Death by Neurological Criteria: A Critique of the RCA Paper and the Circulation Criteria
Guest post by Dr. Noam Stadlan
I want to thank Rabbi Student for the opportunity to address his audience. In the interests of full disclosure, during my career spanning (so far) 22 years as a resident and a practicing neurosurgeon I have declared a significant number of patients dead based on neurological criteria. I am also a member of the board of the Halachic Organ Donation Society, although what I present here represents only my own views. My goal is not to embarrass or defame anyone or any institution and I apologize to anyone who, after reading this article, feels embarrassed or defamed. I encourage them to address any points where they feel I have made errors. On the other hand, poskim, rabbis, and the interested public need to have access to all relevant information in order to make the best decisions possible. I also apologize in advance for being lengthy, but a significant amount of information is necessary to grasp the outlines of the topic.
The RCA and the Va’ad Halacha deserve our thanks for devoting a large amount of time and effort to this project. Defining death is not easy, even in the secular world. Thousands of papers have been published in journals devoted to medicine, science, philosophy, and ethics. The Halachic discussion adds another layer of complexity. The amount of effort needed to produce some coherence from this mass of information is staggering, and the Va’ad should be applauded for tackling this difficult topic. However, the paper ended up being very one-sided and surprisingly incomplete. My presentation will address this topic at length. I will also provide support for the idea that the classic Halachic criterion for death, circulation, no longer produces logically coherent results in the era of modern medicine and that an alternative is necessary.
This discussion is divided into ten sections. The first three briefly explain brain death criteria from a historical and physiological perspective. The fourth addresses what relevance this has to Halacha. The fifth through eighth raise specific issues with the RCA paper. The ninth makes what I think is a vital point that must be addressed in any coverage of this topic. And the tenth raises a number of questions to those defending the RCA paper.
I. Brain Death Criteria
Until the mid 1950’s, the human body could be seen as an interdependent whole. In other words, each organ depended on the intact function of every other organ for survival. The heart had to deliver blood to the entire body. The brain had to tell the lungs to move, thus providing oxygen to the blood. Similarly the liver, kidneys, and all the other organs had to do their job. Failure of any organ resulted in the inevitable failure of every other organ.
The most obvious sign of life was neurological function. A person who was awake and talking was obviously alive. If a person did not appear to have neurological function (did not respond to stimulation such as pain and did not have reflexes), then further observation was done to see if other signs of life were present or absent. The next most obvious signs were breathing and pulse, since they can be observed or palpated (or, in the case of breathing, seen as the fogging of a mirror held in front of the mouth). If human tissue does not receive a supply of oxygen via the blood stream, it will soon cease to function, and after more time, it will irreversibly lose the ability to function. Therefore, if the heartbeat was absent and the person was not breathing, it could be assumed that the rest of the tissue in the body would soon be irreversibly lost. Since failure of the heart or the act of breathing resulted in the irreversible loss of the functions of the entire body, in the premodern age it was not necessary to consider which organs and tissue were needed in order for the entire collection to be considered a human being (a point I will return to later).
In the 1950’s mechanical ventilators came into common usage. These machines pumped air into the lungs. Even if the brain did not signal the lung muscles (diaphragm) to move, the machine blew air in and out of the lungs and the body could get oxygen to the tissues. This created for the first time the possibility that the brain could cease to function, but the rest of the body could continue to function. (The heart has its own internal pacemaker, so even without the brain or any other outside influence it will continue to beat and pump blood as long as the heart muscle receives a supply of blood and oxygen). A short time later, bypass pumps and heart transplants became a reality, and a few decades later artificial hearts. With these developments, the person’s own heart was no longer necessary for circulation in the body. In fact, a machine can supply circulation to any piece of tissue that had arteries and veins.
The first reports of what was to become ‘brain death’ were in the late 1950’s. Doctors observed that some patients who were attached to the ventilators had no observable brain function and did not breathe on their own (they were totally dependent on the ventilator). CT and MRI had not been invented, and the studies available at that time were EEG and angiography. EEG consists of placing electrodes on the skull and measuring the electrical function of the brain. It does not pick up the function of each cell, just when enough are working together for the activity to be measurable through the skull. Angiography consists of injecting a dye that shows up on x-rays into an artery (either in the groin or the neck) and then taking x-rays of the skull to see which arteries fill with the dye. They observed that many of the patients without observable neurological function did not have electrical activity on EEG and the arteries inside the skull did not fill with dye. At autopsy the brains showed a typical pattern of damage, which at first was attributed to the ventilator, so it was called ‘respirator brain.’ Only later was it realized that the damage was wrought by a lack of blood flow to the brain.
In 1968, a group of physicians met in Boston, analyzed all this type of data, discussed it, and produced a list of steps known as the Harvard criteria. The question the criteria were designed to answer was this: Under what circumstances can we have certainty that a person has irreversibly lost observable brain function? The list includes 1. There has to be evidence of major damage to the brain, 2. It is necessary to rule out any other conditions that can cause a temporary loss of brain function such as certain medications, low temperature, and low blood pressure, 3. A list of reflexes that are present in a functioning brain have to be totally absent, 4. There can be no brain mediated response to stimulation. They also recommended that if available, an EEG should be done, and the EEG, if done, should show an absence of activity.
