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.