayei sha’ah”. Although the gemara in Yoma 85a establishes that we must desecrate the Sabbath even to rescue chayei sha’ah (meaning that “lo ta’amod al dam re’akha” will apply even for chayei sha’ah), R. Eliashiv infers a chiddush from the language of the gemara in Yoma 85a that this is only true when the patient with chayei sha’ah is known to us. But when the patietn with chayei sha’ah is unknown to us (and due to considerations of medical confidentiality the hospital will not disclose to us his identity), then there is no obligation that devolves upon us of “lo ta’amod al dam re’akha” for chayei sha’ah of the unknown patient. Thus, asserts R. Eliashiv, a Jew who needs an organ may register for an organ, without risking a violation of “lo ta’amod al dam re’akha”, because he will never know who the donor is.
    {Incidentally, this important problem of “lo ta’amod al dam re’akha” was never tackled by RSZA. One assumes that RSZA would very much depend on R. Eliashiv’s answer regarding this important problem.}

    The more serious problem R. Eliashiv must address is the second, viz. geram retzichah. Here, ignorance of the identity of the donor will not help; geram retzichah is absolutely forbidden whether one is aware who is being murdered or whether one is not. However, R. Eliashiv advances two reasons to bypass the charge of geram retzichah: (1) He convincingly proves that it is a mitzvah to desecrate Shabbat to save even the life of someone such as a treifah or a gossess bidei adam, where there is no death penalty for murdering the patient. From this irrefutable point, R. Eliashiv extrapolates the highly novel suggestion that there is no prohibition for geram retzichah on a treifah or gossess bidei adam. Assuming that a brain dead patient is a treifah or a gossess bidei adam, it would then be permitted to engage in geram retzichah vis-a-vis such a patient. (2) If the Jew would not register for the organ, others would register anyway, since there is such intense demand for organs in hospitals everywhere. Thus, surprising as it may seem, the Jew actually performed a lifesaving “favor” for the donor by registering for the organ [thus blocking others from registering for the same organ.] Once the Jew has already registered, he need not retract his registration, and is not considered a causation of murder.

    And why does it seem to this student that R. Eliashiv’s creative reasoning is not sufficiently persuasive to be implemented halakhah lima’aseh? Admittely, regarding R. Eliashiv’s chiddush apropos the first issue of “lo ta’amod al dam re’akha”, I am unable to comment. So let us assume – for argument’s sake – that the Halakhah follows R. Eliashiv’s chiddush. However, on the second issue, viz. the question of geram retzichah, there appears to be a substantive reason to challenge the two arguments that R. Eliashiv advances: (1) RSZA clearly did not see it this way. He held geram retzichah applies even to brain dead patients, which is why he forbade receiving a heart transplant in Eretz Yisrael. [In the Diaspora he allowed it because he thought that the Noahide Code authorizes the Noahide legislature to modify the laws of homicide. See above, Dec. 7, at 5:30 p.m. for a refutation of RSZA on this count from RMF.] Indeed, RSZA’s more stringent position appears plausible, in light of the fact that the prohibition against suicide and geram retzichah are derived from the same verse, as explained by Maharatz Chiyut in his novellae to Bava Kamma 56a, and as reflected in Rambam, Hilkhot Rotze’ach Ushemirat Nefesh 2:3. Suicide is indisputably prohibited even for a treifah or a gossess bidei adam. If so, geram retzichah should be prohibited in the same context.
    (2) Although it is true that the Jew performed a “favor” for the brain dead patient by registering for the organ and blocking others from registering for the same organ, it is obvious that it is forbidden for the Jew to actually proceed to the hospital in order to be surgically prepared to receive the organ. The Jew must stall in every way possible, and refuse to materialize at the hospital. If the Jew fails to stall and instead proceeds directly to the hospital, the Jew is guilty of geram retzichah for however many minutes earlier this causes the brain dead patient to be killed. Thus, the fact that others are willing to receive the organ in no way mitigates the culpability of the Jew who registers for the organ. Indeed, this is clearly implicit in RSZA’s position who forbids receiving a heart transplant in Eretz Yisrael.

    In summary, due to the safek created by RSZA’s countervailing opinion to R. Eliashiv, it does not seem to this student that one may actually rely on R. Eliashiv’s position to agree to receive a heart transplant. The conclusion is articulated by this student while simultaneously acknowledging that this student (compared with the Gedol Hador Moreinu ViRabbeinu R. Eliashiv) is not even like a putrid drop of dust compared to a mighty galaxy. But as we are told in Psalms 119:46 “I will speak in Thy testimonies before kings, and I will not be embarrassed”. There is compelling reason to challenge R. Eliashiv on this particular matter, and so it should be expressed.