The stated basis for declaring death based on these criteria was: “An organ, brain or other, that no longer functions and has no possibility of functioning again, is for all practical purposes dead.” It should be clear that the goal of the criteria was to enable a prediction of whether any function at all would return (the goal was not to predict who would have absent blood flow or who would not have EEG function). A number of similar criteria were published by various groups and gradually the idea of ‘brain death’, or more accurately, death based on the cessation of neurological function was accepted. In 1981 the Uniform Determination of Death Act, which became the basis for most state laws defining death, codified that death could be determined either with the cessation of circulation and respiration, or by the irreversible cessation of function of the entire brain
Over the years many papers have been published describing findings in patients who have been declared brain dead. Since there never was a single uniform set of criteria for death, it is not surprising that a number of different criteria have been used. It is important to keep in mind that death, whether it is termed brain death, circulatory death, or any other sort of death, is actually a label that is applied to a person. To quote Rabbi/Professor Michael Broyde, death “from a legal point of view, is when society no longer accords a person the rights associated with being a human being.” In 1995 the American Academy of Neurology published standards that are recognized by many as the reference standard. These standards were reaffirmed in an article published in June of this year. Despite that, there still is some variability in standards, and that will be addressed. After reviewing the literature, this most recent article affirmed that not a single case of recovery of function had been reported when appropriate criteria were used.
New technologies, as they became available, were applied to study brain dead patients. These can be divided into categories: studies that provide images of the brain such as CT or MRI; blood flow studies such as different types of nuclear flow studies, transcranial Doppler ultrasound, and PET scanning; and biochemical data such as measuring the levels of oxygen, carbon dioxide, glucose and other chemicals in the brain. In addition, measurements of possible function, such as the brainstem evoked potentials and other electrical tests have been used and tested.
II. Blood and Oxygen Flow
Blood flow is vitally important to function, as well as a consideration in the Halachic realm, and it is important to understand more about it. The skull needs to be viewed as a box with rigid sides and it contains only a fixed amount of space. It cannot expand. The skull normally contains the brain, blood vessels, and cerebrospinal fluid (CSF). Normally there is plenty of space inside the skull for the contents. However, blood clots, tumors, and abscesses will take up space. In addition, when the brain is injured, it swells. As more space is occupied by swelling or blood clots, the pressure inside the skull rises. The blood flowing into the skull is propelled by the pumping pulsations of the heart- blood pressure. The rise in pressure in the skull results in resistance to the forward flow of blood into the skull, resulting in less blood flow. Less blood flow results in more brain damage, which results in more swelling, and a cycle becomes established until the pressure inside the skull is equal to the blood pressure trying to force blood into the skull. At this point, theoretically, blood flow to the brain ceases.
The reality is a bit more complex. The testing for blood flow does not measure each red blood cell, so no matter what the method, even if no blood flow is seen on the study, theoretically there can be some flow below what can be observed. In an experiment done in cats, even when a standard study shows no blood flow, a very small amount of blood flow is seen on the microscopic level. But, the amount of flow is not enough to allow the surrounding brain to function. The electrical measurements from the surrounding brain, despite the small amount of flow, gradually disappears.
Living cells, including those in the brain, require oxygen and fuel (glucose). The cells use the glucose and oxygen and produce carbon dioxide as a waste product. One of the ways the cells use the fuel is in forming a compound called ATP. Biochemical analysis of patients who have fulfilled criteria for brain death reveal:
1. Absent brain tissue oxygen levels (oxygen being necessary for the cells in the brain to survive)
2. Zero or near zero brain tissue glucose levels (glucose is the fuel used by the cells, no fuel means that the cell cannot survive)
3. No oxygen utilization and no carbon dioxide production (functioning cells use oxygen and produce carbon dioxide. The absence of this process indicates that function has ceased as best as can be determined)
4. Absent ATP signal in a small study (ATP being essential for energy utilization)
There is much more data showing that all measured biochemical activity in the brain dead brain is markedly abnormal.
Another interesting study measured the amount of energy used by a patient. Brain dead patients use approx. 25% less energy than expected, corresponding to the fact that the brain receives approximately 20% of the blood flow. In other words, the brain in the patient who was brain dead did not use any energy. In fact, in patients who started off with some function and some blood flow, the amount of energy used by the body decreased as the measured blood flow to the brain decreased. It reached the 25% below normal level when the studies showed absent blood flow to the brain.
The measurements of the oxygen levels reveal an important piece of data. A number of patients, both with brain function and without were monitored. The level of oxygen in those who were brain dead was zero. In the patients who had some function and were not brain dead, a few had oxygen levels that reached zero, but they climbed back up in less than half an hour. Any patient who had oxygen levels of zero for more than half an hour never regained any function and was brain dead. If the levels stayed at zero for less than half an hour, there was the possibility of recovery. This shows that the process of irreversibly losing brain function requires more than a few moments.
The blood flow and oxygen data reveal that the process of losing function and of the reversible becoming irreversible takes some time. When circulation is absent in the entire body, it is assumed that irreversible cessation of function has occurred after 5-10 minutes. With the lack of blood flow to the brain as seen on testing, it appears that the process takes longer.
