Death by Neurological Criteria

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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.[1] 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.[2] 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[3] 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.[4]

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[5] 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.[6]

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.[7] 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.[8] 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:

  1. No observable neurological function on repeated exams
  2. Apnea (no spontaneous breathing)
  3. No blood flow to the brain as determined by a variety of examinations[9]
  4. When criteria 1 and 2 are fulfilled, there has never been any return of function
  5. The brain of the patients will show biochemical changes consistent with no function (as discussed above)
  6. It can be demonstrated that the brain is not using any energy
  7. 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)
  8. 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[10] 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.[11]

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:

  1. Any reference to the biochemical data that describe the chemical environment in the brain with no blood flow.
  2. 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.
  3. Any reference to the studies showing that no patient, once declared dead by brain death criteria, has ever regained function or breathing.
  4. 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.[12] 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.[13] However, a closer evaluation showed that the criteria for the declaration were either flawed or absent[14] 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.[15] 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.[16]

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.[17] 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.[18]

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.]”.[19] 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.[20] 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.’[21]

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.[22]

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.[23] If this is a problem with real halachic import, the paper should have followed with a discussion of the halachic aspects of medical error.[24] 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.[25]

IX. What is a Human Being?

The topic under discussion is the determination of death of a human being.[26] 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.[27] These cells can be actually be kept alive in cell culture up to 78 days.[28]

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):

  1. 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?
  2. Please give the Halachic definition of death. A person is dead when______________
  3. Is the only Halachic consideration circulation?
  4. 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.
  5. 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.
  6. 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?
  7. 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.


[1] 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.
[2] 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.
[3] 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)
[4] The issue of quality of circulation will be discussed later.
[5] 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.
[6] 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).
[7] There is another part of the pituitary gland which controls other functions.
[8] 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.
[9] 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.
[10] 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.
[11] 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.
[12] Similarly, the ability of a brain dead body to gestate a fetus would be inconsistent with this underlying philosophical concept.
[13] Alan D. Shewmon, “Chronic ‘brain death’: Meta-analysis and conceptual consequences,” Neurology 51:6 (1998) 1538-1545.
[14] Eelco F M Wijdicks, James L. Bernat, “Chronic ‘brain death’: meta-analysis and conceptual consequences- correspondence,” Neurology 53:6 (1999) 1369-70.
[15] 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.
[16] 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.
[17] Gustavo Saposnik, David Munoz, “Dissecting Brain Death: Time for a new look” Neurology 2008; 70:1230-31.
[18] 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.
[19] Zuckier, Lionel and Johanna Kolano, “Radionuclide Studies in the Determination of Brain Death: Criteria, Concepts, and Controversies” Seminars in Nuclear Medicine. 38:268.
[20] The study should have taken the ‘best case scenario” for a declaration of death and determine if met halachic standards.
[21] 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.
[22] Some of the rationales there may not be totally medically defensible, but enough of them are.
[23] 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.
[24] As for example, Rabbi Avraham Steinberg does. See Encyclopedia of Jewish Medical Ethics, volume II, page 705, note 71. Feldheim publishers, 2003.
[25] 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.
[26] 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).
[27] FASEB Journal, 2002; 16, 54-60.
[28] This issue is discussed in great detail in the Meorot article.

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 of New Jersey, 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 and as Director of the Halacha Commission of the Rabbinical Alliance of America. He also serves on the Editorial Board of Jewish Action magazine and 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.

179 comments

  1. Glatt some questions

    A lot to digest here, but I think this line is telling:

    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.

    I think Rabbi Bush owes the Orthodox community an explanation as to why he chose not to include in the paper important data from a respected doctor like Dr. Stadlan, who has a particular expertise in brain death.

    Gil, has Rabbi Bush or someone on the committee agreed to respond to Dr. Stadlan?

    By the way, several strong letters were printed in The Jewish Week about the article that appeared a week ago:

    http://www.thejewishweek.com/editorial_opinion/letters/rca_and_brain_death

    http://www.thejewishweek.com/editorial_opinion/letters/unethical_stand

    http://www.thejewishweek.com/editorial_opinion/letters/inaccurate_report

    http://www.thejewishweek.com/editorial_opinion/letters/favors_minority_opinion

  2. Dr. Stadlan, thank you for this. As a resident physician and semikha student, I have often wondered whether opponents of the neurological criteria (in any form) ever truly understood what it was they were opposing. Having studied the matter closely with R’ Moshe Tendler, the halakhic definition of death, rightfully derived from current medical understanding, seemed clear to me. Shiurim that I have heard where a posek (or group of them) questioned neurological criteria were always lacking the medical detail you have supplied.

    It seems to me that those who oppose the neurological criteria by focusing on the ideas of brain cells still being “alive” and the ability, albeit via a very slow process, of intrinsic neuronal repair, do so with the somewhat fantastical thought that the brain will indeed heal itself over time, so long as there exists some miniscule amount of circulation. I believe this is borne out of the skepticism of science/medicine often shown by religious fundamentalists. While this skepticism is sometimes well-deserved, as we in the scientific/medical community are aware of the hubris that some of our colleagues exhibit, it does not represent our community at large – and is insulting and demeaning to those of us who have faith in the science of Man as well as the science of God. There may one day come a time when we, with God’s help, will discover a way to repair and revive the almost-dead brain, or perhaps even the dead brain. Unfortunately, the halakha in this matter cannot be as timeless as some would wish. There have been and will continue to be advances in our understanding of the science of life and death, and halakha will (hopefully) follow, of necessity.

    Finally, I think that your hypothetical Shabbat scenario toward the end of your post is important in a way that was perhaps unintended. It hints at the spectre of a future where it will be possible to maintain adequate circulation to/from the head alone. Can a “living head” be considered human without a body? Would this have implications for keeping a patient with multi-organ failure alive?

    Thank you again.

  3. This is an outstanding summary of the medical issues. The author deserves our thanks.

    Unfortunately, medical issues are not what is really going on here. The true issue is a power shift within the RCA from Rav Tendler to Rav Schachter. Rav Schachter’s growing strength has its repercussions for other issues too.

    Even back during my time in YU semikhah (c. 1990), Rav Schachter’s many passionately devoted students were beginning to change YU’s overall atmosphere, and it was already becoming ever harder to simply state that he was *not* one’s rav or posek (or even the gadol ha-dor). As an extraordinary Torah scholar and posek, Rav Schachter’s weakness is precisely in areas of broad hashkafic issues that include social realities and moral dilemnas, i.e. precisely in those areas where Rav Soloveitchik exhibited broad vision, tolerance, and a great deal of respect for personal autonomy (especially for his students in the field). This is precisely what is missing in the RCA’s current shift on brain-death.

  4. “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.”

    I think this is the key, and thus for the RCA (and other religious bodies) to pretend that there really is some other viable criterion for death is an utter abnegation of their communal responsibilities. Unless they can establish first a coherent medical view, it’s a waste of ink to argue about the halachah. Any good posek needs to know the facts first. Spending 100 pages arguing about who heard what from which posek 40 years ago doesn’t really help if there is only a single coherent and practicable position on death today.

  5. Rabbi Breitowitz writes (www.ou.org/publications/ja/5764/5764fall/ORGANDON.PD) that:
    “Rabbi Tendler asserts that one is obligated to donate organs to save lives even if the probable recipient will be a non-Jew, since all mankind is created in the image of God. However, given the
    fact that nivul hamet is an issur deOraita that can only be set aside for pikuach nefesh and that pikuach nefesh of a non-Jew does not authorize violations of Torah law, how could saving a non-Jew justify corpse desecration? A number of points might be suggested, none of which are conclusive: 1. If Jews don’t give to non- Jews, there is a possibility that non-Jews won’t give to Jews and future Jewish lives will thereby be endangered. See Steinberg, Entsiklopedyah, 31: 2. There is a possibility that the recipient will be Jewish and even if that possibility is unlikely, the laws
    of pikuach nefesh are not limited by the principles of rov (assuming majority status). See, e.g., Shulchan Aruch OH
    329:2:3. Removal of internal organs may not constitute nivul hamet on a Torah level because, at least in some cases, the external appearance of the body remains intact; 4. From the perspective of the donor and his family, the actual desecration of the corpse is being done by the transplant surgeon and his team. The donor has no way of knowing who the transplant surgeon is and under Jewish
    law, could presume that he will be non- Jewish, at least in the United States. A non-Jew does not have a prohibition of nivul hamet even towards a Jewish corpse. Accordingly, the only sin the family is committing is authorizing desecration, which may be a rabbinic prohibition (amira l’akum) that can yield for the pikuach nefesh of even a non-Jew. All of these rationales are questionable and need further analysis. It should be noted that under the Uniform Anatomical Gift Act a donor can limit his donation to a specific individual or even to an ethnic or religious group though the latter is frowned upon in the organ donation community.”

    Dr Stadlan – what do you make of this issue?

  6. I contributed to editing the paper, and though I speak only for myself, I am obviously quite familiar with the aims of the paper. I believe that Dr. Stadlan misreads these aims.

    The Vaad Halacha’s paper was not meant to be a comprehensive evaluation of the medical facts, not an expression of an original psak in this matter. In reviewing the issues, the Vaad Halacha discovered that (a) many of the rabbanim, including some of the poskim quoted in halachic debates regarding teh onset of death, have a weak grasp of the basic physiology of brain death. The medical section of the paper is meant to enlarge the medical vocabulary of the reader, so as to enable him to evaluate the halachic statements made in this field. No attempt was made to formulate a particular level of necrosis of the brain, for example, that would definitely coincide with teh onset of halakhic death lekhol hade’ot, because that falls outside the scope of the paper. But it is surely relevant to know enough about the physiology of death in order to read, for example, R’ Moshe Feinstein’s responsa.

    The Vaad Halacha also discovered (b) that the medical circumstances the major published teshuvot related to, are often misunderstood, resulting in misaplications of the teshuvot.

    Now onto editorializing.

    Editorial ideas of the President’s Council on Bioethics were not included, because they are irrelevant to halakha. Only insofar as the paper shows that the secular medical community harbors some doubts was editorial material of any interest, because it opens the reader’s mind to doubt and to reading without preconceptions.

    Ultimately, the paper does not reach any conclusion regarding what the onset of death is. That is not what the paper set out to do. Instead, the paper demonstrated that to date, there have been very few poskim who came to an independent conclusion permitting relying on brain stem death, who were also well aware of the medical issues. There is a lot of relying on what people think others said in this field, but as it turns out, a lot less critical reading of the literature.

    In short, it is entirely conceivable that some major poskim will now review the matter and a critical number of them may reach a conclusion favoring some kind of neurological standard of death. If they do, Dr. Stadlan’s questions will become pertinent. However, to date, very little useful support for relying on any neurological standard has been produced by major poskim.

    It also pays to remember that, while Dr. Stadlan challenges us to come up with some kind of neurological standard, it may not be warranted to pick up the gauntlet. The traditional definition of the onset of death is cardiopulmonary, with no regard to brain physiology. The only kind of brain activity that is relevant is perceptible brain activity (i.e. someone on a heart lung machine who is visibly alive). Otherwise, the cardio-pulmonary standard is the only one that matters. If the medical community wants to suggest another standard, that constitutes a change in the rules, and the burden of proof that halakha accepts these new rules, is on those who desire change. That is – in my opinion – what drives the paper.

    If Dr. Stadlan and others desire that a new standard be adopted, let him form a group of interested physicians, who will, in an unbiased manner, reach out and educate major poskim in the medical aspects, and see whether they can come to a conclusion in favor of a neurological standard. Let him also make sure that the education provided will be broad enough to deal with the issues the paper raises when reviewing the medical background of the halakhic literature.

  7. Jeremy Cohen: Do R J. David Bleich and R. Yitchok Breitowitz also lack breadth? The truth is that, at least in the US, R. Tendler is a da’as yachid. Notice that Dr. Stadlan did not deal with halakhah at all. He can talk from here to tomorrow about the medicine but until he engages with halakhic sources, he will make little impact. UNLESS his argument is that halakhah is scientifically wrong and we need to reject all sources. That seems like a significant argument that needs to be made directly.

  8. Arie folger- I have demonstrated that the medical section is completely one sided. You have not produced any justification for that.

    I am not establishing or calling for any new neurological standard. What is in place from the chief rabbinate is perfectly fine. What I have pointed out that you have not addressed is the logical inconsistencies that are inherent in the cardiopulmonary standard. If you are going to respond, please answer the questions I placed at the bottom and you will realize that if you hold a cardiopulmonary standard, you have no way of deciding when the patient in the example is dead.

    Moshe Cohn I have references to a head without a body in the meorot article. R azriel Rosenfeld addressed the issue in some of his articles in Tradition in the late 1960s.

  9. R. Gil. I have pointed out the logical problems with the cardiac standard. Either you have to claim that the halachic definition of death is different depending on the circumstances, show where I am wrong on the logic, or accept that the circulation definition actually always was meant to mean circulation that supported actual or potential brain function, and when that potential brain function is absent, the circulation has no halachic meaning.

    I have addressed the Halacha in this manner and neither you nor rav folger nor anyone else has refuted it.

  10. J. I am sorry, but would prefer to stay on topic. Please feel free to email me

  11. Thank’s to R’ Stadlan for a well fascinating piece. I think R’ Shabtai’s summary of issues – the definition of death (conceptual/philosophical) vs. the criteria of death (physiological/function) and test for death (how prove criteria are met) provide an excellent framework for the discussion.

    It’s my impression that when all is said and done the point R’ Staslan makes “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 ” is crucial. Thus it seems clear that chazal did not use terminology that has a one-to-one correspondence with what we can technically see/describe today and that would have real nafka mina’s. Now perhaps if we could ask Chazal they would tell us what they meant in our terms (i.e. the “they knew all science from a mesora” school) but I tend to think they did not think in those terms and thus R’ Shabtai’s questions in today’s world would require chazal/sanhedrin today to rethink the definition.

    On top of that, R’ Stadlan’s last set of questions and R’ Cohen’s comment above lead back to my earlier comment “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.

    I guess I’m confused as to when we take the “it’s the halachic process approach” and not worry so much about original intent and when we take the “don’t touch that dial approach” and converge to the “least risk”(TBD) approach. But I suppose that’s why I’m not a chacham of the mesorah.

    KT

  12. If Dr. Stadlan and others desire that a new standard be adopted, let him form a group of interested physicians, who will, in an unbiased manner, reach out and educate major poskim in the medical aspects, and see whether they can come to a conclusion in favor of a neurological standard.
    =============================
    I have tremendous respect for R’ Arie, the Rabbis who did the paper and the poskim mentioned. I hope that the above statement was not fully fleshed out because out of context it makes it sound like life and death decisions were being made by poskim who have not reached out to the finest minds/latest research available.
    KT

  13. David Shabtai

    I too wish to thank Dr. Stadlan for a most erudite presentation of some rather complex medical and physiological concepts. I hope that it helps many in understanding the medical facts upon which the Halakhah must rest.
    I would like to just explore one area – without taking any stand on the matter. Just to be very clear, I speak on behalf of nobody but myself and more importantly, I am not taking a position on what the Halakhah should be [not that my opinion should even matter].

    My question is the relevance of this information. I am not so much interested in why certain poskim hold various positions at this time, but just in identifying them:

    1. The Rabbanut claims that death occurs with the irreversible cessation of spontaneous respiration. All agree that this occurs in properly diagnosed brain death. No amount of medical information is going to change this.
    2. R. Schachter, R. Bleich, R. Elyashiv, etc. argue that vital motion, which certainly includes a heartbeat, must irreversibly cease for a person to be dead. All agree that this does not happen in brain death (i.e, the heart continues to beat). No amount of medical information is going to change this.
    3. R. Shlomo Zalman Auerbach required either the irreversible cessation of vital motion, or the death of each and every cell of the brain for a person to be dead. As noted, all agree that the first option does not occur. Dr. Stadlan readily admits that the latter 1) cannot be easily proven; 2) often may not exist. [Dr. Stadlan argues that this should not be the appropriate criteria, but that is not my current point. I am just trying to identify the opinions.]
    4. R. Moshe Feinstein’s opinion is understood in several ways. Those arguing that he supported brain death, argue that he either claimed that 1) the irreversible cessation of spontaneous respiration constitutes death [like the Rabbanut]; or 2) total brain liquefaction constitutes death (נרקב המוח לגמרי – ע’ אג”מ יו”ד ח”ג סי’ קלב). From a physiological perspective, all agree that the first certainly occurs and Dr. Stadlan claims [albeit implicitly perhaps] that the latter does not (i.e., brains from brain dead patients are not completely liquefied). The updated medical information has not changed these facts.

    5. R. Tendler has sometimes argued that death is defined by 1) the irreversible cessation of spontaneous respiration and sometimes 2) because of what he calls ‘physiological decapitation.’ Again, nobody argues that a brain dead patient has irreversibly lost the ability to breathe on his own. There is perhaps room to quibble about ‘physiological decapitation’ and the medical information may shed light on that topic. To my knowledge, he is alone is endorsing that opinion [which does not necessarily detract from its veracity].

    I’m curious to know if somebody can quote a posek (with a citation so that all of us can learn from it) other than R. Tendler who claims that the lack of brain function qualifies as death.

    [R. Feinstein is quite clear that lack of brain function does not determine death:
    שו”ת אגרות משה יורה דעה חלק ב סימן קמו
    אבל האמת ודאי שלא זה שפסק המוח לפעול הוא מיתה
    R. Shelomo Zalman felt similarly (I don’t have the source at the moment)]

    While not intending to take sides in the 5 way halakhic debate I noted earlier, other than for R. Tendler who has accepted brain death for quite some while, I am not sure that the medical data is going to influence halakhic pesak. While it is vitally important for a posek to understand the physiology in my opinion, in this case, I am curious if anybody knows of a posek or position that would be affected.

  14. R. Shabtai. The problem that you have not addressed is the the definition of ‘vital motion’. This needs to be defined with precision before it is used in applied Halacha. If vital motion is a criteria for life or death, please define exactly what it is and exactly where it needs to be found. Absent this precision, it has no practical value. Please see my meorot article for a detailed discussion of this

  15. “UNLESS his argument is that halakhah is scientifically wrong and we need to reject all sources. That seems like a significant argument that needs to be made directly.”

    Gil, I think that is precisely what Dr. Stadlan is doing, of course not phrased in the way you said. He claims quite clearly that there is NO other working definition of death which is robust and coherent and which doctors and rabbis can use, besides brain death.

    If you accept his medical arguments, then the halachic arguments don’t really matter since they are based on bad science and we need new halachic arguments. It becomes a little silly to keep quoting sources like Dr. Shabtai does when practically speaking there is no coherent way to implement a definition of death based on “vital motion”. So why bother quoting such a position? It does nothing to respond to Dr. Stadlan’s plea for halachic guidance for TODAY’s medical reality.

    (It is no disgrace to the talmidei chachamim who made these arguments based on the knowledge they had but that doesn’t exempt us from taking a fresh look based on what we know now.)

  16. I sincerely thank Dr Stadlan’s incredibly comprehensive comments on the RCA paper. I too was very disappointed by this paper, and there isn’t a lot to add to Dr. Stadlan’s analysis. However, one issue that he didn’t raise is the issue of the physiologic and scientific background to the sugyot which deal with this issue in the gemara. Dr. Eddie Reichman, in a great article

    http://www.hods.org/pdf/The%20Halachic%20Definition%20of.pdf

    explains in detail the origins of the gemara’s apparent understanding of cardiorespiratory death. I dealt with this in detail in my blog, rationalistmedicalhalacha.blogspot.com and I was very surprised that the RCA study didn’t even mention this entire issue, despite the fact that it has been published in numerous Journals, and written by a prominent physician, and Jewish medical ethicist.

  17. Dr. Stadlan commented:

    What I have pointed out that you have not addressed is the logical inconsistencies that are inherent in the cardiopulmonary standard. If you are going to respond, please answer the questions I placed at the bottom and you will realize that if you hold a cardiopulmonary standard, you have no way of deciding when the patient in the example is dead.

    You cannot ignore that there is a halakhic jurisprudence of death that has existed for centuries, without recourse to any modern scientific test. Now you desire that poskim reframe in neurological and related physiological terms the preexistent legally binding tests for the onset of death. Then you want the to use this new formulation in order to arrive a some kind of neurological test that would become a kind of halakhic brain death.

    The only problem is that there is no *legal* reason to change the existing jurisprudence. Perceived irreversible cardio-pulmonary arrest is what has been binding for centuries and more, and ostensibly needs no tweaking.

    [If anything, a reassessment of the cardio-pulmonary standard in account of new scientific developments can lead, as some poskim have argued, to a new, additional requirement, that after cardio-pulmonary death the brain be tested, too. Now I agree that after cardio-pulmonary death there is no meaningful brain activity for any meaningful period of time, so in reality, this is not a very useful requirement. But from a legal perspective, there is no reason to reformulate the existing test.]