  111. Another point that must be rendered relates to the responsum of HaRav HaGa’on R. Shaul Yisraeli, zekher tzaddik vikadosh liverakhah, which R. Avraham Steinberg testifies on the HODS website was certainly influential in the formulation of the Chief Rabbinate’s ruling to regard a brain dead patient as definitely dead. R. Yisraeli’s responsum is published at http://www.hods.org/pdf/Shaul%20Yisrael%20Heart%20transplant%20permissable%20Hebrew.pdf

    In Shu”t Chatam Sofer, Yoreh De’ah no. 338, in the paragraph that begins with the words “vihineh harivash”, Chatam Sofer describes patients who have stopped breathing but whose circulation continues. R. Yisraeli reports that, all the same, the Chatam Sofer rules that such patients are dead. Thus, the sole definition of death is cessation of respiration, and a breathless heartbeat is not a sign of life. Accordingly, argues R. Yisraeli, a brain dead patient is halakhically dead.

    Of course, R. Yisraeli now faces a difficulty with explaining the ensuing paragraph (beginning with the words “aval kol she’achar”), where Chatam Sofer rules that once a patient lies motionless as a stone and his heart stops beating, then if his breathing stops, he is dead according to Halakhah. Why would the Chatam Sofer mention cessation of motion and of heartbeat, if all that truly matters is cessation of respiration? R. Yisraeli answers that Chatam Sofer was only describing the specific case where a patient trapped upside-down in debris has been rescued feet first, as discussed by Rav Papa in the gemara in Yoma 85a. Under such circumstances, even if we unearth the patient until the chest and do not detect any heartbeat (nor any motion in the limbs that have already been uncovered), the halakhah is that we should still continue to desecrate the Sabbath by further unearthing the patient until his nose is uncovered, whereupon the final test to determine whether or not he is alive will be the attempted detection of respiration. But, argues R.Yisraeli, other than the particular case of an upside-down patient who is unearthed feet first, there is never any point in checking the heart. Absence of breathing, and only the absence of breathing, is the definition of death.

    Alas, R. Yisraeli seems to have simply misread and misreported the Chatam Sofer’s clear words in the paragraph commencing with the words vihineh harivash. The Chatam Sofer actually says that a patient who has stopped breathing but whose heart is still beating (like the ben hatzorfatit according to Andelusians) is alive.
    Having established this, it is not even necessary to attempt to assess the plausibility of R. Yisra’eli’s chiddush in reading the Chatam Sofer’s next paragraph (beginning with the words aval kol she’achar). Nevertheless, for the sake of strengthening the point, it is instructive to do so anyway. R. Yisra’eli’s chiddush is actually unsuccessful in interpreting the next paragraph, because the Chatam Sofer proceeds to discuss the standard practice of undertakers in burying corpses. The Chatam Sofer declares that those undertakers do not bury a body until they confirm evidence of cessation of respiration as well as circulation. There is no way to read these comments of the Chatam Sofer as only being applicable to the context of upside-down debris victims described by Rav Papa. Rather, the Chatam Sofer is enunciating a universal principle of which all undertakers are expected to take cognisance. Death occurs upon cessation of both respiration and circulation. Thus, with all due reverence to R. Yisraeli, it seemingly emerges that his chiddush constitutes an error built upon another error.

    This is not to say that a brain dead patient is necessarily alive. One could still cogently argue that the only circulation that grants life is a circulation that is fueled by the patient’s independent respiration within the past few minutes. Alternatively, one could still cogently argue that Eli Hakohen teaches us the concept of physiological decapitation, and therefore that the brain dead patient is dead. However, as demonstrated in the comment above (Dec. 8, 3:24 p.m.), either of those propositions is subject to a longstanding dispute among the Acharonimm which are unresolved. And thus the status of the brain dead patient stands as an unresolved safek. Nor is construction of a sfek sfeka likula possible, because of the considerations identified in the “Death by Neurological Critera” forum, comment of Jan. 11, 11:56 p.m. Thus, out of remoteful doubt, a brain dead patient must be treated as potentially alive, and one is obligated to override the Shabbat to heroically extend the life of the brain dead patient.

  112. “and both arriving at opposite conclusions, why didn’t the U.S. President simply send his private jet (Air Force One) to invite R. Feinstein to the White House and offer his own authoritative halakhic ruling on the topic?”

    in what language was r feinstein to speak – do you mean with a translator? was r feinstein well enough to travel?