III. Hypothalamic Activity
One final consideration prior to proceeding to the next section is the issue of hypothalamic function. The brain interacts with the rest of the body (and the world) in one of two ways. The usual way is by transmitting impulses via nerves (also termed synaptic transmission because it travels from one nerve to the next over a small gap called a synapse.) This is how the brain sends signals down the spinal cord to the body, and how it sends signals to the nerves that exit the brainstem (these are termed cranial nerves). The hypothalamus is an area in the brain that connects to the pituitary gland. The part of the pituitary gland connected to the hypothalamus secretes chemicals (hormones) into the blood. One chemical (among others) controls how the kidneys control urine output, among other functions. Some patients fulfilling the criteria for brain death suffer from lack of this hormone, while others still have normal or relatively normal function of this hormone.
The anatomic explanation for this possible function of the hypothalamus lies in the way blood flows to the brain and surrounding structures. There are arteries that travel into the skull but not usually to the brain (external carotid arteries. The arteries that supply blood to the brain are the internal carotid arteries and the vertebral arteries), and since these arteries travel in the structurally more solid linings of the brain (dura) they may be protected from the increased pressure in the skull. Branches of the external carotid artery can supply blood to the pituitary gland. In addition, the first branches of the internal carotid arteries once they enter the skull travel to the hypothalamus and the pituitary gland. Therefore, if there is even a small amount of forward travel of the blood (when the heart pumps the blood surges forwards, when it relaxes, the blood goes back to its place, a finding described as ‘to and fro flow’) it could reach just the pituitary and the hypothalamus.
There are a number of ways that the possible presence of pituitary gland function does not have to hinder the concept of being ‘brain dead’. This function is one of secretion of hormones, something that many glands perform, among them the thyroid, adrenal, etc. It is not an output that uses the brain’s unique attribute, which is synaptic transmission. Therefore, if secretion of hormones is a function that is going to be used as a criterion for life, it is necessary to discuss if secretion of hormones by other glands also qualifies as life. Secondly, from a halachic point of view, this is not a function that is visible to the eye by examination of the body. It is a function that is noticeable only by measuring the chemical content of the urine. In addition, possible function in the hypothalamus is NOT an indicator that other parts of the brain could be functioning, since, if part of the hypothalamus is functioning, this function is a result of the particular blood flow that is unique to the hypothalamus. Finally, if a set of halachic criteria mandate that in order to be declared brain dead there needs to be an absence of hypothalamic function, testing can be done for this function, and a significant number of patients will be found to have absent hypothalamic function.
There is much more data that has been published, and I refer the interested reader to the summary available here: link. I must add that this summary was sent to Rabbi Bush in 2008 and that Rabbi Student has in his possession the email documentation.
IV. Defining Death
In summary, modern medicine can identify a pool of patients who have the following characteristics:
- No observable neurological function on repeated exams
- Apnea (no spontaneous breathing)
- No blood flow to the brain as determined by a variety of examinations
- When criteria 1 and 2 are fulfilled, there has never been any return of function
- The brain of the patients will show biochemical changes consistent with no function (as discussed above)
- It can be demonstrated that the brain is not using any energy
- The patient probably will not have any function demonstrable on EEG, BAER or other such testing, and these tests can be done if necessary to confirm (those that do have function can be eliminated from the pool if deemed necessary)
- Testing can be done to eliminate from the pool patients who have hypothalamic function if it is deemed necessary to eliminate those.
And so the question is: Are these patients considered dead by Halacha? According to the criteria of the Chief Rabbinate, the answer is yes. Because this set of criteria focuses on the cessation of brain stem function, the possible presence of some hypothalamic activity is not relevant, and minimal activity on EEG, if present, is not relevant either.
Applying the concept of physiological decapitation is a little more complex. The testing for blood flow reveals no flow, although there can be some minimal flow that is below the sensitivity of the study. If present, it can only be observed by drilling a hole in the skull and implanting a laser Doppler probe. However, the amount of blood flow, if present, is not adequate to sustain the function of the brain. This blood flow can be termed inadequate flow, which we will define as blood flow that is not adequate to sustain the function of the tissue to which it flows. As noted above, tissue requires oxygen and glucose. If the blood flow is not adequate to supply oxygen and glucose, the tissue ceases to function.
The ‘traditional’ approach to defining death is with the absence of circulation. However, those who advocate this approach actually need to define what they mean by circulation. Is circulating water adequate for the presence of life? If the blood flow is infinitesimally small, but present (perhaps using a pump, rather than a heart made of tissue) is the person still alive? Is there a minimum pressure, an amount of oxygen, an amount of glucose that needs to be present in the circulation in order for it to be considered present by Halacha? After consideration of these questions it should be clear that while the idea of adequate flow seems to be a new concept in the discussion of blood flow to the brain, in reality it has been an unstated assumption all along when circulation has been used as a criterion for life and death. Essentially the word circulation has been assumed to mean adequate circulation. If that is not the case, then a body attached to a pump that is pushing water through the body needs to be considered as an alive human being.
The other way to approach physiological decapitation is to address not the actual blood flow, but the outcome. Decapitation results in the cessation of neurological function. The group of patients described above, if they have no hypothalamic function on testing and a flat EEG, do not have any observable or measurable neurological function. The lack of function then would be the equivalent of decapitation and the person could be considered dead. If that is accepted, the next step would be to decide of the EEG testing or the hypothalamic testing was actually necessary. That decision would hinge on whether Halacha recognizes any of those findings as signs of life.