    In short, terms like blood flow (after cessation of heartbeat), extent of necrosis of the brain, whether or not the brain consumes energy, and whether a certain physiological sign originates in the spine or the brain, are halakhically irrelevant unless one is already of the opinion that a neurological standard applies, i.e. a tautology.

    So the question you ask is simply not very relevant until such time that major poskim who are also well versed in the medical aspects will also conclude that there exists a useful neurological standard we may use, which we just need to define or discover.

  18. Glatt some questions

    The truth is that, at least in the US, R. Tendler is a da’as yachid.
    ————-
    R. Gedalia Dov Schwartz also believes that brain death is halachic death. As does R. Michael Broyde and R. Norman Lamm.

  19. Glatt some questions

    http://www.hods.org/English/h-issues/YouTube_video%20pages/RabbiTzviFlaum_1.asp

    Rabbi Flaum in video testimony on the issue of receiving organs but not taking organs.

  20. “You cannot ignore that there is a halakhic jurisprudence of death that has existed for centuries, without recourse to any modern scientific test.”

    If this is the basis for continuing that jurisprudence, then why should there be any discussion at all about “brain death” in the paper; why not simply say this is how we always did it and we’re continuing to do it that way notwithstanding any new scientific knowledge. But the paper, and the poskim, don’t say this; they take the possibility of brain death seriously although the paper ultimately rejects it. [See PS at the end of this post.] But once you begin to discuss “brain death” then it’s incumbent, I think, to get ALL the scientific facts right and present ALL the relevant scientific data which, as Dr. Standlan has shown, was not done. AISI, the paper deals with brain death only to the extent that it supports the “unstated” conclusion that brain death is not halachic death [see PS]; whatever does not support that conclusion (i.e., the material presented by Dr. Standlan as well as other matters) becomes “irrelevant.”

    PS I understand that the paper says it reaches no conclusion on this issue, but one would have to be brain dead [excuse the poor pun] to read the paper and not understand that, without explicitly saying so, it implicitly says that.

  21. Two things have changed regarding the preexisting halakhic jurisprudence of death which make relying on it without comment a problem. first is our understanding of what is going on the body around the time of death, and second is our ability to separate, in time, the cessation of brain function from the cessation of cardiorespiratory function. Until relatively recently, the body was more or less a black box in relevant respects, and until very recently, brain heart and lung function all ceased more or less simultaneously, so that there was no need to conceptually distinguish between them and identify one of them as _the_ determinant of death. i did not see anywhere in the RCA document a sensitivity to these issues. Yet, without taking into account these factors, it is virtually impossible to know how the previous standards for _determining_ death, from a time when brain death a) could not be and did not need to be directly identified, should be applied today when we can tell what is going on with the brain, and when it may be different from what is going on with the heart (and breathing, albeit not the lungs.)
    I must say that I was extremely disappointed in the RCA document (and not for the reasons Dr. Stadlan was — I skipped the part on physiology, as I am already familiar with this area.) It was impossible to read this document as anything but what Dr. Stadlan described it as “101 reasons why you should reject brain death”.) The problem is not that they rejected brain death, its that one reading the paper could only know why one would reject it. No coherent presentation of the brain death position was even attempted, nor was there any critique of the other side. Indeed, there was often a double standard, with an issue being cited as a problem for one side and dismissed as not a problem for the other (e.g., apparently assuming that chazal had medical information only discovered in the last century. This is cited as a problem sometimes and other times dismissed as not really a problem.)
    Again, I want to point out that I myself have serious reservations about brain death. However, when confronting the challenges raised by modernity and science, it is essential to have a deep sensitivity to what had indeed changed in the metzius and in our understanding. I did not see this displayed here.

  22. By “here”, I am refering to the RCA report, not Dr. Standlan’s post

  23. @Joseph Kaplan wrote:

    why should there be any discussion at all about “brain death” in the paper; why not simply say this is how we always did it and we’re continuing to do it that way notwithstanding any new scientific knowledge. But the paper, and the poskim, don’t say this; they take the possibility of brain death seriously although the paper ultimately rejects it.

    Since many of the poskim who reject a neurological standard (we’ll ignore the not very useful every-brain-cell-must-have-died suggestion of R’Shelomo Zalman Auerbach for a moment – he only accepted a theoretical, but otherwise unhelpful neurological standard) rejected it totally, not in degree, therefore there is no need to explore any possibly alternative standard. They did not care about such an alternative standard and simply rejected the idea.

    The paper demonstrates that support for a neurological standard based on published teshuvot becomes, once the medical background is analyzed, even more tenuous than seemed. It goes through the key sources quoted in support of brain death (R’ Moshe Feinstein, R’ Shelomo Zalman Auerbach, the members of the Rabbanut committee that authorized a neurological standard) and shows that one can hardly count those sources as supporting brain death. It does so by analyzing the medical background information. That is a worthwhile endeavor.

    However, the paper doesn’t preclude poskim now researching what Dr. Stadlan suggests. If they will reach different conclusions, the balance may tip, but that is all outside the scope of the paper. The paper was really about evaluating the halakhic literature out there. The medical analysis is only for allowing the readers to sensibly understand the teshuvot.

  24. But R. Folger,
    How is a reader to judge the validity of the papers critique of those who support brain death determinations in halacha without a full understanding of the relevant medicine?

  25. Glatt some questions

    The paper was really about evaluating the halakhic literature out there. The medical analysis is only for allowing the readers to sensibly understand the teshuvot.
    ———————————
    Rav Arie, given the amount of solid scientific research that Dr. Stadlan had presented to Rabbi Bush and the committee before the paper was published (but that was left out of the report), do you feel that the paper did an adequate job of evaluating the halachic literature? Any halachio analysis on this particular issue must be based on the latest scientific evidence. If we agree that Dr. Stadlan’s research is important in understanmding the issue of brain death, why did the committee choose to ignore it?

  26. R Folger, you are insisting that circulation defines death but you can’t tell me where it has to be found in the body in order to know that the person is alive or dead.

    When the chatam sofer didn’t find circulation, the medical science of the time told him every organ was dead. That is not the case in modern medicine.

    This is actually a Halacha l’maaseh issue. If shimon’s heart and liver are transferred to reuven, is the resulting combination the person of reuven or shimon? This obviously has huge implications as far as Which wife is still married and which is a widow. By circulation definitions, both are still alive since parts of both menl receive circulation. Is that your psak? If it isn’t, please explain why. Please define your terms with precision.

  27. When the chatam sofer didn’t find circulation, the medical science of the time told him every organ was dead.
    ===============================
    Actually I thought the medical science of his time was msupak and said you had to wait 3 days to be sure the person was actually dead and that people were buried with a bell/pull chain just in case?

    Forget the heart/ liver, what if in some future state there is a brain transplant and they do a double transplant between shimon and reuvain? What if they replace all of the blood with an artificial blood so that it is neither reuvain or shimon’s…..

    KT

  28. I often wonder if perhaps we never had a strict (conceptual) definition of death; only a very strong umdenah that we rely on in practice to declare someone a goses and to bury the body once X or Y occurs. With advances in science we now have improved practice and our current criteria significantly improve the odds of being correct. (I do not see people visiting the cemetery to check anymore!)

    There is another less emotional area where poskim naturally assume that there must be a definition; in fact, all that is required are criteria that tell you how to act. And of course criteria change as science/medicine continue to improve. A conceptual definition may be asking for more than is required.

  29. Dr. Bill,
    the problem with not having a definition is that without one, how can you tell whether the old practice guides are appropriate when there is new techonolgy that can separate brain function from cardiac activity.

  30. It seems to me that the focus on the practical means used in talmudic times to judge whether or not someone was dead is besides the point today. They only had breathing and heart action as potential criteria. Today, medical practice has advanced to the point where both heart and lung function can be replaced by mechanical devices. That innovation leads to or requires a new criterion for death such as total and irreversible loss of brain function.

    It seems to me that we no longer follow the traditional criteria for death when it comes to resuscitation efforts by Hatzala on shabbat. Even if spontaneous lung and heart action are absent, they are still required to continue CPR and shock treatment in the hopes of restoring such function. Thus, we are ‘mechalel’ shabbat for someone who is dead according to talmudic criteria. Why, then, should heart action be governing if tests have found no brain function and spontaneous breathing is absent? Of course, safeguards must be in place to insure that the would-be donor is truly dead according to accepted criteria and protocols.

  31. Jonathan Cohen

    As no one has yet taken up the challenge raised by Dr. Stadlan in Section IX, I will attempt to offer some remarks. Dr. Stadlan challenges the ‘circulation criteria’ on the grounds that circulation can be maintained artifically in what all would intuitively agree is a corpse. I will make two comments:

    1. Ultimately, any advocate of a circulation or cardiac criterion must acknowledge that when the action of the heart is replaced by artifical means, circulation ceases to become a reliable sole indicator of life. Similarly, presence of circulation when it is no longer effective in maintaining coordinated functioning of the body is also irrelevant – such as in the case of decapitation where the heart cotinues to pump, but the circulation has become ineffective. However, this does not logically lead to the rejection of natural circulation as indicative of life. It merely shows that natural circulation cannot be the sole and absolute indicator of life. Those who advocate circulation criteria must understand that there is a set of criteria, the meeting of any of which would indicate life on its own. Thus, it is perfectly cogent to state that the presence of any one of the following demonstrates the person to be alive: spontaneous heartbeat maintaining effective circulation; spontaneous respiration; any orderly/coordinated movement of any body part. This is probably a rough sketch of the ‘traditional’ criteria, which has been referred to as the ‘vital motion’ position. Each item on the list could be debated based on halachic sources. It should be noted that this is also the essential position of those who advocate the ‘spontaneous respiration’ criterion. They will also admit that Christopher Reeve was not dead, despite irreversible loss of spontaneous respiration. This is defended by the proponents of this position by pointing to other vital functions that he continued to perform such as talking. The debate between the spontaneous respiration position and the cardiac/vital motion position thus boils down to whether a spontaneous heartbeat is considered a ‘vital function’. Both positions agree that the definition of death cannot be boiled down to one necessary and sufficient criterion for death. Which brings me to my second comment:

    2. Dr. Stadlan has correctly pointed out that the term vital motion, and the precise application of the various criteria need to be all subjected to rigorous analysis. In fact, one might add, the term ‘vital motion’ is circular when applied to the definition of life vs death. However, before going further, one can legitimately apply Justice Stewart’s famous line “I know it when I see it”. A rigorous definition is certainly a philosophical desideratum, but not essential in developing a definition, which can be laid down in broad strokes, leaving a certain amount of grey areas depending on precise definitions of terms that have to be adjudicated in each specific case. Having said that, much of the halachic discourse boils down to an attempt to pin down this elusive idea. The classic case of decapitation discussed in the Mishnah is one example, where the Mishnah pins down motion following decapitation as non-vital. Given the Mishnah’s dictum, one might suggest a definition something like: “Any movement that represents coordinating, entropy-limiting activity” which woould exclude the death throes of a decapitated person. The precise definition of these terms could be debated but the fact that borderline cases can be found is not indicative of a flaw in the conceptual model.

  32. Dr. Stadlan,
    Yi’yasher kochakha on your illuminating presentation, which offers an important elucidation of positions (i) and (ii) among what I envisage as four possible and equally plausible ways to regard brain death. [My analysis is offered in the “Brain Death in the News” post, in my comments of Dec. 8, at 3:24 p.m., though others are free to disagree with me. Your excellent Meorot article is credited in the course of that analysis.]
    To respond to your important question posted at 2:32 p.m.: “If Shimon’s heart and liver are transferred to Reuven, is the resulting combination the person of Reuven or Shimon? This obviously has huge implications as far as which wife is still married and which is a widow.”
    I would say as follows: the gemara in Sotah 43b determines that if a branch of a non-orlah tree is grafted onto an orlah tree, or vice-versa, and new fruit subsequently grow, we follow the legal status of the host tree onto which the guest branch is grafted. In Contemporary Halakhic Problems Vol. 1, p. 107, R. Bleich cites a certain R. Yekutiel Aryeh Kamelhar as applying the same principle to organ transplants. Presumably, then, although the liver and heart come from one person (who is safek alive, safek dead according to my analysis), they have been assimilated into the new person with the transplant.

  33. R. Folger, Having read your comments in toto, I must insist that you stop taking the conversation off on tangents. The point I made is that the cardiopulmonary definition of death makes no sense in the modern era of medicine. My meorot article shows how it produces absurd results. If you really believe that this definition is still cogent, I invite you to answer the simple questions at the end of my article. They have nothing to do with brain necrosis, and nothing to do with neurology, unless that is how you answer them.

    I must add that your response regarding the content does not explain all the errors and misstatements. Simply ‘enlarging the vocabulary’ doesn’t require all the negative and unbalanced comments regarding brain death. You also mention that one purpose was to ‘open the reader’s mind to doubt and to reading without preconceptions.’. Are you really going to claim that you accomplish that goal by presenting only one side of the story?

  34. R. Spira. Thank you for your comment. What is missing however, is how you decided which is the branch and which is the tree, or which is the donor and which is the recipient. If you define a body as some tisse attached to a head with a working brain, it is straightforward. However those who define life only by circulation will have difficulty making the distinction, because defining a body using the word brain implies that it isn’t a body when the brain is gone

  35. An interesting point for those who require brain necrosis or all brain cells to die.
    When circulation by the heart stops ALL HEART CELLS have not died yet.
    Should we consider the person not dead yet since some heart cells are still alive?

  36. Dr.Stadlan has made a most important contribution to our understanding of death.He has also beyond a reasonable doubt pointed out the non-objectivity of the RCA report which ,to me,is very demoralzing.

    To me the bottom line is that those patients evaluated by physicians by present neurological criteria and testing to have irreversible brain and brainstem functioning which includes irreversible loss of spontaneous respiration have never returned to any neurological functioning.

  37. Dr Stadlan-Two queries-have you listened to the discussions re brain death that took place at AECOM in the early 1990s with a panel that consisted of R Tendler, RHS, a neurosurgeon and an audience of many Talmidie Chachamim , doctors and medical students? Would it be fair to characterize this issue in this manner-assuming that Chazal, Rishonim and Acharonim were unaware of the Harvard criteria, is it possible to reconcile the same in any way with the traditional definitions of death as marked by a cessation of circulatory and respiratory function? Stated differently, if the Harvard criteria were in fact unknown, does not the adoption of brain death based criteria constitute a huge departure from the circulatory/respiratory based criteria?

  38. MDJ, you do not need a strict formal definition; you need a methodology to make decisions. Poskim can (and do) make decisions that extend practice rationally even absent a formal definition, and even, on occassion, with an incorrect one. They may create hypothetical definitions to guide their thinking, but in an area like this it may be best to assume all we have that is normative is operational precedence. This does not necessarily answer the question; it merely changes the way you go about thinking about it.

  39. Mr. Brizel,

    Could you please provide a link or reference to the AECOM discussion you mentioned.

    Thank you!

  40. Steve. No I have not heard the tapes.

    Your point is actually quite good. The concept of brain death fits quite well with premodern opinions on death, once you take into account the existing science. They couldn’t be expected to determine which part of the body was crucial to the life of the person because it wasn’t possible for some organs to function without the others so there is no contradiction if you take the approach that they were finding the best path they could within the confines of available science. As as been pointed out, doing CPR on shabbat is the result of a similar analysis because it actually contradicts the specifics of the Gemara. We could discuss if many present day poskim concentrate more on perpetuating the details at the expense of losing the concepts but that would be another long thread

  41. Dr. Bill,
    You could go about it that way, but my point is that ultimately, if you don’t know what it means to be dead, you don’t know how to extend the past operational rules. Any extention you make will essentially be arbitrary, in that it will not be tied to that which you are trying to accomplish, determining death. It cannot be, since you don’t know what death is.

  42. Thank you, Dr. Stadlan, for the excellent and thought-provoking quesion regarding how to determine who is the “trunk” and who is the “branch”. I am guessing, in response, that human identity would be determined the same way birth is determined. I say this based on “The Problem of Identity in Rashi, Rambam, and the Tosafists” by R. Bleich in Tradition 41:2 (Summer 2008). From that article it seemingly emerges that being born from a human being is what halakhically makes a person a human being (-with the notable exception of the first two human beings, Adam and Chavah, who were human beings because of a gezeirat hakatuv of the Torah). Since birth halakhically occurs when either the head or the majority of the body emerges, I am supposing that the “trunk” is Reuven and the “branch” is Shimon, since the head and/or the majority of the body that remains following the transplant is that of Shimon. [I assume that “majority” is defined in terms of volume, just as we find in hilkhot ta’aruvot.] Amusing as it sounds, what would happen if the head was from one person and the majority of the body was from another (-thus creating a contradiction within the laws of birth)? This I do not know, but B”H this question does not appear to have arisen yet.
    The symposium with R. Tendler and R. Schachter at AECOM is recorded in three parts at:
    http://www.yutorah.org/lectures/lecture.cfm/711847/Rabbi_Moshe_D._Tendler/Definition_of_Death_I
    http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II
    http://www.yutorah.org/lectures/lecture.cfm/711849/Rabbi_Moshe_D._Tendler/Definition_of_Death_III

  43. More likely “rov” would be via “rov minyan o binyan as we see in hilchos tumah as applies to the human corpse, I would think.

  44. Actually moving a head from one body to another has been done in monkeys by Dr Robert White. So you hold that if this was done the person’s identity is determined by the majority of cells? It doesn’t matter whose brain is there?

  45. (1) Sorry for my blunder… I should have written:

    Since birth halakhically occurs when either the head or the majority of the body emerges, I am supposing that the “trunk” is Reuven and the “branch” is Shimon, since the head and/or the majority of the body that remains following the transplant is that of Reuven.

    (2) Thank you R’ MDJ, for the insight from Hilkhot Tum’at Ohel. Definitely food for thought… But I’m not sure, since the parameter of “rov minyan or rov binyam” is a Halakhah Limosheh Mi-Sinai measurement for dead tissue. Regarding living tissue, we are relying on the precedent of trees in Sotah 43b, as well as the various precedents regarding surrogate motherhood [a quasi-form of organ transplant], as described by R. Bleich in Contemporary Halakhic Problems IV, ch. 11. Most of those precedents do not involve bones (except for the Midrash that Joseph was transported as a fetus from Leah’s womb to Rachel’s womb; Joseph as a fetus presumably had some sort of skeleton. Can an embryologist confirm on what day of gestation the skeleton begins to form?). But still, it’s food for thought… And if one does follow “rov minyan o binyan” for organ transplants, then it makes the calculation that Reuven be deemed the “trunk” even simpler, since neither a heart nor a liver contain a bone.

  46. Joseph Kaplan

    It’s not uncommon for reports of committees to be issued in draft form so comments can be made and, if valid, incorporated into the final version. In light of Dr. Stadlan’s response to the RCA report and his article in Meorot, the letters by respected Orthodox doctors in the field which appear in this week’s Jewish Week, and comments from others on this blog and in other places (e.g., in the comments section of the Jewish Week), the RCA would be wise to announce that the report is going back to the Vaad Halachah for further investigation and research. That would give them an opportunity to consider Dr. Stadlan’s medical arguments here and his halachic analyses in Meorot, the comments and arguments of others, and perhaps even find the time to speak to R. Walfish. They could also make sure the report not only clearly states that is not reaching a conclusion but that it is fair and balanced and truly objective so anyone who reads it will understand that immediately. I’m not holding my breath for this to happen, but on this last day of the holiday of miracles (no, I don’t want to get into THAT discussion), one can always hope.

  47. Shalom,

    I can’t answer for Dr. Stadlan, of course, but I think the problem with your answer is this:

    You’re addressing when a person STARTS being a human. Dr. Stadlan is addressing when a person STOPS being a human. After all, once a person is born, his “human being-ness” presumably extends to every part of a person, and is not removed until “death.”

    This becomes especially problematic if you adopt the circulatory death standard. If circulation equals life, then Shimon’s “human being-ness” – established by his being born with a head (that is one weird phrase!) – does not cease until circulation ceases. Since circulation continues even after the transplant, you still have a fully human Shimon and a fully human Reuven. Thus, your analysis fails to solve the logical conundrum.

  48. I heard someone once ask the following: What if scientists successfully transplanted a human brain into a horse and a horse’s brain into a human? What would the halachic status of each?
    He said “‘a horse is a horse of course of course’, and halacha would look at the physical body before us.” So the horse could be in the middle of writing a book on philosophy and we could kill it. But I felt that clearly the human, the soul, is based in the brain. The brain could be taken out and placed in a machine, but if it’s still operating, there’s a human there.
    It seems it would be difficult to rule based on gemaros and rishonim when they are discussing a different issue. The definition of death wasn’t a question, they just discuss what the diagnostic signs are.

  49. MDJ,
    My point earlier exactly – and it isn’t just brain death, it’s halacha in general.
    KT

  50. Joel,
    I agree that my (our) point is valid in general, but I think that sometimes, this arbitrariness is not necessarily so problematic. Here it definitely is. Though I’m in favor of more rigorous analysis in general, too.