  113. R’ Me,

    Thank you for excellent feedback. You are indeed correct: the first issue you raise is one that R. Baruch Solnica told me was an alternate (or supplementary) possible reason why RMF did not go to the White House. Perhaps RMF would not have been comfortable speaking by way of a translator to the President’s Commission. Also, as yet another (or supplementary) possibility, says R. Solnica, RMF was very humble and wouldn’t feel comfortable attending the “table of kings”, for in any event “your table is greater than their table, and your crown is greater than their crown” (as per Pirkei Avot ch. 6).

    RMF’s state of health is unknown to me. He appears, though, to have been relatively healthy until at least Tu Bishvat 5745, when he wrote the introduction to the last volume of Iggerot Mosheh published in his physical lifetime. There, RMF writes:

    “As is known to everyone, the full responsibility for the publication of this book is placed upon me from its beginning to its end, for they [my assistant publishers] send to me all the manuscripts that I should see and correct them before they enter publication.”

    http://www.hebrewbooks.org/pdfpager.aspx?req=921&st=&pgnum=3

    Admittedly, my impression that RMF was in good health is contested by RJDB on p. 344 of Contemporary Halakhic Problems IV. There, referring to the Bondi letter, RJDB writes:

    “More significantly, the letter is dated Rosh Chodesh Kislev 5745, during the course of Rabbi Feinstein’s final illness. Physicians entirely familiar with Rabbi Feinstein’s condition at the time have advised that in light of his illness the letter be given no credence.”

    I am obviously unable to comment further on the question of whether RMF was in good health in the early ’80s, since I myself was born in 1978 and so I never enjoyed the awesome privilege to meet RMF. My present understanding, which is now featured on the “Statement re Statement re Brain Death” forum (comment on Jan. 20, at 11:38 a.m.), is that I assume that RMF held that brain death=death, but that the Halakhah does not follow RMF because he is refuted by RSZA, and therefore a brain dead patient must be treated as potentially alive, and it is a great mitzvah of safek piku’ach nefesh to heroically maintain the life of the brain dead patient. [Moreover, as further referenced in that comment there, although RSZA holds it is not necessary to resuscitate a brain dead patient, RJDB holds that it is, and I believe that on this independent issue (i.e. whether a gossess must be heroically resuscitated) the Halakhah follows RJDB as a matter of safek piku’ach nefesh.]

    In any event, it is very interesting that RMF didn’t at least allow himself to be videotaped in the early ’80s to explain his position on the medicolegal definition of life. Just the other day, I visited the Lubavitch Yeshiva in Montreal, where a DVD of R. Menachem Mendel Schneerson’s farbregnen from thirty years ago (on the occasion of 24 Tevet) was shown. On the DVD, he spoke for two hours (interspersed with Chassidic melodies chanted by the audience). The quality of the DVD was amazing. I could see and hear every Yiddish word of R. Schneerson clearly, and even though my comprehension of Yiddish is not so strong, I basically understood his message. [There were also English subtitles, which definitely helped.] One Lubavitch Chassid, R. Yitzchak Rosenberg (who serves as the Chazzan Sheni of Congregation Beth Zion in Montreal) was sitting next to me watching the DVD. R. Rosenberg told me that he was personally there at that very farbregnen thirty years ago, and the DVD was perfectly accurate, without digital alteration (except for the addition of English subtitles to facilitate comprehension).

    So, obviously the videotape technology existed in the early ’80s, but for whatever reason (apparently the great humility of Moreinu ViRabbeinu HaRav HaGa’on RMF), RMF was never videotaped. Still, it seems a little surprising. Or, as RSZA said it (Shulchan Shelomoh, Erkei Refu’ah II, p. 48):

    “[If it were the opinion of RMF in 5745 that brain death=death,] behold it is a great wonder (pélé gadol) that RMF did not mention that it is a mitzvah to take organs to save the lives of other endangered patients”.

    Nevertheless, despite the fact that I cannot fully explain why RMF did not allow himself to be videotaped, I believe the bottom line is that RMF ruled that brain death=death (because RDF and RMDT are tzaddikim gemurim and I accept their testimony as absolutely authoritative and true). At the same time, I also believe that (out of doubt) the practical Halakhah is that a brain dead patient must be treated as potentially alive (for the reasons also explained in my referenced comment), and it is a mitzvah of safek piku’ach nefesh to heroically maintain his life (including through resuscitation).

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