V. RCA Document
How does the RCA document address the situation described above? One might expect that a paper entitled “Halachic Issues in the Determination of Death and in Organ Transplantation, Including an Evaluation of the Neurological “Brain Death’ Standard” would address this topic in a substantial way. It unfortunately does not. The medical section of this paper consists only of a list of reasons to oppose the neurological criteria of death. If the title had been “A list of reasons to oppose ‘brain death’” then the contents would have fit the title. But the title and introduction do not give the reader any inkling that the paper will present the data supporting only one side of the argument.
Part of the subheading states “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.” Furthermore, the introductory paragraphs tell us that a study such as this must be ‘based on respect for and reliance upon medical knowledge, demonstrated scientific truth and the role of careful clinical measurements and observation.” And finally, that this was “an unfettered search for the truth.” I will demonstrate that the medical section of the RCA paper is not an unfettered presentation of the truth. Not only does it present only the facts supporting just one side of the debate, but some are not factually correct, and some that are correct are presented in a way that misleads the reader to inaccurate conclusions. A close reading of the presentation of the medical information reveals that there is a description of the physiology which is obviously useful. However, the discussion that follows features only problems with the neurological criteria. The few statements of support are followed with refutations, while the statements opposed to neurological criteria remain unchallenged.
The RCA paper does not contain:
- Any reference to the biochemical data that describe the chemical environment in the brain with no blood flow.
- Any mention of the data showing that the brain after brain death does not participate in the use of energy, nor information from another study discussing the temperature differences between a live brain and a brain dead brain.
- Any reference to the studies showing that no patient, once declared dead by brain death criteria, has ever regained function or breathing.
- While hypothalamic function is discussed in the RCA paper, the possible reasons that it may not jettison the concept or declaration of brain death are not discussed
The RCA paper quotes a number of sections verbatim from the White Paper developed by the President’s Council on Bioethics in 2008. However, the RCA paper does not quote the parts that defend brain death. For example, the first paragraph of Section D on page 16 represents the end of a lengthy quote from the White paper. The RCA paper does not include THE VERY NEXT WORDS of the White Paper, which begin a defense of the neurological criteria for death. Also left out is a key paragraph from page 45 of the White Paper:
Alongside these challenging findings, however, are facts that confirm the diagnostic and pathophysiological distinctiveness of total brain failure. Patients with this degree of injury are, indeed, singled out by the battery of tests (bedside and laboratory) first outlined and recommended by the Harvard committee in 1968. Moreover, no patient diagnosed with “total brain failure” has ever recovered the capacity to breathe spontaneously or shown any sign of consciousness—including the minimal and ambiguous signs routinely displayed by patients who emerge into the vegetative state.
VI. Other Omissions
On Page 19 the RCA paper discusses the “existence of organized activities in the bodies of ‘brain dead’ patients”. The guidelines published in 1981 stated that one of the underlying philosophical bases for accepting brain death was that the death of the brain signified the loss of ‘integrative’ function of the brain. In other words, the brain was seen as the master controller of the body and that loss of brain function should result in failure of the rest of the body soon thereafter. Therefore, the ability to support the body of a brain dead patient over a long period of time would be inconsistent with this definition. Indeed, an analysis of reports of ‘brain dead’ patients found 175 who had ‘survived’ over a week after being declared ‘brain dead,’ including one for a period of years. However, a closer evaluation showed that the criteria for the declaration were either flawed or absent in most if not all of the reports. Despite the flawed criteria and the long support of the body, none of the patients regained any neurological function. A recent study of over 1000 ‘brain dead’ patients revealed that most of the bodies could not be supported for more than a week, but some could be supported for a longer period of time, up to 60 days. Long term survival of the body after brain death should not be surprising. The ventilator can supply lung function indefinitely. The heart, as long as it is supplied with the proper oxygen, fuel and nutrients, will beat on its own with its internal pacemaker, even if it is removed from the body. Hormones can be replaced. In most ‘brain dead’ patients, the blood pressure drops and cannot be raised back to normal over the long term, even with medication. However, advances in blood pressure support, hormone replacement, and other measures have combined to allow for longer term somatic support.
While the RCA paper points out the long term survival and possible ability to gestate a fetus, it neglected to mention the other facts mentioned here, especially the fact that even with long term somatic survival, there never was any change in neurological function.
Page 22 of the paper features a discussion of the pathology of the brains of brain dead patients. The paper quotes a well known article (Wijdicks 2008). The article establishes that when the brains of those declared brain dead are examined with routine staining methods, not every cell is dead, and indeed many areas do not appear significantly abnormal. However, it does not reference the editorial/commentary that appeared in the same journal. The commentary gives a number of possible explanations for the findings. One possible explanation is that the staining process does not adequately classify the cells as dead or alive. Being classified as not-dead by pathological staining methods does not necessarily imply that a cell is capable of functioning. It is true that the neuropathology of brain dead patients does not conclusively reveal the death of every single brain cell, or even the majority in some cases. However, these pathological findings do not imply the possibility of return of function. No patient who has been declared brain dead by valid criteria has ever experienced a return of any neurological function, no matter what the final pathology revealed.