  51. David, Dr Stadlan and all interested-The tapes in question are available, as are many other tapes of RYBS, RHS and other Talmidei Chachamim, from R Milton Nordlicht, who lives in KGH.

  52. R’ Jerry,
    Thank you for clarifying the issue. The beginning of becoming human and the end of being human appear to be two sides of the same coin. Thus, detachment from a head plus the majority of the body is certainly the end of human identity. When a liver is removed from Shimon, the liver is being detached from Shimon’s head as well as the majority of Shimon’s body. Thus, the liver ceases to be associated with Shimon, and is assimilated into Reuven once transplanted into Shimon. The same holds true with Shimon’s heart.

  53. Oops… I meant to write “once transplanted into Reuven”. Thank you.

  54. I thank Rav Spira for his willingness to address the topic. I would point out that since Halacha accepts two people in one body(conjoined twins) there is no need to posit that one will be absorbed into the other. Since both continue to receive circulation, by that definition of life they both are alive, and there is no basis for considering either as dead.

    The circulation based definition of life provides many such logical incongruities, where the actual psak does not seem to follow a circulation based definition of life and death. For example: CPR. during CPR, there is blood flow. In fact, a pulse can be felt with each chest compression. Therefore, while CPR is going on, the patient has circulation, and thus has to be seen as alive. Similarly, if CPR is stopped, the circulation has ceased, and now the patient has to be considered dead. Therefore, the act of stopping CPR is an act of stopping circulation. If circulation is the criteria for life and death, it should never be ok to tell someone to stop CPR.

    I again would request that anyone who advocates the circulation based defintion of death to please address all the questions I listed at the end of the article.

  55. Dr. Stadlan, I think what isn’t clear from your wording is that your issue with the circulation based definition of death is based on its own incoherence, as opposed to its failure to match up with “what we know from modern science.” R. Folger’s response is a perfect example of the kind of response you get when your argument is “it doesn’t match what we understand from modern science” – skepticism about what we know from modern science. But that’s not what you’re saying. You’re saying that the position itself just doesn’t make any sense internally.

  56. Doron Beckerman

    Based on RHS’ article in B’ikvei Hatzon, it emerges that he is of the opinion that the determination of what constitutes death cannot be updated due to scientific advancement, because just as Chazal determined Tereifos and their definition remains true even with scientific evidence to the contrary (as per the Chazon Ish), the same applies to the determination of death.

    From the same article: answers seem to emerge to some of Dr. Stadlan’s questions:

    2.Please give the Halachic definition of death. A person is dead when______________

    He MAY be dead when one of what the Gemara calls vital limbs (brain, heart,liver) has irreversibly ceased to function due to lack of circulation to that limb [RHS recognizes that this leads to a huge Chiddush, i.e. that one whose liver has been removed, even if he is walking and talking, may be Halachically dead. He says, In Hochi Nami.] He is CERTAINLY dead (according to Rav Moshe Feinstein’s acceptance of irreversible cessation of function due to lack of circulation, like a gangrenous limb, rendering that limb dead) when all three of those limbs irreversibly cease to function due to lack of circulation. Others might hold that so long as these limbs are still attached to the body, they are not dead, even if they have irreversibly ceased to function, so long as there is circulation in the other parts of the body. [Of course, this option raises the question of machine induced circulation through a body with all vital organs having failed.]

    3.Is the only Halachic consideration circulation?

    Yes and no, as above.

    4.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.

    [See above].

    7… If he is dead, obviously you are forbidden to do so.

    This is actually not the case. Revival of a dead individual, where you know your efforts will succeed, is Docheh Shabbos. See Tosfos BM 114b s.v. Amar Leih.

  57. I am grateful to HKBH that I live in an age where it takes only an EMT (or boy scout) to be m’chayeh meitim and not one where it takes a great navi like Eliahu, Elisha or Yechezkel to do so.

    I am not sure how to make sense of the position that the criteria for death cannot change regardless of the advance of medical knowledge, even if the latter allows for “dead” people to be walking around. A treifah is one thing; although there is no chiyuv mitah for killing a treifah (person) it remains a serious issur. And he is chayav in all the mitzvot. But there is no issur at all in (or even definition of) “killing” a dead person. For that matter the gemara in Sanhedrin at least entertains the possibility that mitzvot do not apply to the revived dead, and the Rishonim argue about whether this is normative p’sak. Would R. Schechter say (according to that shitta) that anyone who has survived the temporary cessation of circulation to to CPR or other medical intervention is pattur from all mitzvot?

    Similarly, if we can “revive” a person even after the cessation of all physiological function, by hooking the body up to a blood pump or blood pump and ventilator how do we ever hold a funeral for anyone whose body has not been blown to bits? What if medical science advances to the point where not only heart function but also liver function and at least partial brain stem function can be replaced by machine? Will halacha rule that everyone has become immortal?

    To say the criteria must remain that of the gemara despite all medical advances, requires that one be able to apply the criterion consistently across all matters that depend on the definition. Otherwise, it doesn’t make sense. This is easy for the definition of a treifah, but I don’t see how to do that for the definition of death. Perhaps R. Folger can elucidate.

  58. It occurs to me that one needn’t invoke the machloket in Sanhedrin. According to all opinions death of the husband terminates a marriage. If CPR or similar medical interventions to resore circulation after it ceases are halachically techiyat hameitim, would not the wife of such a man not be a widow and free to remarry? Would they not need chuppah v’kiddushin again to remain married?

  59. Doron Beckerman – does that mean that we cannot revive someone on Shabbat (if this involves melacha) if they are ‘dead’ according to Chazal’s criteria?

  60. Doron beckerman. Thanks for the comment. Please see the meorot article where I specifically discuss the problems with rav schachter’s position. Also. The appendix of that article shows how rav schachter, when he adds to the rambam, violates his own view of the chazon ish.

  61. Jon yes. Thanks for clarifying. The main point is the logical incoherence of the circulation argument when applied to all the situations that require a determination of life and death.

    I guess the other main point was that the RCA put out a document they knew was very biased and still refuse to acknowledge the fact, despite the volume of proof I presented.

  62. Doron Beckerman

    Dr. Stadlan,

    I’m not sure I understand your objection to RHS’ “adding to the Rambam”, but that’s probably because I don’t fully understand where RHS is coming from.

    ISTM, based on the Gemara in Arachin, that the definition of Davar Shehaneshamah Teluyah Bah parallels that of Tereifot – the Gemara says that one who pledges min haarkubah ulmaalah also constitutes davar shehaneshamah teluyah bo , and see Tosfos ad loc. The Rambam is codifying that one who is noder the erech of limbs that he cannot live without, must pay his entire erech – because he will die within a short period of time without them, not because he is currently dead in their absence. So there is no inherent inconsistency in asserting that the absence of one of these limbs renders one in the category of unable to live, while asserting that one must be missing all to be categorized as currently dead.

    I’m not sure how RHS derives from there that the absence of one, or even all, of these three limbs renders one currently dead.

  63. Dr. Stadlan,

    I’m not sure I understand your response to Dr. Shabtai, or many of your statements in the article, for that matter. For example, what part of the following proposition is incoherent or contradicted by medical knowledge:

    Halakhically, a person is not defined as ‘dead’ so long as he has a heartbeat.

  64. I continue to be amazed by the certainty that people have that there must be a formal definition; clearly we think using mental models that include formal definitions but they may not necessarily be intrinsic to halakha in either this or in some other cases. I wonder if our modern methods of (brisker)conceptual learning do not contribute to this view. Medical science can certainly continue to improve on operational criteria in any context including a halakhic one.

  65. Doron beckerman- my point was actually simply that rav Schachter adds the element of safek and gosses, neither of which are found in the rambam’s discussion of the issue. Similarly, Rav Schachter uses the Rambam’s version rather than that of the Gemara, and the Rambam is outside the chazon ish’s era of Torah

    Dfdf. Consider a body that has not had circulation for over an hour. Everyone would attach the label of dead to this body. I could attach an artificial heart o the body and now itnwould have circulation. By your statement it is alive. Also, it is necessary to define what exactly a body consists of. Does a body need a brain in order to be considered a human body? The point I have been trying to make is that we make assumptions about what a body is without precisely defining it. And, when we define it precisely, it doesn’t make sense unless we define a body by the presence of a potentially functioning brain

  66. R’ Dfdf,
    Thank you for your insight, and I fully agree with you that – halakhah lima’aseh – because of safek piku’ach nefesh, we must treat brain dead patients as alive (as per my analysis posted over at the “Brain Death in the News” series, comments #101-103). At the same time, Dr. Stadlan’s contribution to the sugya is illuminating and enriching, because he has successfully caught R. Bleich on two key errors (-and, by the way, R. Bleich [being a tzaddik gammur] is not ashamed to be caught on errors, as he implicitly admits in his introduction to Contemporary Halakhic Problems Vol. III, and as is befitting the enterprise of “Torat emet haitah bifihu, vi’avlah lo nimtza visfatav” – Malachi 2:6):

    (a) R. Bleich (Benetivot Hahalakhah III, p. 144) claims that there is no source in rabbinic literature that consciousness is a sign of life. Dr. Stadlan has powerfully disproven this from Menachot 37a. [And, of course, Vilna Ga’on to Ohalot 1:6 reinforces Dr. Stadlan.]

    (b) R. Bleich (Bioethical Dilemmas II, pp. 218-223) proposes that one can be a human being even if one is not born from a human being. As Dr. Stadlan has powerfully demonstrated in the present conversation, that proposition is contradicted by R. Bleich’s own subsequent publication “The Problem of Identity in Rashi, Rambam, and the Tosafists” in Tradition 41:2, and – moreover – it is only the latter article which is coherent in explaining why an organ transferred from Shimon to Reuven becomes assimilated into Reuven.

    So, we must give a yi’yasher kochakha to Dr. Stadlan for correcting R. Bleich’s errors, and we also follow R. Bleich, due to safek piku’ach nefesh.

  67. “and we also follow R. Bleich, due to safek piku’ach nefesh.”

    Who is this “we”? R. Tendler? The Rabbanut? Dr. Standlan? R. Billet?

  68. Doron Beckerman

    my point was actually simply that rav Schachter adds the element of safek and gosses, neither of which are found in the rambam’s discussion of the issue.

    But that’s because the Rambam is just saying that he will not live without those organs, not that he is currently dead. Thus he is not precluding a definition of safek or goses vis-a-vis his current alive or dead status.

    Similarly, Rav Schachter uses the Rambam’s version rather than that of the Gemara, and the Rambam is outside the chazon ish’s era of Torah

    RHS writes that “kanir’eh” that was the version the Rambam had in the Gemara.

  69. Dr. Bill,
    I don’t think that I called for a “formal definition” anyway. An informal one would be fine. But I don’t understand your comment. You are “amazed” by those who think we need a definition, but then say that they “may” not be necessary in this case. You’re not even sure it’s not necessary here, but are amazed at those who think it is.

  70. Rav spira, Rabbi Bleich needs to define the terms body and ‘vital motion’. I have pointed out the logical problems inherent in defining these terms without referring to brain function.

    Doron B. The fact is the Rambam doesn’t say it. Whether his position is consistent with what rav Schachter holds is not the point. Rav Schachter precluded ANY post talmudic changed, specifically he excludes medical based changes. And, in fact the rationale he brings for the safek/gosses is a medical reason

    Dr. Bill. Halachic discussions are frequently focused on trying to establish the exact details of practice. In a matter of literally life and death importance, I think it is reasonable to request details. And, if advocated of a certain position are unable to supply elementary details such as where circulation needs to be found, significant doubt has been cast on the position and the underlying assumptions. The fact that circulation advocates cannot identify where circulation needs to be found without using the word brain only underscores that this position is a relic from a time when the body was considered an interdependent whole. That assumption is no longer scientifically true and the circulation advocates have yet to adapt to the new scientific reality  

  71. FYI: Dr. Stadlan’s post was picked up by Jewish Ideas Daily http://www.jewishideasdaily.com/.

  72. MDJ, I am suprised that no one questions the need for a formal definition. I know we all tend to work with one, but whether that means an operational criteria versus a formal definition is a very different question. The former is certainly impacted by advances in science.

    Dr. Noam Stadlan – you write: “Dr. Bill. Halachic discussions are frequently focused on trying to establish the exact details of practice. In a matter of literally life and death importance, I think it is reasonable to request details.”

    agree completely – but “the exact details of practice” is not a formal definition. The assumption of a “formal definition” can often be limiting; it impacts how we approach an issue.

  73. Dr. Bill,
    Let’s put it this way. We had operational criteria for death of someone not on a ventilator. Are those criteria appropriate for someone on a ventilator? Only if you know what it is to be dead can you determine this.

  74. MDJ, making a determination does not necessarily require a formal definition. Poskim naturally create definitions as they attempt to extend practice to new circumstances. Relying on such definitions can, in certain circumstances, lead you astray.

    Let me try something absurd just for illustration: if i knew I had no sensation whatsoever and that was irreversible, would i care if i was buried or if my organs were harvested?

  75. Dr. Stadlan wrote:

    The point I made is that the cardiopulmonary definition of death makes no sense in the modern era of medicine.

    Yea, I think we all figured out that is the position you espouse. Except, that is not how jurisprudence works. If for centuries, death has been defined in a particular way, that way remains valid, your protestations notwithstanding. You want to redefine the age old cardiopulmonary standard in different terms, in order to then allow in some cases for death to be pronounced earlier.

    All fine and dandy, but none of that is a legal, i.e. halakhic argument. You have to come to terms with the idea that halakhists are not required to look at the world as you would like them to. Obviously, those who reject your approach, either will yet come around, if you are convincing enough, or … simply disagree and think your analysis is not relevant to the whole issue.

    And come to think of it, what I just wrote is also the key to understanding why the scientific arguments you clamor for were not presented: it isn’t relevant to the understanding of the already published responsa. It may become relevant, but isn’t yet.

  76. Thank you, Dr. Stadlan, for the excellent follow-up questions.

    Halakhah lima’aseh, the definition of a living body will follow from the definition of birth – the head (whether functional or not) plus the majority of the remaining body, so long as circulation continues. However, I infer from your two articles and your subsequent comments that it is untenable to regard a human being as suddenly bifurcating into two human beings. Thus, position (iv) must be rejected, since according to position (iv), a human being could suddenly become two human beings if the head and body were surgically separated and were both attached to separate lifesupport machines. I confess that it seems to me that you are entirely correct, and that you have successfully vanquished me, as well – more significantly – as 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) – all of whom had suggested the possibility of option (iv). Congratulations, yi’yasher kochakha and thank you for saving us from false judgment.

    It is clear then, that literal decapitation as described in Sotah 45b automatically confers the status of death (both to the head and to the body) according to Halakhah, whether or not the person is attached to a lifesupport machine. I shall make a note of this on the “Brain Death in the News” series, and I will also immediately telephone R. Bleich to inform him of this important development in the lomdut surrounding brain death. We can count this a third key error on which you have caught R. Bleich.

    Still, since the now-defunct option (iv) deals with a most unusual case [i.e. a literally decapitated human or animal in the ICU; having clinically materialized only in the case of the pregnant sheep experiments conducted at RSZA’s behest], halakhah lima’aseh the rejection of option (iv) does not change the practical clinical management of contemporary brain dead patients [since according to option (iii) they are alive, and almost always even option (ii) will regard them as alive]. Safek piku’ach nefesh requires us to consider them as alive. R’ Joseph Kaplan correctly inquires of me who is required to follow R. Bleich on this question. In my opinion, all of Klal Yisrael (and Noahides also).

  77. R. Folger,

    This is what I was saying earlier. You’re misinterpreting R. Stadlan’s position in a crucial way. R. Stadlan is not saying “cardiopulmonary definition of death doesn’t suit our purposes and desires” – or in your words “in order to then allow in some cases for death to be pronounced earlier.” He is saying that it is *not internally coherent*. On a strictly *logical* level, the definition is nonsense. The cardiopulmonary definition leads us to declare things that are not alive by any stretch of the imagination, alive. How is that not a relevant Halakhic consideration?

  78. Sorry that should be “Dr. Stadlan.”

  79. Joseph Kaplan

    “You have to come to terms with the idea that halakhists are not required to look at the world as you would like them to.”

    It’s not, AIUI, that Dr. Stadlan wants the halachists to look at the world as he would LIKE them to. Rather, he wants them to look at the world as it REALLY is today, with all the knowledge we have today about the human body that we didn’t have when the halachot concerning death developed. Because, as I understand Dr. Sradlan’s srgument (and I apologize if I understand it incorrectly), before we had that knowledge, using the cardiopulmonary definition of death made sense; with that knowledge, using it makes no sense. And halacha is not simply a bunch of words; the words have to make sense. But I guess it’s easier to say Dr. Stadlan’s arguments and proofs are irrelevant rather than actually deal with their substance.

  80. Dr. Bill,
    You say that poskim naturally create definitions. All I’m saying is that they need to explicitly articulate them. As to your second paragraph, I have no idea what you are getting at.

  81. Dr. Folger,
    In addition to Joseph’s response to you, I must take issue with you’re saying that for centuries death has been “defined” a certain way. It has not been defined, and that is what I have been saying to Dr. Bill. But this is also a problem for you. death, as I have said, has not been defined in halacha. We have merely been given sings to identify when it has occurred. But these signs are merely tools. We now, perhaps, have better tools, namely, various measures of brain function. If we are not going to use these advanced scientific tools, you must explain why it is not giving us the information we need. Saying that it gives a different answer than our old tools sometimes, is not enough of a response. Or do you reject all use of eyeglasses and microscopes in halacha even where they give different answers than the naked eye. (I realize that in some areas of halacha, “visible to the naked eye” is a relevant category. I’m not talking about those cases.)

  82. Lawrence Kaplan

    Arie Folger: Your latest response to Dr. Stadlan with such commments as “Yea, I think we all figured out…,” “All fine and dandy,” “and come to think of it” is not befitting the hitherto serious and dignified nature of this discussion. This is aside from the substantive objections to your response raised by recent bloggers. If you can’t stand the heat…

  83. Arie Folger:

    The problem with your position is that modern medicine has made this essentially a question of metzius. Either circulation can be used to define death, or it can’t.

    Therefore, if it can be shown that circulation cannot possibly define death (i.e. because, as Dr. Stadlan has demonstrated, there are cases where a person would be considered dead l’chuley alma…but under the circulation definition would still be considered “alive”), then we essentially have two options:

    1) Chazal were wrong about the metzius, or the metzius changed, etc., in which case we must follow the current metzius. [Not an optimal solution obviously]

    2) Reinterpret Chazal, and as many later poskim as possible, so that they no longer hold “circulation ONLY” as death. Those poskim who cannot be interpreted this way because they explicitly say otherwise must be rejected because on the grounds that the metzius is not as they understood it (an approach that the RCA is EXPLICIT in approving in their paper, e.g. vis a vis smoking).

    What we CANNOT do is what you are proposing, namely:

    3) Ignore the metzius and adopt a position that is not logical given the current metzius, and that additionally would render “alive” people who are l’chuley alma dead.

  84. Doron Beckerman

    Dr. Stadlan,

    The Rambam does not mention it because it isn’t pertinent to the laws of Arachin whether he is a goses or safek dead. All we need to know is that he will not live. Whether he will not live because he is a tereifah, or a goses (read – in the process of dying), or possibly currently dead is open to discussion, and opting for one or two over the third cannot be considered a violation of the Chazon Ish’s three epoch thesis. What RHS’ source is for selecting one over the other is also open to discussion.

    MDJ,
    You would be correct if it were being asserted that what is being discussed is a method of determining whether he is dead. But that’s not what RHS asserts. It is that Chazal held the irreversible cessation of circulation (potentially – to the three vital organs) is death.

  85. I believe that R. Folger was saying that the decision to reject all precedents and halakhic literature because of a changed metzi’us is the kind of decision that a great posek needs to make. That is not the role for the RCA’s Vaad Halacha, certainly not in this case where they took upon themselves to investigate the positions of the poskim and not reach any conclusion of their own.

  86. I, at least, was not tying in to the discussion of RHS. Perhaps this was my error. AT any rate, I think that my comment has validity in the broader discussion, and expands on what I was saying to Dr. Bill earlier.

  87. Doron Beckerman

    A question for Dr. Stadlan:
    Do you foresee a possibility, even theoretically, where scienctific advancement takes us to the point, wherein the same logical problems that you see with the circulation criterion will also apply to the Harvard criteria? Is it not theoretically possible that we will one day be able to artificially mimic some vital brain function? And, if so, where would that leave us?

  88. This point has not been stressed enough. There is no halakhic definition of death; there were only criteria for determining death. The question is simply whether the criteria in the Talmud were intended to identify, for standard cases, a state that coincides with the state identified via brain death criteria.