VII. Errors in Fact
On Page 18 of the paper it is stated: “the autonomic nervous system, hemodynamic response and stable blood pressure may all be maintained in the ‘brain dead’ patient.” The autonomic function comes from the spinal cord; in brain dead patients it has never been shown to come from the brain. I am not sure what is referred to as ‘hemodynamic response’. However, there have been reports of blood pressure changes with head bending and these have been shown to be autonomic (spinal) reflexes, and therefore are NOT signs of brain function. Stable blood pressure does not imply a functioning brain or hypothalamus. None of the functions mentioned prove the existence of any brain function, nor has there been any proof in the scientific literature that these functions are signs of brain function.
Page 18 “the hypothalamus continues to function after the diagnosis of ’brain death’, serving both neurological and endocrinal functions.” There is no proof that the hypothalamus is serving anything but endocrine function at the most. Some have used the presence of stable temperature and blood pressure to assume neurological output from the hypothalamus, but this is conjecture at best and certainly many other more logical explanations exist.
VIII. Inaccuracies and Imprecise Discussions
The article presents information that is not accurate in the context of modern technology and the article itself references the proof:
On Page 21 it states: “Radionuclide angiography…. Its disadvantage is that posterior fossa circulation is not evaluated.” However, a paper that the RCA document refers to in a different paragraph specifically states that “it is likely that SPECT [a particular type of imaging done with radioactive tracers- my explanation] has improved imaging characteristics over planar imaging and appears to be the only imaging method THAT CAN BE USED TO VISUALIZE THE BRAINSTEM CLEARLY [my capitalization. The brainstem is the part of the brain in the posterior fossa that previous techniques had difficulty visualizing.]”. Visualizing this area clearly was a possible source of error with older methods, but this is not a problem with the modern methods. In addition, different traces that came into use in the 80’s and 90’s were able to visualize the posterior circulation better than the older tracers. The paper only makes a statement regarding the problems with the older method, and does not note that these problems no longer exist with the newer method.
Since, as noted, there are a number of different sets of criteria for brain death, a discussion of these criteria can focus either on one specific set of criteria, or on all the sets as a group. If the discussion centers on all of the criteria as a group, then certain problems may pertain to one specific set of criteria, but not to others. It would be important and intellectually honest to acknowledge that certain objections do not apply to certain criteria. The question that actually needs to be answered is: “Does Halacha accept cessation of neurological function as death and if so, under what circumstances?” The RCA paper instead lists reasons why SOME patients who SOME consider dead by neurological criteria may not be dead by Halachic criteria.
This is the context in which the discussions of EEG function and blood flow need to be seen. The paper notes that some patients who have irreversibly lost brain function may still have EEG function or blood flow. The unsuspecting reader would come to the conclusion that this data represents a serious challenge to the concept of brain death. This is not the case. Brain death criteria were designed to identify those who had irreversibly lost observable brain function. They were not designed to identify those without blood flow or EEG. If lack of blood flow or EEG is important to a certain set of criteria, those tests can certainly be added. But the fact that the criteria fail to predict those without EEG function or blood flow cannot be seen as a fallacy in the concept of ‘brain death.’
Similarly the paper notes that frequently (it quotes 1% based on a personal communication) brain death is declared based only on clinical exams, and that confirmatory testing is not done. Again, this does not impugn the concept of brain death. Certainly if halachic criteria mandate confirmatory testing, it would be performed. In addition, the paper fails to note that, for example, the criteria promulgated by the Chief Rabbinate do indeed mandate confirmatory testing. Therefore this objection does not apply to the criteria of the Chief Rabbinate. The unsophisticated reader would have no way of knowing this. The way the paper is written, all sets of criteria are seen as the legitimate targets of all the criticisms.
Pages 20-21 contain statements that the criteria for neurological determination of death vary between institutions. This is a valid issue in implementation, but has no bearing on whether Halacha recognizes someone who fulfills neurological criteria as dead. It does point out the utility in establishing exact guidelines that would correspond with the mandates of Halacha. As a side note, much of the variability is not germane. For example, it is noted that 11 different temperature standards were utilized to determine if the patient’s low temperature contributed to the lack of observable brain function. The threshold for what is considered a low temperature would be a concern if the standard did not rule out the contribution of hypothermia to lack of brain function. As long as all of them mandated that the patient’s temperature was close enough to normal (high enough) so that low temperature (hypothermia) was not a factor, it doesn’t matter if the threshold is set above that or not. For example, the lowest acceptable temperature in any criteria is 90 degrees F. The fact that others set the bar higher is only a problem if it is demonstrated that a body temperature of 90 degrees F can mimic the clinical picture of brain death. Furthermore, the Va’ad could certainly produce criteria of his own to make sure they were halachically acceptable. I would also note that criteria for declaration of death based on circulation criteria are similarly vague or non existent. How long does one wait after the heart has stopped beating to declare a person dead?
Page 21 contains the statement “These tests (blood flow tests)…are considered by the medical community as appropriate blood flow examinations, but this is not to say that they necessarily have meaning in Halacha.” The paper produces no proof for this statement, and does not discuss it further, leaving it as an unsubstantiated declaration. Certainly a statement as powerful as this should have some justification.
Page 20 contains a discussion of other conditions that result in cessation of respiration. This is not directly relevant to discussions of brain death, but some may see it as a problem for those who give primacy to the function of respiration. As best as I recall, the RCA paper does not produce a balanced discussion of this in the Halachic section, so I would refer the reader to the article by Rabbi Yosef Carmel et al who address this issue and show why it is not halachically relevant in answer 86 from Shut Bemareh Habazak vol 7.
There is much more that can be written, but I will close this section with the case of Zack Dunlap, which the paper mentions on page 22. This case is irrelevant because, as even Wikipedia has accurately reported, “This is clearly a case of negligent misdiagnosis.”
The issue of whether criteria are followed appropriately in declaring someone dead is a very valid concern for everyone, especially those who support the concept of brain death. On the other hand, it is not germane to whether Halacha recognizes neurological criteria for death. If this is a problem with real halachic import, the paper should have followed with a discussion of the halachic aspects of medical error. The paper also engages in a bit of nonfactual hyperbole by stating that this case “casts a giant shadow over this entire discussion.” The reality is that the popular media contains a few reports like this, and they are indeed a warning that the criteria for declaration of death need to be taken seriously and applied with precision. The fact that none of the cases reported in the media have been seen in the peer reviewed medical literature indicates that there is a high probability that these are not ‘survivors of brain death,’ but patients who have been declared brain dead using inadequate or improperly applied criteria. To reiterate, no patient declared dead using appropriate criteria have ever regained any function.
The paper also does not include a discussion of steps that could be taken to make sure that halachically appropriate criteria for declaring ‘brain death’ would be followed with precision diligence. In 2008 I made a number of suggestions to the Va’ad in this regard, including an offer to set up a group of observant neurologists and neurosurgeons working in concert with RCA rabbinic authorities to step in and review any situation involving the possibility of a declaration of brain death to make sure that appropriate criteria and testing were done.
IX. What is a Human Being?
The topic under discussion is the determination of death of a human being. The RCA paper devotes many pages to the analysis of death but ignores the definition of a human being. As mentioned at the very beginning, prior to the 1950’s it was not necessary to decide what part of the body or what particular function defined the body of a human being. However, when organs can be transplanted and circulation can be provided to any piece of tissue with intact arteries, it is necessary to identify which parts and functions need to be present in order for the entire collection to qualify as a human body.
If circulation is the sole criterion for the distinction between life and death, then any piece of human tissue with circulation needs to be considered a live human being. Circulation pumps can be attached to any tissue with arteries and veins. Therefore, any piece of tissue can have circulation. In addition, since the circulation pump can be attached to a body at any time, in the present age circulation is never irreversibly lost. Hours after a person has lost his pulse and hasn’t been breathing a pump can be attached and that body will have circulation. And, if circulation is the only criterion for life, then that body has to be considered alive. And, by the way, it will live as long as the pump provides circulation, which could be forever.
The only way to avoid these scenarios is to acknowledge that there is more to life than circulation, and in fact circulation has meaning when it is providing support for a particular tissue. And, if that particular tissue has irreversibly ceased to function, the circulation is meaningless. If one examines the way Halacha is applied in the areas of organ transplantation or loss of parts of the body, every body part except the brain can be lost, and the body will still be considered a human body, and that person will still be that particular person.
One can also consider a person who has lost all circulation for an extended period of time, and would be considered dead by standard circulation criteria. It should be kept in mind that the circulation criteria generally state that a person is dead if circulation has ceased irreversibly. A pump can be attached to that body and now blood is coursing through the arteries of the body. The person still might not be considered alive because even though all the anatomic parts are present, the function of those parts has irreversibly ceased. The only logical conclusion from these considerations is that circulation is equivalent to life only when it is supporting a brain that is functioning, or has the potential to function. The corollary is that when the brain has irreversibly ceased to function, circulation is irrelevant.
The RCA paper does note that some poskim would consider as death the situation where every cell in the brain has died, or if frank necrosis has occurred. This position would then logically also have to maintain that as long as one cell is alive, the person is alive. What they may not realize is that live human brain cells can be found in the human brain up to 8 hours after circulation has ceased. In other words, long after a person is considered dead by circulation criteria, there are still live brain cells. These cells can be actually be kept alive in cell culture up to 78 days.
Defining death by the irreversible loss of circulation was obvious to all up until 60 years ago. In the present era the loss of circulation is never irreversible, since a pump or artificial heart can be attached. And, even if we apply the positions of the poskim in the previous paragraph, brain cells are still alive for at least 8 hours after circulation has ceased. Therefore, the obvious question is: If one still holds by a version of the circulation definition, on what basis is death being declared? It cannot be the irreversible loss of circulation, and if it is less than 8 hours after cessation of circulation it is not on the basis of the death of every cell in the brain.
X. Closing Thoughts
I understand that this paper will be read and subject to critique by others, perhaps members of the Va’ad Halacha. I welcome the critique and the comments. I would ask (or perhaps challengeJ) them to address the following questions (and in return I commit to answering any questions they may want to present to me):
- Please define what tissue and function need to be present for Halacha to recognize a collection of tissue as a human being. For example, is an arm enough to be a human being? A heart, a kidney? Does it have to function? How much function needs to be present?
- Please give the Halachic definition of death. A person is dead when______________
- Is the only Halachic consideration circulation?
- If it is only circulation, please explain why attaching a pump to a body that has been pulseless for over an hour does not restore life. Also, please explain, when organs have been moved from one person to another, how we determine who is the donor and who is the recipient? Prior to the transfer there is circulation in both bodies, and after the transfer parts of both bodies are experiencing circulation.