    Since halakhah routinely deals with purely metaphysical states we do not even know whether the Rabbis thought that biological death constituted or was merely coincident with death. Perhaps we are making a mistake seeing chazal as naturalists. It is not impossible to imagine a that death was identified as the state in which the soul no longer inheres in the body which is in turn identified with a loss of function of the heart, or liver, or brain, all of which were thought of as the seat of the soul at one point or another in the ancient world. If that is the case then no scientific evidence would matter at all.

    But once we do make the assumption that chazal were speaking of both natural criteria and purely biological states, then it is difficult to hold on to criteria that have lost much of their internal coherence from a biomedical perspective.

  89. Doron Beckerman

    I have not yet thanked Dr. Stadlan for his Meorot article, his article here, and his taking the time to respond to comments. Mikerev Lev (or Moach) – thank you very much.

  90. Gil: “I believe that R. Folger was saying that the decision to reject all precedents and halakhic literature because of a changed metzi’us is the kind of decision that a great posek needs to make.”

    I understand, and that definitely makes a lot of sense. I think most people would agree.

    However, what I think could have been reasonably expected of the RCA Va’ad (and kal v’chomer what we MUST expect of them in light of Dr. Stadlan’s post) is that they at least note the inconsistencies in the circulatory death position. There would be no need to force them to take a position, or repudiate poskim (even though this is what they claim to have done with smoking!), but they DO need to lay out all the information in a fair and honest way.

    It’s not so much a question of whether or not halacha has to conform to metzius (even though that is a problem), as it is an issue of halacha itself not being internally consistent. That is why it is important for poskim to answer the questions at the end of Dr. Stadlan’s post. It’s one thing to say “we don’t care about metzius from a halachic perspective,” but another thing completely to say “we believe in a definition of death that would perforce require us to declare alive a person who is l’chuley alma dead.”

    Indeed, I think part of Dr. Stadlan’s point is not to say that poskim are “wrong” about circulatory death, but to point out that “circulatory death” doesn’t actually mean anything. It would be like a person asking a rav “is that drop of milk batel in that big pot of chicken soup?” and the rav responding “oranges.” It just doesn’t mean anything.

  91. Is it not theoretically possible that we will one day be able to artificially mimic some vital brain function? And, if so, where would that leave us?

    I believe that Dr. Stadlan would respond that a respirator is essentially already mimicing a vital brain function in a brain dead patient.

    But if you’re asking whether William Lycan’s “Henrietta” would be halakhicly alive, that is taka a shaila.

  92. Doron Beckerman

    Another thought that perhaps can be raised to solve some of the issue, is that the Gemara in Arachin and the Rambam there say that one who says Erech Chetzyi Alai must give his full erech, since he cannot live without half of his body, and this is also a davar shehaneshamah etc.

    Perhaps (and this would have to be asked of RHS) one could make the case that the heart, liver, and brain housed (in their proper locations, I assume) by more than 50% of the body would be considered the human being under consideration vis-a-vis circulation. Disembodied arms, or hearts, or livers, are not considered a human being.

  93. General clarification here: When referring to “brain death” is it meant to refer to full brain STEM death?

  94. R. Folger- I have made a number of arguments so let me try to be as clear as possible. The Poskim who hold the circulation definition of death are not actually using that definition in all cases where a definition of death is needed. They are being inconsistent. That, besides the inability to actually articulate the details of the defintion is the problem I would focus on. Let us assume as true Rabbi Bush’s statement that there is only one definition of death. Let us also assume that the definition should apply in all cases requiring a definition of death. If you disagree with these please let me know. Therefore, the poskim who think that circulation defines death have to use that definition in the following cases, with the following results:

    1. The case we have discussed here. Shimon’s heart and liver are moved to join with tissue from Reuven(we dont have to specify what tissue since from the circulation criteria it doesn’t matter, because circulation equals life). The parts from both people recieve circulation. Rabbi Spira’s contentions to the contrary(and I very much appreciate his vast knowledge and willingness to confront the issues head on), there is no reason to posit that any of them are dead. Therefore, halacha l’maaseh, you need to pasken they are both alive, with all the ramifications. That has not been done. This would apply to all transplants. Both people are alive, there is no widow,etc…

    2. Another case mentioned here. When CPR is done, circulation is created, and in fact a pulse can be palpated. If Hatzolah is performing CPR, the person is alive, because he has circulation. If they stop, the circulation ceases. Therefore Hatzolah personnel need to be instructed never to stop CPR. (and you cannot use the idea that CPR is done until it is clear the heart will not restart, because an artificial pump can be placed, so circulation never has been irreversibly lost). As far as I know, this instruction has not been given. Frum medical personnel need to be instructed never to give the directive to stop CPR, as this also would be murder.

    3. If A person has an artificial heart it can never be turned off, as that would make the circulation stop. As long as the artificial heart pumps, the person has to be considered alive. Similarly, a person on a bypass pump in the hospital can never be removed from that pump, it has to stay hooked up and turned on forever.

    4. If an organ has been removed for research, and it is hooked up to a bypass pump, the person actually remains alive, and again it would be assur to turn off the pump.

    5. The situation in question 7 in my paper. All I requested was for a circulation advocate to explain how to determine death in a person who has no circulation or respiration, but may have neurological function. He could be totally awake and alert, or he could have been without circulation for hours or even days. If you are not paying attention to the neurological status, how are making a determination of life and death in that patient?

    all of these are kasha’s on the circulation definition. There are three options as far as I can tell: 1. admit that the circulation definition of halacha actually hasn’t been used in these situations, and that it is inadequate in the modern medical era. 2. come up with other halachic reasons for the decisions that have been made(keeping in mind you still have to answer question 7 and define exactly what you mean by circulation and what the body is) or 3. have the RCA publish halachic guidlines instructing the public what the results of the circulation definition require, so that those receiving a transplant will know that they will be two halachic people, Hatzolah needs to know that they cant stop CPR, etc.

    I am not sure how to respond to your last paragraph. The RCA published a paper in which the medical section is, as I have demonstrated, very biased. But now you say that the information opposing brain death is relevent, but information supporting brain death is irrelevent. First of all, unless you are making the claim that the chief rabbinate are outside of Halacha, then the Halacha does contain brain death criteria, so ALL information needed to understand that is relevent. In fact, the title states that it is an “evaluation of the neurological brain death standard.” How can you help people evaluate it if you withhold facts? Furthermore, you haven’t explained why outright falsehoods, inaccuracies, and misleading statements were necessary. And finally, if the purpose of the paper was as you state in that last paragraph, why didn’t the RCA just title the paper “reasons we think the brain death is wrong”, rather than something that leads people to believe that you were being objective and evenhanded. What is even more disappointing is the continued insistence that this is an ‘education document.’ It actually is designed to educate people in a certain direction, and you should have the integrity to acknowledge that fact.

    Doron Beckerman

    the criteria for death have changed over the years and centuries and I would not be surprised if they continue to change as science and the understanding of life changes. I cant exactly see how that will happen, but I would not be surprised if things change.

    Regarding Rav Schachter and the Rambam- The plain meaning of the Rambam is that if one of the organs is missing, the person is dead. rav Shachter says that if one of the organs is missing, the person is a gosses. These are not the same.

    Thanks to those who have assisted in clarifying my views. By the way, I am tired of seeing Dr. Stadlan(and I am certainly not a rav) so referring to me as Noam is fine(unless of course you are a patient, in which case you have another set of difficulties.)

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

    This is a video interview with R. Dovid Feinstein. I think it is very clear from here that, unlike what R. Gil asserted, R. Tendler is not a daas yachid in America. As another commenter pointed out, R. Gedalia Dov Shwartz agrees with him, and as the video shows, R. Tendler agrees with his father-in-law R. Moshe.
    This also shows that Rav Fogel’s “centuries of jurisprudence” are entirely fictional. Fist of all, there are multiple girsas in the gemara about which signs of life to look for. According to the Rif’s girsa the heart is not mentioned and the gemara only talks about the diaphragm and nostrils. R. Feinstein says you dont need to care about the heart pumping because in Eastern Europe where he was they only checked the nostrils (independent breathing) but not the heart.

  96. R’ Doron Beckerman,

    Yi’yasher kochakha – well said, precisely. To be alive, a human being must maintain both of the anatomical characteristics that determine birth: the human being must possess a head and the majority of the remaining body. But the head need not necessarily be physiologically functional [at least not for position (iii), and to a great extent not even position (ii)]. Anatomical existence of the head suffices.

    R. Hershel Schachter’s particular analysis of the evarim shehaneshamah teluyah bahem appears (with all due reverence exhibited before the great luminary R. Schachter) to be inaccurate, as demonstrated by Dr. Daniel Malach’s article at http://www.medethics.org.il/articles/ASSIA/ASSIA65-66/ASSIA65-66.17.asp

    As Dr. Malach demonstrates, there is no reason why the heart, brain and liver should be identified as the sole evarim shehaneshamah teluyah bahem; others exist as well. Moreover, it is absurd to claim that patient in liver failure might be dead; Menachot 37a establishes that consciousness is automatically a sign of life. But – although his reasoning is problematic – the *conclusion* of R. Hershel Schachter that a brain dead patient be regarded as alive because of safek piku’ach nefesh appears entirely correct, as one can gather from positions (i), (ii) and (iii). To this effect, I would compare R. Schachter’s analysis to that of Rabbi Shimon bar Yochai in Makkot 17b or that of Rabbi Yehudah Hanassi in Shevu’ot 7a. In both cases, Rava praises the brilliance of the Tanna at hand, even though the Tanna is ultimately refuted. By the same token, R. Schachter’s analysis is brilliant and actually points us to the halakhically normative conclusion (that a brain dead patient be regarded as alive as a matter of safek piku’ach nefesh) even if his reasoning has been refuted. Moreover, my own small analysis (which, obviously in my own pretentious bias, I regard as normative) would not have been possible without the inspiration of R. Schachter’s analysis. So, R. Schachter’s analysis accomplished much good, even if it needs to be reformulated. [I say this with reverence, recognizing that I am not even a piece of dust compared to a mighty galaxy when speaking before R. Schachter.]

    So, yes: a disembodied heart or liver is no longer associated with the donor, since the disembodied heart or liver has separated from a living human being (as defined by an anatomically existing head as well as the majority of the remaining body).

  97. MDJ on December 9, 2010 at 3:35 pm
    Dr. Bill,
    You say that poskim naturally create definitions. All I’m saying is that they need to explicitly articulate them. As to your second paragraph, I have no idea what you are getting at.

    I agree poskim should articulate them and they ought be used as operational criteria in a context judged similar to that where they were formulated but not as an assumed jumping off point for a general definition.

    my second paragraph was meant to illustrate that even absent an agreed upon (precise) halakhic definition of death, a posek might decide an unquestionably brain dead individual(, who is not coming back and has no sensation) may be buried or have his organs harvested.

  98. FYI Rav Dovid Feinstein stated a few years back at the Agudah Convention that his father’s shita was that death occcurs at cessation of breath. He stopped short of using the “brain death” terminology, but if in fact the body is incapable of breathing once there is brain stem death, then there is certainly no dispute as to Reb Moshe’s shita according to the two most qualified people to state such definitively.

  99. Dr. Bill,
    I will only say now that I really no longer understand you.

  100. MDJ, not sure this will help,but here goes:

    1) this is a meta-halakhic issue that should be viewed in that context.

    2) there are many/some areas of halakha that lack precise definitions. this ought not be surprising given the nature of a mimetic tradition.

    3) conflating operational criteria with a precise definition is not uncommon.

    4) poskim often create definitional constructs to explain how A and B justify different halakhic treatment. Such constructs ought not be taken as precise definitions. (see Exclusiveness and Tolerance (i think third chapter) for this type of issue in an unrelated/different context. (from a logical point of view by Quine, would also be helpful.)

    5)RMF tells us to use 4.4 ounces (i seem to recall) for a reviit. 4.4 ounces does not define a reviit! In that context conflating the operational construct with the definition may not be all that consequential. In this context, that may not be the case.

    6) poskim and others often recoil from a lack of definitional precision, needlessly imho.

    7) I shudder to use the analogy: remember the supreme court ruling on pornography.

    8) Knowing the proposed structure of a definition like: X is defined by condition Y equalling Z, is not the same as being able to determine the value of Z precisely. Poskim can decide to adopt the definition without agreeing on how to define Z precisely. Loosely speaking, we may know Z to one decimal place today and two in a hundred years.

    9)i may acknowledge a boundary even if its precise location is unknown or fuzzy.

    10) I tend to think carefully about areas where the ability to be more precise was not possible in earlier times. anachronistic thinking is rarely productive and should be avoided.

  101. Glatt some questions

    Given R. Dovid Feinstein’s clear explanation of his father’s position, it is a mystery to me why people still insist that R. Moshe Feinstein believes that halachic death is defined by the heart stopping to beat, and not by what R. Dovid maintains he believed, as shown in the video testimony.

  102. Noam Stadlan,

    I don’t think that it is beneficial to construct this reductio regarding the implications of circulatory criteria for death. As MDJ pointed out, lack of circulation does not define death, it is merely a criteria for determining death – to which I would add: in normal cases. The idea that circulation itself is life, which leads to your questions 1 and 4 is misplaced. Even if the RCA paper is guilty of this same conceptual confusion by conflating signs of life with life itself, that is not good reason for pursuing this line of critique.

    The question should be whether inconsistencies arise now, in the very cases under discussion, when circulation is used as a criterion for determining whether a person who up until recently was recognizably and incontrovertibly alive is now dead.

    Questions 2 and 3 are also not really germane as there are a number of influential poskim who favor cardiac/circulatory death but allow withdrawal of life support from a brain dead patient; even though they consider him alive now, there is no requirement to artificially prolong his life. So if there is an inconsistency, you should be able to find it within these two rulings of RSZA, for example, without recourse to these cases. That might be a fruitful avenue of critique to consider instead.

    As to 5, clearly we don’t go around asking whether people who we are conversing with meet certain criteria for being alive. Again, the mistake is to confuse criteria with the state itself. There are obviously multiple overlapping criteria for determining life, most of which we never apply conspicuously, and the absence of one of them is not determinant if others are present.

  103. Doron Beckerman- Having thought more about your comments, I would like to respond a bit more fully. The Rambam lists some organs, and then states that this holds for every ‘ever’ that if removed from a living being it will die. You interpret this as meaning that missing the ‘ever’ means eventual death, it is not a definition of immediate death. However, Rav Schachter uses the presence or absence of these organs as the determinents of death. While he holds that there is a safek if it is one or all three, the implication is that it is possible that missing just one means death, and therefore defining the Rambam as meaning eventual death contradicts this understanding. Absent Rav Schachter’s use of it, I would agree that the plain meaning of the Rambam could, but does not necessarily have to be interpreted as meaning eventual death.

    I did not read rav Schachter’s position in B’Ikvei Hatzon, but rather based my article on the English paper in Journal of Halacha and Contemporary Society, and the Hebrew paper in Assia. I don’t recall if his position that the Rambam’s girsa is the same as the gemara appears in either of those articles. If I misrepresented R. Schachter I apologize. I think there are enough other arguments that this point will not be missed. It also would be interesting to know the basis for his assumption. I would add that the Rambam establishes a category of ever sh’hanishama tiluya ba and that, as R Spira pointed out, other organs could fit in that category, and it would be incumbent on R. Schachter to explain why just the three he discusses.
    also, thank you for the words of appreciation and to all who have commented so far.

  104. With regard to the lager point you make:

    You say that the RCA paper ought to put forth a definition of what a human being is- and I assume you mean a biomedical halakhic definition. This is problematic given that halakha appears to see life as at least in part the activity of a vital metaphysical soul (sure you could come up with a naturalistic non-dualistic account of ‘nefesh’, but to claim that this was the traditional understanding is absurd). If the notion of “nefesh teluyah bahem” is partly metaphysical then no naturalistic conception of what a human ‘is’ (distinct from naturalistic criteria to determine whether that ‘is’ still exists) will be relevant.

    It is entirely conceivable that chazal thought that until three major organs ceased functioning the soul was still attached to the body and therefore the person was still alive, and lack of circulation or decapitation was the surest criteria at their disposal for determining the cessation of function. Perhaps they were wrong on the relationship between circulation and organ function – but this at will only mean that these criteria were wrong – that is immaterial to the definition itself.

    I am not trying to inveigh against brain death as halakhic criteria. I only want to point out that adopting these criteria presupposes (as much as circulatory criteria) some never fully articulated halakhic idea of what a human being is – and it is entirely possible for that idea to diverge completely from everything that neuroscience tells us about what makes us human.

    One could imagine a not too distant future in which PVS patients are subject to functional imaging scans to and declared legally dead based on neurological criteria if the higher regions of the brain exhibit no integrated functioning. Will these people then be considered halakhicly dead if they are no longer medically alive?

    The only way to claim that halakha in this matter is forever compatible with the current scientific consensus is to believe that chazal were simply pegging their criteria on the existing contemporary scientific conception of life. That science was moored in a dualism that is no longer scientifically viable, but it is a dualism very much operative within our religious conception of a person. As such, this is not an area where we can easily disentangle premodern science from religious dogma. The problem is therefore much deeper than people often recognize.

  105. Doron Beckerman

    R’ Spira,

    Thanks for the link. I think Dr. Malach is correct in his assertion that there is no basis for saying that the list of these three limbs is comprehensive. I recall seeing the lungs mentioned as well in this context.

    However, ISTM that RHS is based on the Gemara in Temurah 11b (cited by Dr. Malach) where there is a three way machlokes whether Eiver Shehaneshamah Teluyah Bah is defined as one that will render the animal a Tereifah, a Neveilah, or Meisah. The Rashash to Temurah 11b there holds that the Rambam consistently (i.e. regarding the Sugya in Temurah and Arachin) decided the Halachah in accordance with the last opinion, and thus removal of one of these limbs results in death. [See Rashash there דבר שמתים מיד בנטילתן], and therefore does not mention מן הארכובה ולמעלה Thus Dr. Malach’s reductio ad absurdum to ניקבה הושט is unwarranted.

    (Dr. Malach’s assertion that the Gemaros in Arachin and are not discussing death, but determining the Daas of the Noder, is untenable based on the Sugyos, such as Kiddushin 7a, ואכמ”ל.

    Now, this is against what I suggested to Dr. Noam earlier, that the Rambam is only saying that the removal of these organs will result in eventual death as in a tereifah . I was relying on the Pashtus of the Gemara in Arachin, which the Rambam apparently rejects in favor of the third opinion in Temurah, that the organism is מתה, see Rashash there.

    It follows, then, that the removal of one of the אברים שהנשמה תלויה בהם results in instant death, as the Rashash states. That means that one without a heart, liver, lungs, or a brain, is dead. If one wishes to avoid the admitted absurdity of claiming that a walking,talking person without a liver is dead (which RHS is willing to accept as an option, as he considers it equally absurd to say that the human organism is dead when his heart is pumping blood through the body), then one must accept that death is a process (I didn’t find Dr. Malach’s counterproofs to this convincing enough), and the Gemara is saying that the process of death has begun, i.e. goses.
    This actually accounts pretty nicely for the Rambam, despite, as per the Rashash, paskening like Rav Sheishes that אבר שהנשמה תלויה בה means that she is מתה, he nevertheless uses the לשון of ימות and, in the next Halachah אי אפשר שינטל חציו ויחיה – and not הרי הוא מת.

  106. Dr. Stadlan,you write:
    “Dfdf. Consider a body that has not had circulation for over an hour. Everyone would attach the label of dead to this body. I could attach an artificial heart o the body and now itnwould have circulation. By your statement it is alive.”

    This sort of argument you make in the article as well, but it is a non-sequitur. To be clear: the following is the argument you are making here:
    (a) Halakhically, a person is not defined as “dead” as long as he has a heartbeat
    Therefore,
    (b) Anything with a heartbeat is a live person.
    (c) ‘b’ is absurd
    Therefore,
    (d) ‘a’ is wrong

    The problem here is that ‘b’ in no way follows from ‘a’. Logically, you could prove this; but I’ll just give you an argument with a very similar structure to the one you are making which I hope illustrates that it is fallacious:

    (a) Shabbos is not over so long as Tzeis Hakochavim has not occured yet.
    Therefore,
    (b) Whenever tzeis Hakochavim has not occurred yet, it is Shabbos.

    [‘b’ leads to the conclusion that Tuesday at 12 noon is Shabbos, so obviously it is false.]

    It should be clear why, in both cases, ‘b’ does not follow from ‘a’. Just because SHABBAT is not over pre-tzeis hakochavim — just because a PERSON is not dead absent the cessation of a heartbeat– it doesn’t follow that all time pre-tzeis hakochavim is shabbat, or all things absent cessation of a heartbeat are live people.

    You further write:
    “Also, it is necessary to define what exactly a body consists of. Does a body need a brain in order to be considered a human body? The point I have been trying to make is that we make assumptions about what a body is without precisely defining it. And, when we define it precisely, it doesn’t make sense unless we define a body by the presence of a potentially functioning brain”

    I’m not sure I understand this; how is this relevant to the alleged incoherence of the simple statement:
    Halakhically, a person isn’t dead so long as he has a heartbeat.