- If there are other criteria for life and death, please explain what they are in practical terms so that they can be applied in practical situations. For example, Rabbi Bleich notes that a body is alive as long as there are ‘vital forces’ present, but does not explain what those ‘vital forces’ are and where they need to be found in order for life to be present. Precise details are needed if these concepts are to be used in real life.
- The RCA document repeats with approval (page 12) the statement that there really is only one definition of death. If one accepts that lack of circulation is death, and also accepts that brain necrosis (or death of every cell) is also death, doesn’t this add up to two definitions of death?
- Please describe how you would determine death in the following person, and on what basis that determination is made: A patient with an artificial heart (he no longer has a heart made of tissue, it is a mechanical pump and it has to be attached to a power source) falls and has a spinal cord injury, so that the impulses to breath no longer go from the brain to the lungs. He is totally dependent on the ventilator. He thinks normally, can mouth words, daven, etc, but is totally paralyzed from the waist down. One Shabbat morning you find him, and the heart machine is unplugged and the ventilator is unplugged. He will never have return of circulation unless you plug the heart machine in. He will never have return of lung function unless you turn the ventilator on. The moment you plug the machines in he will have return of circulation. At the moment you see him, there is no pulse, no circulation and no breathing. If he is alive, you obviously have to plug the machines in. If he is dead, obviously you are forbidden to do so. For those who use neurological criteria, the following information is useful: If you find him moments after the machines were unplugged, he would be awake, mouthing words (probably ‘plug me in’). After 30-60 seconds he would be unconscious, after 5-10 minutes he would have massive irreversible brain damage and irreversible loss of function, after 8 hours all the cells in his brain might be dead. Necrosis would take longer. For those who maintain that Halacha does not recognize the neurological criteria for death, how do you decide when he is dead?
The Halachic discussion contains two basic positions(albeit with some variations on the theme): The line between life and death is defined by circulation, and the line between life and death is defined by neurological criteria. If I have been successful in demonstrating that using circulation is no longer logically coherent, the only position remaining is that death is defined by neurological criteria. Therefore the Halachic argument between circulation and neurological criteria is over, and the discussion of necessity needs to shift to the particulars of the neurological criteria. Either the existing neurologically based definitions of death can be accepted(for example the Chief Rabbinate or the physiological decapitation model), or further possibilities can be explored.
I again want to thank Rav Gil for hosting my comments. I will try to respond to the comment section. I can also be reached at noamstadlan-at-gmail-dot-com for more in depth questions.
 The individual cells that make up the tissue in the body require energy to maintain the wall (membrane) around them. If deprived of energy for enough time, the cell membrane deteriorates and the cell irreversibly ceases to function.
 A response to stimulation or the presence of a reflex means that there is an intact loop of neurons. Consider the knee reflex. When the reflex hammer hits the tendon in the knee, a sensory nerve travels to the spinal cord, sends a message to another nerve, and then the message goes out to the muscle which makes the leg kick out. This particular reflex does not need a brain; it only goes through the spinal cord. Other reflexes travel through the brain (primarily the brainstem), and these brain mediated reflexes have to be absent in someone who is a candidate to be declared brain dead. Spine related reflexes can be present in those who are brain dead.
 The study was a transcranial Doppler. This is where ultrasound waves are sent into the brain, bounce off of arteries, and the return wave is measured. Flowing blood will change the frequency of the wave, so a measurement of the change in frequency of the ultrasound wave can be translated into the speed of the blood flowing in the artery (The Doppler effect is why the a train whistle or car horn seems to change tone as the vehicle travels towards or away from you)
 The issue of quality of circulation will be discussed later.
 This is done either with microdialysis or simply measuring the concentration of oxygen or carbon dioxide in the blood. Microdialysis consists of putting a thin tube in the brain, instilling a little fluid, letting that fluid equilibrate with the tissue around it, then removing it and chemically analyzing the fluid.
 This point actually became relevant in practice. One of the leading researchers in brain death recently published an article advocating for declaring brain death based on only one exam. (Recall that the original criteria mandated two exams, and even the 1995 criteria recommended a second exam). There was an article I just became aware of that was published online last month that claims to document 2 cases of patients who started breathing after being declared dead (Can. J. Anaesth. 2010 Oct; 57(10):927-35). I have seen the abstract but not the actual paper. However, they were declared dead based on only one examination. A second examination was not done and a blood flow study was not done. When the blood flow study was done, they had some blood flow. This report does not cast doubt on the concept of brain death. It does illustrate however that 2 exams and a confirmatory study are necessary in order to be sure that not only is function absent, but that it is irreversible.
The criteria for brain death started with 2 exams, and then the period between the exams gradually lessened, until recommendations began to appear advocating for only 1 exam. This is not unexpected as there is a desire to identify as precisely as possible the parameters under which brain death occurs. Obviously, if this paper is accurate, the parameters need to go back to mandating 2 exams and a confirmatory study. I would emphasize that this paper does not invalidate the concept of brain death, but illustrates the process of defining the parameters. Erring on the side of more time and a confirmatory study would seem prudent at this juncture. A similar process occurred with determining death by circulation, with the now famous edicts mandating that a body be observed for 3 days prior to burial. Those who would want to use this data to impugn the concept of brain death would need to address the 38 cases of reported recovery after the determination of death by circulation criteria (J R Soc Med 2007; 100:552-557).
 There is another part of the pituitary gland which controls other functions.
 Similarly the other functions of the pituitary are only measureable by testing the blood for hormone levels. They are not functions that are observable to the naked eye.
 There are patients who have no observable brain function who still have some blood flow. The mechanism for this is discussed in the 2008 paper. Whether these patients should be considered dead according to Halacha depends on the criteria being used and the theory behind the criteria. For those that focus on function, persistence of flow does not present any problem.
 Measureable here means by methods from outside the skull. Obviously it is possible to insert probes into the brain and try to determine if any cell is functioning. Since there are billions of cells in the brain, this would be quite an endeavor. Ultimately it is necessary to decide if a single cell or a small group of cells in the brain deserve the label of human life. I address this in a number of other areas and the consequences of this approach in the Meorot paper.
 The paper does give a reason for the one sided halachic analysis (yes, I realize the paper states specifically it is not being one sided, but the reality is that the analysis is one sided. It may be one sided for a valid reason, but that doesn’t change the fact that it is one sided), but specifically this statement addresses the halachic discussion, implying that the medical data is not similarly biased. I would note that the stated basis for the one sided halachic analysis is quite weak. They need to explain halachically exactly what constitutes a Hiddush, why something accepted for over 25 years by the chief rabbinate and hundreds of rabbis constitutes a Hiddush, and if there is a basis in Halacha that mandates that a Hiddush be treated in the manner that they proceed to do. The claim that there is new medical data, while it appears in other sources, is not accurate. Concerns regarding hypothalamic function, somatic survival and pathology were present in the medical literature prior to the 1991 RCA decisions. Indeed, some of them go back to the 70’s and early 80’s, which is prior to the publication date of Rav Moshe Feinstein’s final teshuvot on the topic. It is true that articles in the medical/philosophical literature have placed more emphasis on these findings, but to state that the data is new is factually incorrect. These references had been supplied to the Va’ad and are available on request.
 Similarly, the ability of a brain dead body to gestate a fetus would be inconsistent with this underlying philosophical concept.
 Alan D. Shewmon, “Chronic ‘brain death’: Meta-analysis and conceptual consequences,” Neurology 51:6 (1998) 1538-1545.
 Eelco F M Wijdicks, James L. Bernat, “Chronic ‘brain death’: meta-analysis and conceptual consequences- correspondence,” Neurology 53:6 (1999) 1369-70.
 Besher At-Attar, Faissal Shaheen et al, “Implications of ICU Stay after Brain Death: The Saudi Experience,” Experimental and Clinical Transplantation, 4:2 (2006). The study contains some of the data, and the rest was unpublished but communicated via email by the authors of the paper to this author.
 I understand that a case can be made that the survival of the body after brain death very rarely is more than 3 days. I have not personally analyzed the data and so cannot make a statement regarding that. Since I haven’t appreciated how it would be germane to the debate I have not examined the topic in more detail. However my data here should not be seen as a refutation of that statement until all the criteria can be examined more fully.
 Gustavo Saposnik, David Munoz, “Dissecting Brain Death: Time for a new look” Neurology 2008; 70:1230-31.
 It is my impression that these claims have been made in other papers/contexts, so I am not accusing the Va’ad of making up the claims, but at best it is the recapitulation of the mistakes of others, something which I think could have been avoided.
 Zuckier, Lionel and Johanna Kolano, “Radionuclide Studies in the Determination of Brain Death: Criteria, Concepts, and Controversies” Seminars in Nuclear Medicine. 38:268.
 The study should have taken the ‘best case scenario” for a declaration of death and determine if met halachic standards.
 These facts would be pertinent if appropriate specific brain death declaration required absent blood flow or absent EEG and a particular set of criteria did not test for them. However, the RCA paper does not discuss the specifics of any set of criteria. The data it reports on EEG may be inaccurate for at least 2 reasons. I have not had a chance to read it ‘inside’, but he quotes as a source a pediatric textbook, and the situation with children is somewhat different than adults, and data from children cannot be generalized to adults. Secondly, as pointed out by Christopher Pallis back in the 1980’s, many patients who have no function who start off having some activity on EEG frequently lose that EEG activity. So the presence or absence of EEG depends somewhat on what time in the process the EEG is done.
 Some of the rationales there may not be totally medically defensible, but enough of them are.
 To say that Halacha does not recognize a neurological criteria for death because of concerns about those implementing them is similar to stating that strawberries are traif because of concerns that people will not check them adequately.
 As for example, Rabbi Avraham Steinberg does. See Encyclopedia of Jewish Medical Ethics, volume II, page 705, note 71. Feldheim publishers, 2003.
 I would add that all the physicians I have spoken to (admittedly not a scientific survey) would be pleased beyond belief to have assistance from someone who understood not only the complex medical situation but also the religious beliefs and mandates of the patient and family. Far from an unwelcome intrusion, this would be seen as a very useful resource in dealing with this difficult problem.
 I have discussed this topic in more detail from a somewhat different point of view in a paper recently published by Meorot available here: link (PDF).
 FASEB Journal, 2002; 16, 54-60.
 This issue is discussed in great detail in the Meorot article.