  107. Dfdf,

    That is the whole point. Poskim have posited precise methods for determining when Shabbos is over. Poskim do not say *well. erm. I gess Shabbos is over now…* They have a precise method. We have to be similarly precise when employing the circ criteria, and it is not acceptable to say *we know it when we see it.*

  108. Dr. Bill wrote:
    >>MDJ, not sure this will help,but here goes:

    This I can respond to

    >>1) this is a meta-halakhic issue that should be viewed in that context.

    Agreed.

    >>2) there are many/some areas of halakha that lack precise definitions. this ought not be surprising given the nature of a mimetic tradition.

    True

    >>3) conflating operational criteria with a precise definition is not uncommon.

    True.

    >>4) poskim often create definitional constructs to explain how A and B justify different halakhic treatment. Such constructs ought not be taken as precise definitions. (see Exclusiveness and Tolerance (i think third chapter) for this type of issue in an unrelated/different context. (from a logical point of view by Quine, would also be helpful.)

    I am a philosopher, no a historian, so I have only read Quine, not KAtz. But, I do not recall anything like a distinction between definitional constructs and definitions in Quine, though it’s been a while. However, you’re citation of Quine leads me to think you may be taking me to be making a much stronger claim than I actually am. I am not claiming that we must provide some sort of logicially rigorous definition of “death”. I am only asking for an account of what it is to actually _be_ dead, (possibilities include inability to be aware any more, inability to be able to maintain homeostasis and prevent decomposition of the body or,as MJ noted above, loss of the immaterial soul’s attachment to the physical body) as opposed to what has been on offer until now, namely, physical criteria for identifying a dead body. Although I have not said as much until now, I actually agree with MJ. I think that for Chazal, death was loss of the soul. That is why I really don’t think that any of the physical criteria provided for identifying a dead body directly express what it is to be dead. But until we know what chazal meant by being dead, we cannot begin to assess which currently accessible measures show us when a person is dead.

    >>5)RMF tells us to use 4.4 ounces (i seem to recall) for a reviit. 4.4 ounces does not define a reviit! In that context conflating the operational construct with the definition may not be all that consequential. In this context, that may not be the case.

    Why doesn’t 4.4 ounces define a revi’is for RMF?

    >>6) poskim and others often recoil from a lack of definitional precision, needlessly imho.

    This is to general an assertion to respond to.

    >>7) I shudder to use the analogy: remember the supreme court ruling on pornography.

    Actually, I suspect you don’t know it when you see it. Or rather, you only know death long after it has happened. What we are trying to do here, though, is identify just when it happens. this may be impossible within a halachic framework, but that needs to be demonstrated.

    >>8) Knowing the proposed structure of a definition like: X is defined by condition Y equalling Z, is not the same as being able to determine the value of Z precisely. Poskim can decide to adopt the definition without agreeing on how to define Z precisely. Loosely speaking, we may know Z to one decimal place today and two in a hundred years.

    As I indicated above, I am asking for an account of what it is to be dead, not a binary function whose input is a bodily state and whose output is alive or dead.

    >>9)i may acknowledge a boundary even if its precise location is unknown or fuzzy.

    The possibility that death is a vague concept in the formal sense is real, not sufficiently addressed in either the philosophical or halachic literature. However, this is an actual position that must be elaborated and defended, not simply asserted. Furthermore, I don’t think that it was actually vague for chazal. I think that they thought that there was a moment when the soul left the body. However, they did not have a method for determining which moment that occurred with absolute precision (nor do we) nor did they need one in general. When they did need to know, esp. for tum’ah issues, they provided rules for resolving the safek. I should note that I agree that these rules may have had little or nothing to do with their precise concept of death and much more to do with methods of resolving a safek when they knew that death occurred within, say, a five minute window, but not precisely when it occurred. But unless we know what they meant by death, we do not know whether we have better tools for resolving such s’faikos.

    >>10) I tend to think carefully about areas where the ability to be more precise was not possible in earlier times. anachronistic thinking is rarely productive and should be avoided.

    As I indicated just above, I agree. But having a concept of what it is to be dead is not, in my opinion, anachronistic precision.

    How I wish I had MJ ability to express myself with clarity in a blog comment.

  109. MJ- The implications of what you are saying is that in every case where we are trying to decide if a person is dead or not, we first have made a brain death assessment to decide if we need to reinstitute circulation(with a pump or cpr). If the person is brain dead, there is no need to reinstitute circulation. So now it is apparent that before any circulatory declaration of death there has to be a neurological assessment to determine if circulation should be reinstituted. This is a step in the right direction. However, the circulation criteria claim that you are dead when the circulation has irreversibly ceased. Since a pump can always be attached, it is never irreversible. You have only addressed when you dont have to attach it, but that doesn’t mean he is dead, only that you have no obligation to intervene. You still haven’t told me how you can say he is dead.(this parallels the ‘permanent’ vs. ‘irreversible’ discussion in determining patients dead by cardiac criteria, discussed somewhat in the President’s Council White Paper. probably best articulated by Bernat). On a practical level, you have now mandated that Hatzolah and others have to do formal brain death testing before discontinuing circulation, or stopping CPR, something that cannot be done outside a hospital.

    Dfdf- If you hold that circulation is the only criteria for life, that is what you get. For example, there is a person with a heartbeat. I measure a pulse it the wrist. I ask you, there is a pulse in the wrist, is he alive? you say yes. I cut the arm off, attach it to a pump. The rest of the body is destroyed. I ask you, there is a pulse at the wrist, is the person alive? You have a number of options:

    1. say yes, he is alive
    2. say that the pulse at the wrist was only an indicator of other function or blood flow, and that the circulation was only an indicator of other functions.
    I would agree that 2 is more attractive. However, defining 2 is what trips up those who do not want to acknowledge the brain as central to life. They cannot define that “something else” in a cogent fashion without using the word brain. Unless they can define 2 in a practical fashion, they are stuck with 1. They can also say that the arm is no longer a body, but then they have to define what they mean by body, which winds up being pretty much the same as defining that ‘something else’.

    The logical fallacy in your argument is that we start with a body, and so in your analogy, we start knowing it is Shabbos. Tuesday is not an option.

  110. william gewirtz

    DFDF writes:

    …The problem here is that ‘b’ in no way follows from ‘a’. Logically, you could prove this; but I’ll just give you an argument with a very similar structure to the one you are making which I hope illustrates that it is fallacious:

    (a) Shabbos is not over so long as Tzeis Hakochavim has not occured yet.
    Therefore,
    (b) Whenever tzeis Hakochavim has not occurred yet, it is Shabbos.

    [‘b’ leads to the conclusion that Tuesday at 12 noon is Shabbos, so obviously it is false.]

    It should be clear why, in both cases, ‘b’ does not follow from ‘a’. Just because SHABBAT is not over pre-tzeis hakochavim — just because a PERSON is not dead absent the cessation of a heartbeat– it doesn’t follow that all time pre-tzeis hakochavim is shabbat, or all things absent cessation of a heartbeat are live people.
    ————————————————
    Then Jerry writes:

    Jerry on December 10, 2010 at 8:02 am
    Dfdf,

    That is the whole point. Poskim have posited precise methods for determining when Shabbos is over. Poskim do not say *well. erm. I gess Shabbos is over now…* They have a precise method. We have to be similarly precise when employing the circ criteria, and it is not acceptable to say *we know it when we see it.*
    ————————–

    There is a machloket if the appearance of stars or a level of darkness is the basis for a definition and which is just an approximation useful to determine the end of shabbat.

    No posek ever said that shabbat continues if we cannot observe stars! This whole discussion about Tuesday is completely off the mark for two reasons: a) stars appearing but obscured by clouds does not extend shabbat (except because of safek absent other criteria) and b) stars not appearing does not necessarily imply it is still shabbat if other conditions are met.

    Jerry, precision and accuracy are not the same thing. I dare say we do not have an accurate definition of the end of shabbat to even a single decimal place. we have many operational criteria. Whatsmore, only in the last 150 years, we may have discovered a way to formulate a precise definition. i wonder if the situation with death is not similar? unlike shabbat where such precision is not necessary, i assume in this context it s critical.

    in this much less complex area, poskim have on occasion taken a criteria, treated it as definitional, and then used it as a basis for further conclusions and reached a questionable psak. There are some good examples of such psakim (used in many communities and strongly defended by some/many/perhaps most poskim) that would require lengthy discussion and debate.

  111. MDJ, thanks for your extensive comments.

    Quine does not discuss except by implication. I actuallty used this type of example in a class i taught 4 decades ago using his book.

    on 5. RMF was clearly providing a way to determine, not a definition using egodlim as his basis.

    on 6. there are examples in psak where the need for definitional (not operational) precision is assumed even when it may not be needed or obtainable.

    on 7) i agree; perhaps we have criteria for when u can be treated as dead as opposed to being dead!

    on 9-10) here you must read katz. and this may go to the heart (no pun intended) of the matter. precedent in terms of psak is critical to a mesorah; precedent in terms of how a posek conceptualized may not be. this moves this debate into a broader area on where we are obligated to treat chazal as “infallible.”

  112. Dr. Bill,
    I will definitely read Katz. Re R. Moshe, are you saying that he wasn’t simply providing a conversion between thumbs and ounces?

  113. MDJ,
    Yes. In reality, i do not know what his conceptual views were. But in practice, he was asserting that we do not have a defintion just a method to determine the halakha by going out and measuring. he actually measured egodlim, relying neither on the CI or (disagreements about) Rambam! IMHO, that is the essense of a posek.

  114. Dr. Stadlan

    “If you hold that circulation is the only criteria for life, that is what you get.”

    What I am trying to explain is that this proposition,

    ‘Halakhically, a person is not dead if he still has a heartbeat’

    does not lead to this proposition

    ‘circulation is the only criteria for life.’

    I am honestly a little puzzled that you don’t see that.

    Also, I now understand that you sometimes use the word ‘body’ to mean ‘live human being’, or ‘live person’.

  115. Let me put it this way. There are many poskim who seem to say something like the following:

    (a) ‘People do not lose their live personhood (their status as a live person) as long as they have a heartbeat.’

    It should be clear (I hope), it does not follow from this that anything with a heartbeat has live personhood. Even if that thing is a body which formerly served as the abode of a live human being (not to be too philosophical here). In other words, if someone died– his heartbeat ceased and everything– it does not follow from ‘a’ above that his body could be rendered alive by connecting it to a heart/pump of some sort.

  116. General comment: R’ Gil very well summarized my view of what the paper argues for. See his comment of December 9, 2010 at 5:19 pm

    @Jon, @Joseph Kaplan & @MDJ: Whether certain facts are or are not relevant in reevaluating the existing jurisprudence is a question for jurists. IOW, poskim. More to the point, just because using certain tools we can demonstrate that a certain blood flow continues after death does not mean that there is no halakhic determination of death. There is one, as for centuries chevrot kaddishot have determined when someone was gone. There may be situations where the old determinations don’t work well, so this is where new jurisprudence gets written, which leads to the above general comment.

    @Lawrance Kaplan, @Noam Stadlan: I have no problems with the way the blogosphere operates, but when it gets repetitive, I don’t fell like wasting either my time or that of future readers of these comments.

    @Jerry: there is a fourth possibility: we maintain the old standard by adapting some definitions.

    @Mor: Some of the claims you saw in that video are discussed and either rebuffed or seriously contested in the Vaad Halacha’s paper. You may enjoy reading the paper even more, as you seem to already know some of the background.

    @Noam Stadlan, re: the Rabbanut: The RCA paper explicitly evaluates the Rabbanut.

  117. Dfdf *It should be clear (I hope), it does not follow from this that anything with a heartbeat has live personhood.*

    Then there has to be something in addition to the heartbeat that determines personhood. Brain, perhaps?

  118. lawrence kaplan

    Arie Folger: But poskim can determine whether ostensibly relevant facts are indeed relevant or not only if they are first presented to them fully and accurately.

  119. R. Folger,
    I guess the question is whether the document was supposed to give its readers the tools to evaluate the arguments, or just to tools to have a basic understanding of what the document said so that they could do what it told them to do. Since it was explicitly not a psak, the former seems necessary, and was not provided. Your responses seems to indicate that you feel it was supposed to accomplish the latter, in which case the information provided was inadequate, but the overall presentation of the document was disingenuous if not dishonest.

  120. Rabbi Folger-
    Please simply answer the questions I have posed, or admit that you cannot answer them. I have pointed out that the circulation definition of life/death is actually not used with regard to transplants and many other situations. In fact, since CPR provides circulation, a person never really has irreversibly lost circulation, it can always be restored by pushing on the chest as long as the arteries are open. If you define death as the irreversible loss of circulation, you have a problem. If you are unable to provide cogent answers, please acknowledge the fact, rather than going on tangents. I am not asking you to throw out any mesorah, just answer a few questions. If you cannot answer them, perhaps some other members of the Va’ad Halacha would be willing to do so. Regarding the content of the paper, I again ask why the paper contains errors, and misleading statements. I also ask why the title and indroduction make it appear that the paper is objective and evenhanded, and doesn’t state that the purpose of the paper is to list the problems with ‘brain death’. It may be educational, but when you are only presenting one side, many would call that something else.

    You are correct that this is getting repetitive, because you are not answering questions directly. If you have a question for me, please feel free to ask, and as I committed, I will give you a direct answer.

    Dfdf- ‘People do not lose their live personhood (their status as a live person) as long as they have a heartbeat.’
    As has been pointed out, you also have to define what else is needed to have the status of a live person. If you don’t do that, all you have to go on is circulation. If you include an assumption that if there is circulation in one part there is circulation in the entire body, then you dont have to define precisely what you mean with the word body. That was the situation 60+ years ago. But now, since you can have circulation in just one limb or just one organ, just using circulation results in an arm with blood flow being considered a person. To avoid this result, it is necessary to define what you mean by a person. So the definition of a person cant be an arm, a leg, a kidney, or even a heart, unless you want those parts, if they were existing on their own, to be considered a live person. The only piece of anatomy that makes sense to be used as a definition of a person is brain. But if you do that, you have to acknowledge that without a brain, there is no person, which winds up being a neurological definition of life and death, not a circulation one. I think this is the reason Rabbi Folger has refused to answer my questions, because they cannot be answered coherently without defining a body as something with a potentially working brain.

  121. Here is how the questions are answered if you accept neurological criteria for life and death.

    1.Please define what tissue and function need to be present for Halacha to recognize a collection of tissue as a human being. A human being is human tissue that includes a potentially functioning brain.

    Please give the Halachic definition of death. A person is dead when they have irreversibly lost neurological function(as outlined in the article.)

    Is the only Halachic consideration circulation? no

    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. The recipient is the one with a potentially functioning brain

    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. Life is deemed present as long as there is a potential for neurological function as described.

    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? Not applicable to those who hold by cessation of neurological function.

    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 person is dead when he has irreversibly lost neurological function. If you come across him in the first few seconds, he obviously is alive. If you know it has been more than 10 minutes and he has no observable neurological function, he is dead. If there is any question, you hook up the machines and apply criteria for ‘brain death’. If you hooked him up 2 hours after the machines are stopped, you are ventillating and providing circulation to a corpse.

    OK. time for answers from those who do not hold by the neurological definition of life and death.

  122. Thank you, Dr. Stadlan, for your kind words, and for raising the excellent question of cardiopulmonary resuscitation as well as artificially maintained circulation (such as by extracorporeal membrane oxygenation – ECMO).

    In IM, YD 2:146 (paragraph that begins with the words “umah shekevod torato harav dan lehakel), RMF addresses the issue of resuscitation. He says that the criterion (or criteria) of death as established by Chatam Sofer only holds (or hold) true when it (or they) is (or are) irreversible. If it (or they) is (or are) reversible, then the criteria have not been meant. This RMF infers from Chatam Sofer’s dismissal of the two cases of misdiagnosed death recorded by the beraita in Semachot 8:1. Such cases of auto-resuscitation are so rare, says Chatam Sofer, they are like the story of Choni Hami’agel sleeping 70 years in Ta’anit 23a (-presumably meaning that if a physician would have examined Choni in suspended animation during those 70 years, he would have erroneously pronounced Choni dead and would have called the chevra kadisha to bury Choni), events that occur only once in a thousand years. [Indeed, the Chatam Sofer’s mathematics appear to be precise, since the Chatam Sofer was writing about 3000 years after Matan Torah (the time at which the Jewish People was given a definition of death), and he could only point to three cases of auto-resuscitation: the two in Semachot 8:1 and the one in Ta’anit 23a. Thus, this averages to one case of auto-resuscitation every 1000 years.] Once in a thousand years is so vanishingly insignificant a statistical possibility that it does not even rise to the threshold of safek piku’ach nefesh (since once a millenium is not even a mi’uta dimi’uta), and thus Chatam Sofer demands that death be pronounced (and that interment commence) after stillness of the patient like a stone, cardiac arrest and respiratory arrest.

    RMF continues (writing in 1970) that, nowadays, medicine has clearly changed, as resuscitation is a common quotidian reality. Therefore, reapplying Chatam Sofer’s principle, we are no longer allowed to bury* a patient, even if the patient is in cardiopulmonary arrest, if resuscitation is possible. [* = There is a printer’s error in the Iggerot Mosheh. It says “vilakhen yihiyeh assur likbo’a li’ish kazeh”. This is an obvious misprint which should be changed to “vilakhen yihiyeh assur likbor li’ish kazeh”.]

    RMF reiterates (writing in 1976) the significance of resuscitation in his third and fourth paragraphs of IM, YD 3, no. 132. There he writes that in the cases of trauma or drug overdose, where the Chatam Sofer’s criterion (or criteria) of death is (or are) reversible through resuscitation, the patient cannot be pronounced dead.

    Actually, RMF’s ruling regarding resuscitation was enunciated by an earlier rabbinic scholar (-though someone who was apparently “ahead of his time” since medical history records do not appear to indicate that resuscitation was a clinical reality in that era), viz. R. Shmuel Chaim Eistein, in his gloss upon the Shu”t Hachadashot of Sha’agat Aryeh, published posthumously (by R. Eistein) in 5634 (corresponding to 1874). Sha’agat Aryeh, in responsum no. 6, discusses the prohibition against delaying the burial of a corpse. Burial must proceed with swiftness in order to comply with Deut. 21:23, explains the Sha’agat Aryeh. However, in his footnote (at the end of siman aleph of this responsum), R. Eistein submits “But such is not what people do, for the new science of medicine has demonstrated that there are people who appear to be dead after enduring gessissah, whereas in truth they are actually alive and upstanding and can be restored to their original health, and anyone who prematurely buries them is shedding blood”. R. Eistein’s comments are obviously contextually superfluous, because there was no resuscitation in his time, but they set a precedent for RMF’s subsequent ruling when the time for resuscitation had actually come.

    As Dr. Stadlan states, resuscitation techniques have become so sophisticated in 2010 that it is no longer clear at what point cardiac arrest ends human existence. In the HODS video recorded at http://www.hods.org/English/h-issues/YouTube_video%20pages/OrganDonationQA_06.asp
    Dr. Robert Truog says “ECMO is a form of heart-lung bypass… You basically cannot die in an intensive care unit without permission, if the clinicians are willing to use ECMO, because with ECMO we can keep anybody alive. And we put canulae – large bore tubes – into your vessels, and we take over all of your heart and lung function.” [0:40-1:03 into the recording].
    If so, when does death occur according to Halakhah [if one is to propose, as I do, that positions (i), (ii) and (iii) are all equally plausible and therefore all need to be satisfied out of doubt]? My guess would be that death could only be pronounced only at the time when, even with ECMO, circulation could no longer be maintained. [Presumably, this means when the corporeal arteries have become totally useless, but I am not a physician so I don’t know the exact details.] How to calculate that is indeed a serious problem for every physician who signs a death certificate and every chevra kadisha member.

    Arukh Laner to Niddah 69b (s.v. gezeirah shema yit’alfeh) asks how are we ever allowed to bury a body before it decomposes, when the gemara in Niddah 69b establishes that observers only know for sure that a body is dead upon decomposition. Shouldn’t considerations of safek piku’ach nefesh forbid us from burying the patient until his body putrefies? Arukh Laner answers that those who are occupied in the interment of the body are experts in the signs of death, and for them there is no need to wait until the body putrefies. Essentially the same answer is offered by the Chatam Sofer (paragraph that begins with the words “aval kol she’achar shemutal ki’even domem). [See also Shu”t Chaim She’al II, no. 25 (sec. 2), where Chida reports that his son asked him how burial can occur before decomposition. This question is likewise cited by R. Jacob Samson Shabtai Sinigalia in his Matan Biseter commentary to Niddah 69b. Presumably, Chida and Matan Biseter would rely on the same answer as Arukh Laner and Chatam Sofer.] The implication of the words of the Arukh Laner and Chatam Sofer appears to be that, if we were ever to become non-experts in the signs of death, then we would indeed be forbidden to bury a patient until he decomposes, due to considerations of safek piku’ach nefesh. And indeed, so rules RMF in IM 2:146 (paragraph that begins with the words “vihiyeh nichah lifee zeh”) and 2:174 (sec. 2): If we were not experts in the signs of death, we could not bury until decomposition of the body.

    If indeed, then, our methods of artifical circulation have become so sophisticated that it is no longer clear when circulatory arrest is irreversible, it would have significant implications on our ability to pronounce patients dead according to Halakhah.

  123. To supplement the above approach (though not necessarily to support it), here is an article that appeared in the Montreal Gazette (an English language daily newspaper) on June 11, 2008, p. A19:

    Article Title: A ‘corpse’ that revived has sparked debate about when a person is dead
    Article Subtitle: When is ‘time of death’?
    Author: Estelle Shirbon (Reuters)

    Text of Article: PARIS – The case of a man whose heart stopped beating for 1.5 hours only to revive just as doctors were preparing to remove his organs for transplants is fuelling ethical debates in France about when a person is dead.

    The 45-year-old man suffered a massive heart attack and rescuers used cardiac massage to try to revive him without success before transferring him to a nearby hospital.

    Due to a series of complex circumstances, revival efforts continued for longer than usual for a patient whose heart was not responding to treatment, until doctors started preparations to remove organs.

    It was at that point that the astonished surgeons noticed the man was beginning to breathe unaided again, his pupils were active, he was giving signs that he could feel pain – and finally, his heart started beating again.

    Several weeks later, the man can walk and talk.

    “This situation was a striking illustration of the questions that remain in the field of re-animation… and what criteria can be used to determined that a revival has failed,” says a report on the case, published online by an ethics committee.

    The case has stirred debate among medical professionals and daily newspaper Le Monde yesterday dedicated a full page to the subject under the headline: “The organ donor wasn’t dead”.

    “What is under consideration here is the status of a person, whether they are a patient who can be resuscitated or a potential (organ) donor,” said the ethics committee report.

    The hospital where the man was treated is one of only nine in France that are allowed to perform organ transplants on patients in cardiac arrest, in very specific conditions, under a pilot program launched in 2007. Elsewhere, organ transplants are possible on other categories of patients under older rules.

    The program, which was approved by the French agency in charge of bio-ethics, aims to help reduce the number of people waiting for a transplant by making it possible to take organs from new categories of patients.

    Le Monde said more than 13,000 people are waiting for transplants in France and 231 died last year as a direct result of the lack of a donor. The newspaper said the pilot program had already yielded an extra 60 organs.

    Assistance publique-hopitaux de Paris, a body that runs public hospitals in the Paris region, has set up a committee specifically to discuss ethical issues arising from the practice of transplants on people in cardiac arrest.

    The committee, made up of medical professionals involved in the revival of heart attack patients as well as organ transplants, held lengthy discussions on the case of the man on Feb. 19 and a summary was later published on the AP-HP website.

    “During the meeting, other re-animators… spoke of situations in which a person whom everyone was sure had died in fact survived after resuscitation efforts went on much longer than usual,” say the minutes of the committee meeting.

    “Participants conceded that these were completely exceptional cases, but ones that were nevertheless seen in the course of a career.”

  124. R. Folger: A) there is a pretty good Halakhic reason to follow the brain death criteria: it’s endorsed by some major poskim!
    B) At this point, all I can say is that your response, which I’m basically regarding as “the response of the RCA,” is quite disappointing. You haven’t addressed the crucial issues that Dr. Stadlan has brought up, and you haven’t addressed the very obvious absence of any sort of discussion of those issues in the paper. I know that the RCA doesn’t think Halakha is a democratic process, and I agree – but you can’t expect us to swallow something like this whole. And hand-waving like “the fact that this criteria leads to people with water pumped in their veins being ‘alive,’ isn’t relevant” and “RHS changed his mind about this issue, therefore there’s no legal reason to pay attention to the other poskim in this regard” isn’t going to help either. If this is the RCA’s attitude, I don’t expect it to have much influence for much longer.

  125. Jerry (and Dr. Stadlan, since you approve of Jerry’s comment)-

    “Then there has to be something in addition to the heartbeat that determines personhood. Brain, perhaps?”

    Perhaps, but perhaps not– that is a question that the poskim who say that ‘a person is not dead so long as he has not lost his heartbeat’ are not addressing.

    But here arises more confusion on your part, I think. It seems to me that you and Dr. Stadlan think that if having a brain is relevant for being classified as a human being, then that somehow leads to the conclusion that the lack of (certain types of?) brain function means one is no longer considered a human being (or at least not a live one, presumably).

    But this is simply not so, and again the culprit is faulty reasoning. Setting aside the difference between having a brain and having a functioning brain (i.e. assuming arguendo that the ‘brain requirement’ relevant for classification as a human being is not ‘having a brain’ but ‘having a functioning brain’), your conclusion is still unwarranted. The brain-dead person, after all, had a functioning brain at some point in the past; thus, he certainly attained personhood. Now you may not like the following proposition ‘a’– you may disagree vehemently that it should be so– but there is nothing whatsoever incoherent or illogical or intellectually faulty in any way in asserting that:

    [a] Once x attains ‘live personhood’ (because, let’s assume, x has a functioning brain among other things), x doesn’t lose it so long as x has a heartbeat.

    We are familiar with this kind of reasoning in many contexts. For instance, it may be that a person needs to amass a certain amount of medical knowledge to become a doctor (at least, patients hope!). It doesn’t follow that the moment a person’s knowledge slips below that level, he is no longer a doctor. Presumably, if he had at some point amassed the knowledge and passed all the necessary tests and became licensed to practice, there would be some other requirement– like formally being stripped of a license or title– for that status to cease.

    So, even if having a functioning brain is relevant for live personhood (as opposed to just relying on other conceivable criteria, like being born to human parents and continuously having a heartbeat since then), it in now way follows that it is incoherent to say that ‘halakhically, a person is not considered dead so long as he has a heartbeat’.

  126. Dr. Stadlan:

    I was wondering if just as there might be detectable function of the hypothalamus after “brain death,” the same could be true after “halachically recognized” respiratory death.

  127. Correction to my last post from last night. The last sentence should read, in part “in which case the information provided was adequate” not “inadequate”

  128. “since you approve of Jerry’s comment”

    He never even mentioned my comment. I have an appointment in a bit, so no time to respond until later, but hopefully the good doctor will have a chance.

  129. “It doesn’t follow that the moment a person’s knowledge slips below that level, he is no longer a doctor.”

    Although I do have time to point out that I do not know what to make of this example. If there actually was some reason to establish formal criteria for “de-doctoring” people, then I assume this most certainly WOULD be one of the determining factors (maybe the sole one).

    In the case of death, we MUST have formal criteria for establishing death. You admit that in Noam’s test cases death cannot be determined through reference to circulation, but also state that somehow circulation is still the sole determinant of death. Both of these statements cannot be true. Either it ALONE determines death, or it does not. If circulation alone cannot account for every single case of death (as you admit to be the case), then it seems to me to lose its practical application, unless you add another element.

  130. Dr. Stadlan

    As an aside, non-sequiturs unfortunately abound in your Meorot article. To give just one example, you write with respect to Rav Shachter’s position (that possibly, halakha requires the brain, the heart and the liver to be dead in order for a person to be considered dead):

    “… since Rabbi Schachter does not make a distinction between the brain, liver and heart (all three have the same halakhic weight, none being more important than any other), a baby born with an extra heart or liver, but not the extra brain, should be considered to be two babies, although one would be a goses (having only one or two of the three vital organs). There would be no halakhic distinction between having an extra head and having an extra heart or liver.”

    If I understand you correctly, you think (have deduced?) that there is a contradiction between the following propositions:

    (a) Halakhically, a person is not dead so long as either his heart, his brain, or his liver is not dead.
    (b) A person with two livers is halakhically, a single person.

    Logically, this is simply not true. Perhaps you want to elaborate, because as it is the argument doesn’t make any sense.

  131. Thanks Jerry.

    Let me add this. Dfdf stated: Once x attains ‘live personhood’ (because, let’s assume, x has a functioning brain among other things), x doesn’t lose it so long as x has a heartbeat.

    This statement needs a definition of ‘x’. Let us assume that ‘x’ is a person with all the usual parts. Unless you specify that ‘live personhood’ is attached to a particular part of ‘x’, your statement winds up being the equivalent of ‘so long as there is a heartbeat in any part of ‘x’, ‘x’ is a live person.

    Consider an evil scientist who removes one organ or limb from a person every day, and your job is to decide when that person is dead. To make matters worse, he substitutes machines for the functions of the organs. Is the person dead after one arm is removed? both? arms and legs? kidneys? He still has function because the dialysis works. His heart is removed and he has an artificial heart. What if he removed the entire brain, but the rest of the body was still functioning?

    In this case, you started with a body that was a person. At what point is the person gone, ie dead? In an age when the parts can be sustained independent of the whole, it is necessary to decide what parts are necessary for the ‘personhood’ and which are not.

    One of my friends has also noted that I am missing some philosphical language, and I have a 260 page book to read on the topic. So, I admit I may be missing a concept. However, being a surgeon, I try to classify things in as simple terms as possible. So, once a body is a person, either he continues to be a person, or does not. Either he has the rights and privledges of a human being, or he no longer exists as a person, although there still may be biological activity in the tissues. If there is a brain with potential function, he is still alive, if there isn’t, he is not alive, he is not a person. It is like being a member of a club. As long as you pay dues, you are a member, and have all the rights of being a member. If you stop paying dues, they kick you out and you no longer are a member of the club, and dont have the rights of a member. In other words, there is a question to which there is a yes/no answer that addresses the issue: “is this person still a person?”

  132. “You admit that in Noam’s test cases death cannot be determined through reference to circulation, but also state that somehow circulation is still the sole determinant of death. Both of these statements cannot be true.”

    Actually, I’m not sure I understand what either statement means, but my guess is that I didn’t endorse either of them.

  133. R. Spira- In my paper I have a reference to a number of cases where hearts have spontaneously restarted, and there are some possible mechanisms discussed(38 cases of reported recovery after the determination of death by circulation criteria (J R Soc Med 2007; 100:552-557).)

    I would have to see what exactly occured medically but from reading the article it seems that CPR may have been continued for the hour and a half. Otherwise, they would not have been harvesting a heart or liver

    Thank you for the references and the discussion. I would make this point: You discuss resuscitation. Usually resuscitation refers to doing something to bring back cardiac function. However, CPR does provide circulation, and if available, a bypass pump can always be attached and will provide circuation. So, if the definition of resuscitation is to provide circulation, resuscitation is always possible. Ultimately as I noted briefly previously, as long as the arteries are intact, circulation is never IRREVERSIBLY lost. Therefore, if you are using the irreversible loss of circulation as the criterion for death, few are actually halachically dead when they are declared dead.

    The other question is: you have written that one has to adopt a certain position out of safek. If a posek is convinced of the validity of a position(for example, position ‘i’), are you saying that this is not an option for that posek and it is still necessary to adopt the most strict?

  134. Dr. Stadlan writes:

    “So, once a body is a person, either he continues to be a person, or does not … If there is a brain with potential function, he is still alive, if there isn’t, he is not alive, he is not a person.”

    I understand that is your position. I had thought you were saying that one who disagrees is being incoherent or illogical.

  135. Dfdf
    you stated:
    Halakhically, a person is not dead so long as either his heart, his brain, or his liver is not dead.
    (b) A person with two livers is halakhically, a single person.

    I agree that taken by themselves those two statements dont contradict. However, you are missing some other statements:

    1. Rabbi Schachter holds that a body with two heads is actually two people. In other words, an extra brain implies an extra life.
    2. As far as criteria for death(and therefore life), Rabbi Schachter doesn’t distinguish between a brain and a liver.
    3. Therefore, if a baby with an extra head is actually two people, then a baby with an extra liver also has to be two people, because what holds for brains must hold for hearts and livers.

    Once you put in the second assertion and the logical inferences, it should be clear.

  136. Dr. Stadlan

    I’m afraid something went awry here. Rabbi Schachter doesn’t say that for all questions having to do with life, death and personal identity, the brain and the liver and the heart are all identical. He said that (possibly) a person is still considered alive if one of three organs is still alive. There is no problem of any kind with him also holding that the presence of an additional brain dictates the existence of a separate personal identity (correlating with that brain) whereas the presence of an additional liver does not.

  137. Dfdf,

    Okay. You imply that you concur with the judgment that the following is “absurd”: ‘AnyTHING with a heartbeat is a live person.’ (my emphasis)

    You further claim that agreement with that statement is NOT implied by the following: ‘a PERSON is not defined as “dead” as long as he has a heartbeat.’ (my emphasis)

    Presumably, therefore, you believe that one can subscribe to BOTH of the following. (A) A PERSON cannot be pronounced dead in the presence of circulation, and (B) Any THING can still be dead, even if it has circulation.

    This is where I think the confusion lies. While the above seems at first to be quite reasonable, it in fact masks definitional imprecision. After all, as I attempted to highlight through the use of CAPS, each of the above statements makes a baseless a priori assumption about the nature of what is being judged. Once this is exposed, I think this position becomes logically incoherent.

    In (A), you use the word “person.” Hence: a “person” is only dead in the absence of circulation. Following from this: a “person” is alive because he possesses circulation.

    In (B), you use the word “thing.” Hence: a “thing” (like a heart or liver) is dead, notwithstanding that blood is circulating through it. Following from this: a “thing” is dead, even in the presence of circulation.

    The problem is this: You fail to explain your criteria for distinguishing a “person” from a “thing.”

    Clearly you believe that these are two separate ontological/physiological categories, since you assign different criteria for determining death to each. This would be fine as long as you explain your basis for differentiating between the two. To this point, you have not attempted to do so, and instead have relied on argument by analogy. While argument by analogy is a fair tactic, it runs the risk (especially in a scientific/medical setting) of imprecision. Given this, please explain clearly – without analogy – what makes (A) a “person” and (B) a “thing.”

  138. Hazards of blog commenting alert: I just reread my comment above. Some of the language seems a bit harsh and ad-hominem. I absolutely did not intend this, and I apologize to Dfdf for any offense he/she may have taken. I thoroughly appreciate your perspective, and I am learning a lot from this discussion!

  139. R’ Dfdf,

    I agree with you and also agree with Dr. Stadlan. In other words, Dr. Stadlan has successfully refuted R. Schachter. But what you are politely saying is that R. Schachter was wrong with his reasoning, and right with his conclusion. Indeed, in the original AECOM debate between R. Tendler and R. Schachter (whose audio recording at YUTORAH is referenced earlier), R. Tendler advances the same refutation that Dr. Stadlan does. Here are R. Tendler’s words:

    “Halakhah which does not make sense is not Halakhah. ‘Vi’amru rak am chakham vinavon hagoy hagadol hazeh’ [-R. Tendler is quoting Deut. 4:6.] You cannot say that there are 20 patients in total liver failure in every hospital who are dead [even though they can talk]… The problem is that Rav Schachter equated all the evarim shehanishamah teluyah vahem. From here you see it cannot be.”

    I think it must be acknowledged that R. Tendler is entirely correct; one cannot equate the liver with the head, because Menachot 37a establishes that consciousness is automatically a sign of life. At the same time, the refutation of R. Schachter potentially co-exists harmoniously with evaluating the brain dead patient’s life or death as a safek (which is what R. Schachter had correctly concluded but for the wrong reasons), given the alternate analysis this student has presented.

  140. Jerry

    I don’t have time at the moment to respond to your latest comment. I should note, though, that I didn’t find anything in your post offensive, so no need to apologize.

  141. Dfdf- I understand your objection. However, the premise I am using(and believe is true) is that Halacha demands a consistent approach to life and death, and, unless there are other explanations or halachic considerations, the same criteria apply to all situations that mandate a determination of life or death. (if you think about it, the gemara frequently asks a kasha on an opinion, insisting that they have to be consistent with their opinion on another matter in another place) So in fact you cannot say that in one situation a brain makes a difference, and in another situation say that it doesn’t. That is the basis of all the incoherence that I point out. As Rabbi Bush notes in the RCA Paper(one of the few things that I agree with), there is only one definition of life and death. If Rabbi Schachter says it is 3 organs when he is looking at potential brain death, he has to say it is three organs when he is dealing with transplants, conjoined twins, isolated organs on the laboratory bench hooked up to pumps, etc.

  142. About R. Bush’s dismissal of R. Dovid Feinstein’s interpretation of his father’s opinion:
    1. There are at least two roshei yeshiva in America who effectively say that there is such a thing as brain death.
    2. One of them is r. moshe feinstein’s son, the other is his son-in-law.
    3. R. Bush says that the conclusions at which RDF arrives do not make sense. R. Moshe has to make sense. Therefore the son’s understanding of his father’s opinion has to be wrong.

    I think that it is deeply ironic that the author of this paper, who to Dr. Stadlan’s frustration ignores logical problems with not accepting brain stem death as death (since he insists that the paper is just a survey of authorities and not a tshuva)should use his own seichel to completely dismiss RDF’s position. So he has some kashas. Since when is that a reason to completely discount shimush and the fact that someone is a talmid chacham? Maybe he should sit and think about it for a bit.

  143. Thank you R’ Mor for raising the issue of the testimony of R. Moshe David Tendler and R. David Feinstein [both excellently recorded by HODS] regarding the ruling of RMF vis-a-vis brain death. I agree with you that we are halakhically obligated to accept the testimony as truth, based on Tosafot to Yevamot 77a, s.v. “im kodem ma’aseh amrah shom’in lo”. Tosafot write that when a talmid chakham is free of any vested interest, we accept his testimony that his already deceased Rabbi told him a novel pesak halakhah which relates to a controversy currently in progress. Thus, since R. Moshe David Tendler and R. David Feinstein are free of any vested interest, we must accept their testimomy that R. Feinstein ruled that a brain dead patient is dead. “Soklin visorfin al hachazakot” declares the gemara in Kiddushin 80a; both R. Tendler and R. Feinstein enjoy a chezkat kashrut as righteous Jews, and so their testimony must be accepted. [R. Bleich appears to have missed this key point in Benetivot Hahalakhah III, pp. 135-138. However, in all fairness to R. Bleich, that book was written before the HODS website was published. With the publication of the HODS website and the videotape testimony it contains, there can no longer be any doubt as to RMF’s position.]

    However, the oral report of R. Tendler and R. Feinstein – while truthfully representing what R. Feinstein held – does not contain convincing analytical reasoning beyond why a brain dead patient is dead. This thesis was elegantly presented by R. Hershel Schachter in the AECOM symposium (whose recording is referenced earlier). At no point does R. Schachter contest R. Tendler’s testimony as to R. Feinstein’s position; R. Schachter implicitly concedes that R. Tendler’s testimony regarding RMF be accepted, but R. Schachter also demonstrates that RMF’s position is only a safek, and so cannot be practically implemented. [As noted earlier in this forum, R. Schachter’s reasoning is itself wrong, but possesses the correct conclusion when reformulated the way this student has.] Since R. Feinstein has himself ruled in Iggerot Mosheh, Yoreh De’ah III, no. 88 that it is forbidden to follow the pesak halakhah of a deceased authority (such as Chazon Ish) when posthumous evidence is disovered to overturn the pesak halakhah, it emerges that according to R. Feinstein himself it is forbidden to rely on R. Feinstein’s previous halakhic ruling that a brain dead patient is alive. Rather, brain dead patients must be treated as safek alive, and hence should be maintained on life support, as per the mishnah in Yoma 83a that doubts regarding piku’ach nefesh be adjudicated to the side of life.

    I believe that this message is reflected in the letter R. David Feinstein sent me, as quoted in footnote 135 of the RCA document. R. Feinstein acknowledged that I have a legitimate case in countering the ruling he attributes to RMF, but R. David Feinstein also explained – quite correctly – that this does not change the historical fact that he heard from RMF the words that he heard.

    {It may also be observed that RMF was apparently willing to tolerate the countervailing opinion of R. Bleich since – as noted in the “Brain Death in the News” forum – RMF did not protest when R. Bleich went to the White House together with R. Tendler in 1980 and presented an opposite analysis to that of R. Tendler. It seems as though RMF recognized the potential safek in this matter. Still, this paragraph is only conjecture, since perhaps RMF never heard about the White House rendez-vous.}

  144. Oops… I should have written “Since R. Feinstein has himself ruled in Iggerot Mosheh, Yoreh De’ah III, no. 88 that it is forbidden to follow the pesak halakhah of a deceased authority (such as Chazon Ish) when posthumous evidence is disovered to overturn the pesak halakhah, it emerges that according to R. Feinstein himself it is forbidden to rely on R. Feinstein’s previous halakhic ruling that a brain dead patient is dead.” [In other words, I am correcting the last word in the sentence.] Thank you.

  145. Another observation to be rendered regarding RMF’s testimony is that, as demonstrated by the RCA document on p. 53, RMF (IM YD 2:146) believed that respiration continues occurs even following cardiac arrest. This belief will come as a surprise to contemporary students of pulmonary physiology, since a central dogma of pulmonary physiology is that breathing is incompatible with asystole. Nevertheless, this was apparently RMF’s perception of reality (even if it disagrees with all current possessors of medical degrees), and so when RMF told his son RDF “a person is considered dead when he stops breathing” , it is hypothetically possible that RMF was speaking of a patient already in cardiac arrest. [I don’t know for sure… I never had the zekhut to meet RMF… I never even heard about RMF until his first yartzeit (when I was a mere katan…) But this is just to reinforce my claim that IM YD 3:88 be invoked to overturn RMF’s brain death ruling.]

  146. Rav Spira, you wrote ” R. Feinstein has himself ruled in Iggerot Mosheh, Yoreh De’ah III, no. 88 that it is forbidden to follow the pesak halakhah of a deceased authority (such as Chazon Ish) when posthumous evidence is disovered to overturn the pesak halakhah”

    Today, circulation is never irreversible as long as the arteries are present. All you have to do is push on the chest hard enough and there will be circulation. By your logic then, all the positions that hold that death is defined by irreversible cessation of circulation cannot be followed. This would include Rashi, the Chatam Sofer, the Chacham Tzvi, etc. You may be more radical than I am.

    As far as breathing without circulation, theoretically, immediately after the heart stopped, there would still be some breathing until either the brain stopped sending impulses or the diaphragm muscles depleted their energy. It may be for only 10-30 seconds(an estimate on my part), but it is possible. In addition if he was referring to circulation supplied by something other than the person’s own heart(a pump or a transplanted heart) then breathing could continue indefinitely.

  147. In truth, I must significantly qualify (and perhaps even retract) my comment from 12:59 p.m. Although it is true that in IM YD 2:146 (paragraph that begins “aval barur ufashut she’ein hachotem”, final nine lines of paragraph), RMF writes the respiration continues even after cardiac arrest, in the very next paragraph (beginning with words “vi’ulai mah she’hutzrakh”, first seven lines) R. Feinstein entertains the opposite possibility, viz. that a person cannot breathe after cardiac arrest. Regarding this latter possibility, R. Feinstein opines “vi’af she’ein hekhre’ach lizeh, efshar shehu ken” – maybe it’s true, though not necessarily so.
    Thus, we see that – as one of the two options RMF entertained in 1970 – RMF did potentially understand respiratory physiology as medical science currently does, and still he told RDF and RMDT that brain death is death. Presumably, then, we return to the principle established by Tosafot in Yevamot 77a requiring us to accept RDF and RMDT’S testimony at its’ face value. But even so, we are left with the safek created by the unresolved dispute regarding a cow’s lactation on Pesach, plus the unresolved dispute regarding the interpretation of Chullin 21a, both outstanding disputes which existed well before RMF was born, and both disputes regarding which RMF did not offer evidence to refute the countervailing side to the option he was choosing. [-And hence RDF’s apparent acknowledgement that his father’s ruling may be legitimately challenged, and hence the triggering of the principle in Yoma 85a that a doubt regarding piku’ach nefesh must be adjudicated to the side of life.]

  148. (1) Yi’yasher kochakha, Dr. Stadlan, for the insight regarding breathing following circulation, which was unknown to me. Okay – I admit I was wrong regarding respiratory physiology (and this is an important he’arah on p. 53 of the RCA document). Accordingly, to update my comment from 8:13 p.m., RMF was correct to enunciate the two possibilities that he did in 1970, which further strengthens the credibility of RDF and RMDT’s testimony.

    (2) You are right: in the contemporary era, circulation is reversible so long as non-decomposed arteries are present. Therefore, I would argue in favor of a delay of burial until the arteries become sufficiently decomposed to prevent reinstitution of circulation. This I would extrapolate from RSZA who (as cited in Shulchan Shelomoh, Erkei Refu’ah II, pp. 34-35) says that even though in the days of Chazal it was a mitzvah to bury a breathless patient right away, today we are not allowed to do so, when techniques of resuscitation render restoration of breathing possible. Obviously, in RSZA’s time, RSZA only recognized the window of resuscitation opportunity to be several minutes (though he does not specify exactly how long this is), but today the window of opportunity may have expanded to (I don’t know the exact measurement).

    (3) Thank you for pointing me to the J R Soc Med 2007 reference. I will definitly make sure to study it.

    (4) Regarding your excellent question of whether a posek who is convinced that his position is correct can ignore the countervailing views of other authorities, this is indeed a significant issue. Rema in Shulchan Arukh Choshen Mishpat 25:2 (based on the gemara in Avodah Zarah 7a) rules that in an unresolved dispute regarding a biblical prohibition, one must be stringent, and in an unresolved dispute regarding a rabbinic prohibition, one can be lenient. Some opinions, however, hold that the disciple of a specific posek may always follow his posek, even to be lenient regarding a biblical prohibition: Chazon Ish (Yoreh De’ah 150:1-5); the Steipler in his Kehillot Ya’akov (Berakhot, no. 1) and R. Aaron Yehudah Halevi Grossman in his Shu”t Vidarashta Vichakarta IV, Yoreh De’ah no. 24. On the other hand, the following opinions hold that even the students of a posek must take into account the countervailing ruling of other poskim: R. Refael Yosef Chazzan in his Chikrei Lev, Yoreh De’ah no. 87 (s.v. vigam); R. Ben-Zion Abba Sha’ul in his Shu”t Or Litzion I, Orach Chaim no. 7, sec. 2; R. Shlomo Zalman Auerbach in his Shu”t Minchat Shelomoh I, no. 44, sec. 2; and R. Avigdor Neventzal in his Sichot Lisefer Vayikra, p. 237.
    Of particular interest is that RMF appears to vacillate between both options. In his Dibberot Mosheh to Shabbat no. 10, for the bulk of the lecture he adopts the Chazon Ish’s approach (-albeit without mentioning Chazon Ish by name). However, in the final section of the lecture, RMF appears to reverse himself. Likewise, his subsequent treatment of the topic in IM EH 4:100 (sec. 4), appears equivocal. In the introduction to the first volume of IM, RMF explains that the citizens of Rabbi Eliezer’s town described by Shabbat 130a were rewarded because they were not aware of the fact that any sage contradicted Rabbi Eliezer. RMF’s remarks could be plausibly read to imply that, had the townspeople been actually aware that Rabbi Akiva opposed Rabbi Eliezer, they would have been indeed obligated to be stringent regarding a safek di’oraita, even though they were all disciples of Rabbi Eliezer.

  149. “in the contemporary era, circulation is reversible so long as non-decomposed arteries are present. Therefore, I would argue in favor of a delay of burial until the arteries become sufficiently decomposed to prevent reinstitution of circulation.”

    I don’t know if this makes any sense because I’m not a medical expert, so please correct me if I’m wrong: If a person is hooked up to a pump, but is brain dead by the criteria endorsed by Noam (i.e. where function has never been recovered), wouldn’t allowing the arteries to decompose by unhooking the pump (thereby allowing circulation to expire) constitute murder under this rule?

  150. yes. you can also take it to more extremes such as discussing embalmed bodies where the arteries will never decompose. Hopefully the realization will dawn that premodern poskim, when they referred to irreversible cessation of circulation, had a model where 1. when the person’s heart stopped there was no way to have circulation and 2. there was a unitary model of the human body, so that when the heart ceased to function, every other organ also ceased to function. Therefore brain death is not contrary to that position if you take into account the scientific assumptions that underly the Halachic position. I think that it is necessary to move the focus from the circulation to whatever anatomy or function the circulation was meant to support.

  151. Some of the comments are still being reloaded by R. Student, but until the reloading is complete, I will just summarize them, in case any clinicians need immediate answers to a piku’ach nefesh question that may arise:

    (a) There is a dispute between RMF and RSZA whether deactivating a lifesupport machine constitutes an act of homicide. Thus, I agree with R’ Jerry and Dr. Stadlan that – if one assumes a brain dead patient is alive because of continued circulation – one should not deactivate the lifesupport machine.

    (b) I agree with Dr. Stadlan that an embalmed patient is definitely dead. This is because the embalming process drains the patient of blood and replaces it with a different liquid, thereby ensuring that circulation (of human blood) has ceased irreversibly.

    (c) R’ Mor observed that, given the above facts, both RMF and RSZA would agree (albeit for different reasons) that one can deactivate the lifesupport machine of a brain dead patient. RMF says this because he regards a brain dead patient as dead (-not found explicitly in any written pesak but in an oral decision transmitted to us by RDF and RMDT), and RSZA says this because he permits deactivation of a lifesupport machine in the case of a gossess (and RSZA holds that, if a brain dead patient is alive, then he is a gossess). Thus R’ Mor quite fairly asks whether one can therefore deactivate the lifesupport machine of a brain dead patient, seeing as both RMF and RSZA agree to this.

  152. And now my response to R’ Mor’s excellent question: In Eruvin 7a, Rav Sheizvi explains that if two disputes among poskim regarding a mitzvah di’oraita are both unresolved and are both conceptually unrelated, one should be stringent regarding both disputes, even though this results in a situation where one is contradicting both poskim, Because the two disputes between RMF and RSZA are both unresolved as well as conceptually unrelated (one being the definition of death, and the other being the definition of homicide), Rav Sheizvi’s principle tells us to be stringent regarding both. This is certainly true regarding so weighty a matter as piku’ach nefesh, where even multiply compounded doubts are adjudicated to the side of life, as per the mishnah in Yoma 83a.

  153. I am not so sure that the gemara in Eiruvin applies to this situation. Basically, in the gemara the situation is that tana A says you need condition X to make a kosher eiruv and tana B says – no you don’t, but you do need condition Y. So we are told that it is laudable to take care of x and y. The clause about conceptually unrelated is just brought in because if they are based on a mutually exclusive understanding of halacha then it would be silly to be choshesh for both of them (so it is silly to try to eat at the seder a shiur of chazon ish in the kidei achilas pras of – um – the meikel one).
    Over here RSZ is saying you need condition x in order to unplug someone from a ventilator (in his book this is a gosses) and RM says that in order to be allowed to unplug someone from a ventilator you need…condition x (because in his book this person is dead). In other words, over here you can say mima nofshach, and you cant say that in eiruvin.

  154. I do seem to remember something about leading a camel from both ends which might support you more than this gemara in eiruvin but I can’t remember where it is.

  155. I think that may have been an exceptional case where the two chumros were conceptually related but applied anyway – end of Shabbos?

  156. Yi’yasher kochakha, R’ Mor, for your analysis.

    I agree with you that, in a case of a ‘mimah nafshakh’, there is no reason to be strict like both poskim, and in fact the gemara in Eruvin 6b-7a is telling us that it is wrong to do so, as a function of “hakesil bachoshekh holekh”. However, the case at hand does not seem to me to be one of a ‘mimah nafshakh’ (though others are free to disagree with me). I think it is theoretically possible to hold on the one hand that a brain dead patient is alive (given the cow lactation and Eli Hakohen debates among the Acharonim which preceded RMF & RSZA), and to also hold on the other hand like RMF that deactivation of lifesupport (in the case of living patient) constitutes homicide. Cow lactation, Eli Hakohen and the definition of homicide, are all distinct issues. Hence, Rav Sheizvi’s principle appears germane.

    Actually, R. Mordechai Tendler, in his testimony at HODS, reports that even RMF only regarded deactivation of the lifesupport machine as safek homicide, recognizing the cogency countervailing argument that the machine is completely extraneous to the patient (and since it did not exist in the time of Chazal, the machine is irrelevant to the life of the patient). But even so, safek homicide is still prohibited, and so there is no practical clinical difference created by the homicide being a mere safek.

    Thank you, as well, for your kind support from the case of leading a camel in two directions. I believe you are referring to the mishnah “harei zeh chamar gamal” in Eruvin 52a (where a person is proverbially stuck between a camel and a donkey).

  157. I don’t think that is it. I remember that it was talking about being machmir for two conflicting opinions. I could be confabulating.
    Where can I find the discussion about lactating cows and Eli Hakohen?

  158. Thank you, R’ Mor. I will keep my eyes open to investigate where else conflicting stringencies materialize in the Oral Torah.
    Thank you, as well, for inquiring regarding the lactating cows and Eli Hakohen. It certainly demands presentation before the public to see whether my thesis has merit.

    (1) LACTATION: the starting point of the lactation discussion is R. Shabtai Rappaport’s interview on the HODS website. RSR (31:49-37:28 into the interview recording) presents what seems to me to be the most persuasive reading of the Chatam Sofer. CS says three times that death is defined by irreversible apnea (-once in the paragraph that begins “vineichazei anan” and twice in the paragraph that begins “vilomar nafal mapolet shanei”). Then CS says three other times that death is defined by irreversible cardiopulmonary arrest (-once in the paragraph that begins “vihineh harivash” and twice in the paragraph that begins “aval kol she’achar shemutal ki’even domem”). How do we explain the internal contradiction within CS? RSR answers that CS means that breathing=life, but that as long as the effects of the last breath are *enjoyed* (even if the patient is not presently breathing), the patient is still alive. Hence, CS envisaged heartbeat as a manifestation of the continued enjoyment of breath (since the heartbeat is only possible because the patient previously inhaled oxygen, thereby providing the cardiac myocytes with the oxygen necessary for oxidative phosphorylation to occur within their mitochondria, enabling the production of adenosine triphosphate and the contraction of those same myocytes), and so heartbeat is indeed a sign of life.

    Accordingly, RSR extrapolates from CS that when a patient is brain dead and has been on the lifesupport machine for several hours, it is clear that all the enjoyment from the oxygen that he autonomously respired (before the patient became brain dead) has already been exhausted, and therefore the patient is dead.

    My hypothesis is that the correctness of RSR’s extrapolation will hinge upon the dispute among the poskim regarding the applicability of “zeh vizeh gorem” (ZVG) to lactating cows on Pesach. Namely, there are some poskim who permit drinking milk on Pesach from a cow that eats chametz the entire holiday (even though chametz is asur bahana’ah) because of the fact that the cow also ate chametz before Passover begun (when chametz was mutar bahana’ah), and so it is a situation of ZVG. The food that was eaten, even a long time ago, continues to halakhically maintain a natural impact upon the life of the animal. Presumably, then, by the same token, if a brain dead patient is being ventilated by a respirator, his heart is presently beating – not only thanks to the oxygen being presently pumped into him by the respirator – but also because of the oxygen he originally breathed before he became brain dead. In other words, I am hypothesizing that those poskim who apply ZVG to temporally separated elements (and therefore justify the Passover consumption of the milk) would presumably categorize the brain dead patient’s heart beat as being naturally fuelled by his own respiration, whereas those poskim who refuse to apply ZVG to temporally separated elements (and therefore forbid the Passover consumption of the milk when predicated solely on ZVG grounds) will categorize the brain dead patient’s heartbeat as being artificial and hence irrelevant.

  159. To elaborate: To elaborate: ZVG, subject to a tannaitic dispute on Avodah Zarah 49a, is accepted as a normative principle by the Rambam, Hilkhot Avodat Kokhavim 7:14 and Shulchan Arukh, Yoreh De’ah 142:11. Rashi to Avodah Zarah 49a (s.v. mai lav ha) explains that even if an animal has recently been fed exclusively with idolatrous foods, ZVG dictates that the animal be permitted on account of the kosher foods it ate many days previously.
    Accordingly, the Rema to Yoreh De’ah 60:1 rules that an animal that has been nourished by forbidden foodstuffs is itself permissible, whereas an animal that was nourished entirely (for its whole life) by forbidden foodstuffs is prohibited. The apparent difference between the two cases is that the former is an instance of ZVG, whereas the latter is not. The Shakh (se’if katan no. 5) understands that the Rema speaks only of forbidden foodstuffs whose benefit is also enjoined, whereas the Bi’ur HaGra (se’if katan no. 1) explains that the Rema is referring to all non-kosher foods, even ones whose benefit is permitted. Either way, we see that it is possible for an animal to begin its life eating kosher foods, then to switch to an exclusive diet of forbidden foods, and still retain the status of a permitted creature because of the permitted food it ingested a long time ago. The food ingested long ago continues to impact upon the life of the creature.

    Shu”t Avnei Mil’uim no. 7 (paragraph that begins with Uvimordekhai) explicitly articulates this point, observing that, according the Mordekhai (one of the key sources for the Rema’s ruling), the two factors for ZVG need not be simultaneous. The Avnei Milu’im proceeds to observe that the Rambam (Hilkhot Ma’akhalot Assurot 16:24) apparently disputes this contention with his ruling that a pot of food cooked, first by the fuel of orlah or kil’ei hakerem and then by the fuel of permitted wood, is actually forbidden. The Avnei Milu’im concludes that the matter requires further analysis. [However, it may be simply noted that the Rambam’s fact pattern is not quite the same as the Mordekhai’s. In the Rambam’s situation, the food was already partially cooked by the single-handed effects of a forbidden fuel before the permitted fuel was even introduced. That partial cooking can never be reversed and so renders the food irrevocably contraindicated. In the Mordekhai’s situation, a living creature continues to be affected by food that was ingested long ago. Thus, the Mordekhai’s basic principle is not contradicted by the Rambam. Moreover, the Rambam actually holds that even an animal has been fed its entire life with forbidden foodstuffs is kosher, as is evident from Hilkhot Issurei Mizbe’ach 3:14. Thus, the Rambam must certainly distinguish between a pot of cooking food and a living creature!] In any event, the Rema rules like the Mordekhai.

    Of course, this alone does not demonstrate that the oxygen inhaled by a brain dead patient a long time ago (before he became brain dead) necessarily impacts on his present heartbeat in the eyes of Halakhah. Perhaps dead meat is a static object that is regarded as the cumulative effect of all the ingredients of the animal when the animal used to be alive, whereas a live human heartbeat is a dynamic phenomenon which depends only on the present ingredients the patient is receiving. However, since some poskim do apply ZVG to the question of drinking milk from a live cow on Passover, it becomes evident that (in their opinion) even present physiology is halakhically regarded as the effect of past ingredients.

    Although one may object that, without the artificial ventilator, the patient’s heartbeat would stop, exactly the same is true for the animal. Without having eaten chametz in recent days, the cow would have surely stopped producing milk, yet the cow’s milk is still regarded as the life-product of not only the chametz it is eating on Passover, but even of the food it ate before Passover commenced. Mutatis mutandis, the heartbeat of a brain dead patient could be considered as natural (according to the side of the debate that permits the milk on Pesach).

  160. To offer specific names: The following opinions believe that food eaten by a cow before Passover continues to halakhically impact upon the cow’s physiology during the holiday of Passover: R. Shneur Zalman of Lublin in his Shu”t Torat Chessed no. 21, R. Aryeh Leib ben Moshe of Plotzk, in his Magen Ha’elef to Orach Chaim no. 448 (se’if katan no. 10), R. Avraham Danzig in his Nishmat Adam (no. 9), R. Yehudah Assad in his Shu”t Yehudah Ya’aleh, Orach Chaim no. 127, R. Yehudah Leibish Landau in his Yad Yehudah al Shulchan Arukh Yoreh De’ah (hashmatot vichidushim lihilkhot ta’aruvot, siman no. 103, oti’ot nos. 2-3), and R. Aharon David Deutsch in his Shu”t Goren David no. 35.
    In this student’s opinion, it is also the view of R. Joab Joshua Weingarten in his Shu”t Chelkat Yo’av (mahadura tinyana, no. 20). R. Weingarten’s approach is somewhat complex in this regard. Discussing the problem of milking a chametz-eating cow on Passover, he commences the paragraph “vi’af dilikh’orah yesh lomar” by suggesting that ZVG should, at first glance, not combine the food an animal ate a long time ago with the food it recently ate. This is certainly true for the Rambam who rules that slaughtering a misukenet with an idolatrous knife renders the animal prohibited. The lifeforce of the animal before it became a misukenet does not combine with the knife to trigger ZVG. Rather, we say that, if the animal had not been slaughtered, it surely would have imminently died (like any misukenet) and so the single cause for the existence of the consumable meat is the idolatrous knife (thus rendering the meat forbidden). However, R. Weingarten then reverses himself because, in point of fact, the halakhah follows the Rashba that a misukenet animal slaughtered by an idolatrous knife is mainly permitted (with the exception that one should throw money into the Dead Sea that is worth the value of renting a knife – see Shakh to Yoreh De’ah no. 10, se’if kattan no. 5, and Taz, ibid., se’if kattan no. 3). Thus, R. Weingarten concludes that ZVG does apply to input factors into an animal’s life that are temporally removed from one another, and he is willing to use this as a justification to permit the cow’s milk on Passover. Accordingly, R. Weingarten should be counted among the poskim who hold that food an animal ate before Passover continues to physiologically impact upon the animal during Passover.
    According to this school of thought, it should follow that the oxygen inhaled by a patient before he became brain dead could possibly be regarded as continuing to impact upon his heartbeat even after he becomes dependent upon the ventilator, such that the heartbeat of a brain dead patient could be regarded as a “natural” heartbeat, in compliance with R. Rappaport’s chiddush.

    The following opinions dispute the foregoing and believe that food eaten by a cow before Passover does *not* continue to halakhically impact upon the cow’s physiology during the holiday of Passover. The Pri Megadim in his Eshel Avraham at the end of Orach Chaim no. 448 is only willing to invoke ZVG if the cow ate chametz and non-chametz during Pesach itself. The implication of the Pri Megadim is that he would not be willing to rely on the food that was eaten before Pesach. Indeed, such an inference is explicitly enunciated by R. Chaim Sofer in his Shu”t Machaneh Chayim III, no. 20 (paragraph that begins “umah yakru bi’einai”). R. Sofer cites R. Shlomo Ganzfried as having espoused this view, and proceeds to embrace it himself.
    Similarly, R. Jacob Meshulam Orenstein, in his Yeshu’ot Yaakov to Orach Chaim no. 448 (se’if kattan no. 9) only allows relying upon ZVG when an animal eats chametz as well as non-chametz on Passover itself. Likewise rule R. Mordechai Benet in his Shu”t Parashat Mordekhai, Orach Chaim no. 22 (paragraph that begins with vi’akatei) and R. Eliezer Fleckles in his Shu”t Teshuvah Me’ahavah III, no. 325.
    According to the latter school of thought, it should follow that the oxygen inhaled by a patient before he became brain dead does not physiologically contribute to his heartbeat while he on the ventilator, and so the heartbeat of a brain dead patient is not a “natural” heartbeat.

  161. 1. I am not impressed with R. Rappaport’s modern analysis of the Chasam Sofer’s teshuva. It is very clear to me that the “inconsistency” in his language is due to the fact that he had a quite correct understanding of the metzius of his time period, and that when he was writing, irreversibly stopped respiration = irreversibly stopped heartbeat. We are in general not so midayek on the language of achronim and the fact that he shifted his phraseology a bit in the course of writing the teshuva does not bother me at all.
    2. I am puzzled by your assumption that the machlokes regarding zeh vizeh gorem can be applied to respiration. It seems to me to be a machlokes about a specific metzius (can food eaten a while ago still contribute to milk later) and not a machlokes asking such a general question as “can any kind of outside element assimilated by an animal continue to have an impact on that animal after a long time.”
    3. Based on the above, I think that your analysis has a very tenuous connection to the opinion of the Chasam Sofer, and no connection whatsoever to the opinions of Rav Moshe and Rav Shlomo Zalman or the interaction between the two. I still fail to understand how this has anything at all to do with applying the principle of mima nofshach.

  162. Thank you, R’ Mor, for your insights and analysis.

    Regarding the first issue, I could be wrong but it seems to me that we are both articulating the same conclusion as RSR. Viz., there were no lifesupport machines in the Chatam Sofer’s time, and so, for the Chatam Sofer, absence of respiration = absence of circulation, because the very last manifestation of respiration was the continued circulation that was the beneficiary of the final breath taken. The question thus becomes, if today we can prolong the circulation past the time it would have been expected to cease based on autonomous respiration, is that circulation still of any importance to the Chatam Sofer? That’s what leads me to the second issue, regarding which I admit that I have zero experience (yet) in terms of the milking cow metzi’ut, so I don’t know for sure, but my impression is that if a cow goes a few days into Pesach without eating anything, in all cases the lactation will 100% cease.

    Regarding the third issue, you are correct, neither RMF nor RSZA ever mentioned bovine lactation in their discussions of brain death. But it seems to me that the conflicting assumptions they adopt vis-a-vis breathless circulation correspond with the unresolved debate regarding bovine lactation. Namely, as orally reported from RDF and RMDT, RMF axiomatically held that breathless circulation is meaningless and is not a sign of life (and therefore that a brain dead patient is dead if breathlessness could be confirmed). Moreover, assuming one is willing to combine the oral record of RMF (as reported by RDF and RMDT) with the written record of RMF, then RMF attributed this position to the Chatam Sofer, as he writes in the final sentence of the first paragraph of IM YD 3:132. By contradistinction, RSZA invokes the Chatam Sofer to mean that breathless circulation is a sign of life, and therefore that a brain dead patient is alive, [unless it can be further be proven that all brain cells have died – which, based upon his controversial interpretation of Eli Hakohen – RSZA regards as virtual decapitation. Although breathless circulation is normally a sign of life for RSZA, nevertheless decapitation spells instant death, as per Sotah 45b, even in the face of continuing circulation.)] (Source: Shulchan Shelomoh, Erkei Refu’ah II, pp. 26-28. N.B. On p. 18 and p. 32, RSZA attempts to attribute this position to RMF, as well. In response, I would submit that while the written record of RMF is amenable to RSZA’s efforts to harmonize RMF with his own view, the oral record – as communicated to us by RDF and RMDT – renders such a harmonization impossible. RDF and RMDT have clearly testified that RMF held that breathless circulation is irrelevant. Surprisingly, RMF wrote IM 3:132 in a manner of double entente, such that we are completely dependent on oral testimony to verify what the responsum means or does not mean.)

    Ergo, it seems to me that RMF grasped the assumption that the cow’s lactation is only attributed to “ba’asher hu sham” – what the cow is currently ingesting, whereas RSZA grasped the assumption that the cow’s lactation is legally viewed through a historical perspective: don’t just look at what is fueling the lactation now, without remembering that the cow would never have reached this point if it hadn’t eating chametz before Pesach.

  163. Sorry… that last phrase should read “if it hadn’t been eating chametz before Pesach”. Thank you.

  164. (2) CONTROVERSY REGARDING INTERPRETING THE EPISODE OF ELI HAKOHEN:

    The gemara in Chullin 20b-21a defines the parameters of decapitation in the context of establishing death. [Thus, this gemara supplements Sotah 45b which equates decapitation with instant death, even when the decapitated human keeps running following his decapitation.] On 21a, Rav Yehuda in the name of Shmuel declares that the breaking of the neckbone plus most of the accompanying musculature renders a human being anatomically decapitated. The gemara proceeds to ask that Eli the High Priest is recorded by I Samuel 4:18 to have died simply as a result of a broken neckbone, without anatomical decapitation. The gemara explains – ziknah shanei – a geriatric patient is different than all other patients. Due to his seniority, Eli was killed through a breaking of the neck alone. Thus, decapitation can occur in even a non-anatomical manner in a sensitive patient. From the outside, Eli appeared as anatomically normal as any other individual, but the blow to his neck rendered him “physiologically decapitated”, as RMDT has beautifully elucidated it.

    Accordingly, if this gemara is taken at its face value halakhah lima’aseh, it would emerge that even if breathless circulation is a sign of life (-which, as explained earlier, is subject to controversy between RMF and RSZA), a brain dead patient would still be halakhically dead, because the brain dead patient has been physiologically decapitated.

    Rambam (Hilkhot Tum’at Met 1:15) and Shulchan Arukh (Yoreh De’ah 370:1), omit any reference to physiological decapitation. Both of those sources simply rule that the breaking of the neckbone with most of the accompanying musculature (i.e. anatomical decapitation) renders a person dead. There is no mention of the ziknah shanei principle, and hence no mention of physiological decapitation. But the Shakh to Yoreh De’ah 370, §5, does say that “mashma” – it is implied – by Chullin 21a that in a geriatric patient a breaking of the neck will itself suffice to render the patient dead. The Shakh also cites the Yam Shel Shelomoh to that effect.

    R. Isaiah Pick Berlin, in his Omer Hashikh’chah, no. 48, asks why the Rambam and the Shulchan Arukh omit any reference to the ziknah shanei principle. Moreover, the Shakh – who does finally cite the ziknah shanei principle – only says “mashma” (as quoted above), as though there is some doubt about the correctness of the ziknah shanei principle. In light of these incongruities, R. Berlin concludes that the Rambam must have possessed the alternate version of the gemara in Chullin 21a which is presented by the She’iltot of Rav Achai Ga’on (Parashat Emor, no. 103). There, the gemara (as presented by the She’iltot) uses Eli the High Priest as the proof that breaking of neckbone plus the majority of the accompanying musculature renders a patient dead. Eli was anatomically decapitated according to the She’iltot’s version of the gemara, not physiologically decapitated. There is no such concept as physiological decapitation according to the She’iltot’s version of the gemara. The Rambam accordingly follows the She’iltot. And out of respect for the Rambam, continues Omer Hashikh’chah, the Tur and Shulchan Arukh may have followed his approach. And that may be why the Shakh used the hesitant word “mashma”, because he knew there is an alternate version to the gemara which rejects the concept of ziknah shanei. [However, Omer Hashikh’chah is careful to add: “I do not insist kablu da’ati (accept my opinion) in the intention of the Shakh”. Thus, it does not sound as though Omer Hashikh’chah is certain about his thesis.] Moreover, concludes Omer Hashikh’chah, even the Yam Shel Shelomoh quoted by the Shakh apparently recognizes the doubtfulness of physiological decapitation, because he never questions the Rambam’s omission thereof, whereas he does question the Rambam’s omission of another aspect of the same sugya. The Yam Shel Shelomoh held that, lichumra, one should be concerned that maybe ziknah shanei exists (like our version of Chullin 21a), and also that maybe ziknah shanei does not exist (like the She’iltot’s version of Chullin 21a).

    The Netziv, in his Ha’amek She’elah commentary upon the She’iltot (ibid., §8) reaches exactly the same conclusion as the Omer Hashikh’chah. He says the Rambam and the Shulchan Arukh follow the She’iltot.

    R. Binyamin Hirsch Auerbach, in his nineteenth century Nachal Eshkol commentary upon the so-called Sefer Ha’eshkol (Hilkhot Tum’at Kohanim, p. 185), goes even a step further. According to the Nachal Eshkol, there is no halakhic dispute. Everyone agrees (-both our version of the gemara as well as the She’iltot’s version-) that there is no such concept as physiological decapitation. That is obviously the case for the She’iltot: Eli suffered a broken neckbone together with the majority of his accompanying musculature. But even according to our version of the gemara (i.e. that Eli only suffered a broken neckbone), what ziknah shanei means is (as explained by the Ran al Ha-Rif) that in a geriatric patient, a broken neckbone suffices to cause a cessation of all residual motion (pirkus) in the patient. I.e., a broken neckbone suffices to cause immediate, irreversible cardiopulmonary arrest in a geriatric patient. Concludes the Nachal Eshkol, “and as the juvenile and as the senior [are concerned], they have the same law”. [Full disclosure: I have heard that the Sefer Ha’eshkol is reputed to be a forgery. I claim total ignorance on this subject, and I also don’t know whether this affects the trustworthiness of the Nachal Eshkol. For discussion, see especially the Seforim Web Log article of Dr. Marc B. Shapiro of August 2, 2007, with the comment of Mori ViRebbi R. Kaplan at August 5, 2007, at 2:00 p.m.]

    R. Jacob Gesundheit, in his Tiferet Ya’akov commentary on Chullin 21a, also addresses physiological decapitation. He is surprised by the fact that “the Rambam and the poskim do not mention” the principle of ziknah shanei. He says that, if not for Rashi, he would explain the sugya as follows: At first glance, the gemara’s challenge to Rav Yehuda in the name of Shmuel from the story of Eli seems strange. Why do we not simply assume that the High Priest’s broken neck caused him to experience cardiopulmonary arrest and that is what killed him? Thus, it is not that the mere broken neck constituted death, but that it triggered death. Moreover, if the mere breaking of the neck was assumed by the challenger in the gemara to constitute death, why does the verse say regarding the High Priest, “and his neckbone broke and he died”? The breaking of the neck was death! There is no need to add “and he died”, as if the death was subsequent to the breakage! Therefore, the shakla vitarya should be explained like this. The challenger in the gemara indeed assumes that breaking the neck is not death (which is why the verse states “and his neck broke and he died” – they were two separate events: the breaking of the neck, and then death by cardiopulmonary arrest). But now the question is: why did Scripture even bother to mention that Eli’s neck broke? Let the verse simply state: “And he fell from his chair and he died”! It must be because Eli broke his neck plus the majority of the accompanying musculature, and the chiddush of the verse is that even this did not halakhically constitute the death of the High Priest (only the subsequent cardiopulmonary arrest that was instantly triggered). And if so, then this refutes Rav Yehuda in the name of Shmuel’s statement that the breaking of the neck plus the majority of the accompanying muscaluture constitutes death. To which the gemara answers: No! Ziknah shanei! Eli only broke his neck, without the surrounding musculature. But you would have thought, since he was a senior citizen, that a mere breaking of the neck constitutes death in his case, and therefore Scripture comes to teach the chiddush that even in the case of a senior citizen, a person is not decapitated until the neckbone is torn together with most of the surrounding musculature. Thus, it emerges that, according to the Tiferet Ya’akov, there is no such concept as physiological decapitation.

    R. Yitzchak Pardo, in his To’afot Re’em commentary on the She’iltot, adopts almost the completely opposite approach. He is alarmed by the contradiction between the She’iltot’s version of Chullin 21a and ours. He says tzarikh li iyun tuva (this requires a lot of analysis for me), unless we can say that the version of the She’iltot really means to say as version of Chullin 21a does, but that there are missing words in the She’iltot. Thus, the To’afot Re’em attempts to reconcile both versions, such that everyone will agree with the ziknah shanei principle and that everyone will agree with the concept of physiological decapitation, but he is ultimately uncertain whether it can be done. The To’afot Re’em concludes that the Halakhah indeed is that breakage of the neckbone together with the majority of the accompanying musculature constitutes death. He adds that the Yam Shel Shelomoh also wants to add the ziknah shanei principle, and he refers the reader to the Shakh. However, the To’afot Re’em seems uncertain whether this can be accepted, which is consistent with his previous remark of tzarikh li iyun tuva.

    In contradistinction to the previously mentioned Acharonim, the Arukh Hashulchan (Yoreh De’ah 370:1) unreservedly endorses the words of the Shakh, taking them at their face value. Thus, for the Arukh Hashulchan, physiological decapitation is a real concept.

    In conclusion, then, we see four approaches to ziknah shanei among the Acharonim who follow the Shakh: (a) It is totally rejected (Tiferet Ya’akov, and also Nachal Eshkol, though due to my ignorance I am not sure whether Nachal Eshkol is reckoned as an authentic halakhic work). (b) It is subject to a dispute between our version of Chullin 21a and the She’iltot’s (Omer Hashikh’chah and Netziv, though the Omer Hashikh’chah expresses hesitation about this). (c) It is accepted by our version of Chullin 21a, and it might very well be accepted by the She’iltot, but this is uncertain (To’afot Re’em). (d) It is totally accepted (Arukh Hashulchan).

  165. We now arrive at the question of how RMF and RSZA addressed the episode of Eli Hakohen as a controversial source for the concept of physiological decapitation.

    In IM YD 2:174, sec. 1, RMF analyzes Chullin 20b-21a, correcting an error that the Kessef Mishneh rendered regarding the sugya. But RMF himself commits an error (with all due reverence manifest before RMF) in recapitulating the sugya: On p. 286 of that volume of IM, left-hand column, fourteen to twelve lines from the bottom, RMF writes that according to the “ikka di’amrei” in the sugya, Rabbi Assi in the name of Rabbi Mani explains that the mishnah in Ohalot 1:6 refers to the same level of injury as is inflicted upon a korban olat ha’of during the course of melikah according to the opinion of the Rabbanan.

    Alas, RMF’s recapitulation of the sugya is contrafactual. The opposite is true: according to the “ikka di’amrei” in the sugya, Rabbi Assi in the name of Rabbi Mani explains that the mishnah in Ohalot 1:6 refers to the same level of injury as is inflicted upon a korban olat ha’of during the course of melikah according to the opinion of Rabbi Elazar the son of Rabbi Shimon (the opponent of the Rabbanan in the sugya).

    [Remarkably, R. Yitzchak Ya’akov Weisz, in transcribing RMF’s responsum verbatim in Shu”t Minchat Yitzchak V, no. 8, and then offering his own feedback to RMF’s correction of Kessef Mishneh, allows RMF’s error to pass without comment. Apparently, R. Weisz did not notice that RMF recapitulated the sugya the opposite of how it appears in Shas.]

    RMF then rules that physiologic decapitation is indeed death, as derived from Eli Hakohen. This he writes on 287, left-hand column, commencing eleven lines from the top. Says RMF: “Shmuel derives from the verse regarding Eli that breakage of the neckbone in a human renders him dead, except that without seniority it is logical to him [Shmuel] that the human being needs also the tearing of the majority of the surrounding musculature [to be considered decapitated]. For if the breakage of the neckbone were irrelevant for the definition of death, it would not help in the case of a senior, yet the verse says ‘and his neckbone broke and he died’, implying that for Shmuel this made him [the High Priest] dead. And the reason there is no distinction in practical law between a senior and a juvenile is because we are not experts in the measure of seniority. Seniority here does not depend on years, for there are seniors who [are healthy and therefore they] are like juveniles for this purpose, even though they are seniors for other purposes.” These remarks of RMF indicate that RMF accepted the approach of Arukh Hashulchan that Chullin 21a should be interpreted to mean that physiological decapitation = halakhic decapitation, except that RMF adds (writing in 1968) that we are not sufficiently expert to medically diagnose physiologically decapitation.

    However, it must be observed that RMF does not recognize – much less refute – the fact that four previous Acharonim (Tiferet Ya’akov, Omer Hashikh’chah, Netziv, Toafot Re’em) and one doubtfully legitimate Acharon (Nachal Eshkol) interpreted the gemara in Chullin 21a either to the contrary or doubtfully to the contrary, and held that physiological decapitation is not death altogether (or is doubtfully not death). Perhaps one may remonstrate that RMF was greater than all four (or five) of these Acharonim put together. But was RMF also greater than the She’iltot of Rav Achai Ga’on which supports these four (or five) Acharonim? It seems to this student that the matter is not simply resolved, and stands as a safek.

    In any event, in IM YD 3:132, RMF revisits the concept of physiological decapitation in third paragraph. There, he writes that when a patient is on a lifesupport machine following a trauma, and cannot the patient cannot breathe, then the radionuclide scan should be performed as a “chumra” to ensure that the patient is dead. Assuming one accepts RDF and RMDT’s oral testimony regarding RMF’s position, and therefore that the patient described has circulation, then what here is the “chumra” of conducting the radionulide test? [I.e. if one explains the responsum as R. Bleich does {and as one possibility advanced by RSZA}, that the responsum is dealing with a patient in circulatory arrest, then the “chumra” is understandable. The chumra is that even though the patient is in circulatory arrest (which matches the classic definition of death from time immemorial), we cannot pronounce death until the brain is diagnosed as being physiologically decapitated (presumably because, until then, there is a chance of resuscitation). But RDF and RMDT reject R. Bleich’s interpretation of the responsum, and they hold – based on what they heard from RMF’s mouth – that the responsum deals with a patient who has circulation (just no autonomous breathing). What then is the “chumra” of the radionuclide test?] The chumra is apparently that even though RMF holds by physiological decapitation (as previously announced in YD 2:174 sec. 1), still RMF will not acknowledge that physiological decapitation has occurred until the brain has completely rotten. In other words, in principle, physiological decapitation – as derived from the story of the High Priest according to RMF’s controversial interpretation – occurs when the brain is irreversibly dysfunctional, even if the brain has not decomposed. RMF imposes a chumra upon this that he will not acknowledge that physiological decapitation has occurred until the brain has actually rotten, as certified by the radionuclide scan.

    In summation, RMF held like the Arukh Hashulchan’s interpretation of Chullin 21a, but never addressed the countervailing opinion among the Acharonim. He did impose a chumra on the Arukh Hashulchan’s intepretation not to diagnose physiological decapitation until the brain rotted.

  166. As for RSZA, he also (like RMF) interpreted Chullin 21a like the Arukh Hashulchan that physiological decapitation = halakhic decapitation, and he also (like RMF) never seriously acknowledged the Acharonim who oppose the Arukh Hashulchan. This emerges from Shulchan Shelomoh, Erkei Refu’ah II, p. 40, where RSZA writes (as quoted by R. Simchah Bunim Lazerson):

    “Therefore I think that if the physicians perform the injections described earlier [of radioactive material, to diagnostically confirm that the brain is irreversibly dysfunctional], it seems to my humble opinion that presumably this is regarded as though his head was removed or the neckbone of the senior was broken – which is considered dead even without [the tearing of] the majority of the surrounding musculature. And even though there are some who express doubts and are concerned, in any event it is almost surely the case [that the patient is dead].” Therefore, RSZA will certify the patient as dead if every single brain cell can be verified to be irreversibly dysfunctional. For RSZA, Eli Hakohen teaches that irreversible dysfunction of the entire central nervous system = decapitation = death.

    There is a subtle difference between RMF and RSZA regarding physiological decapitation. Although both affirm the existence of the concept in principle, RMF held we are not experts how to diagnose it in practice (at least in 1968), and therefore (in 1976) held that we need proof that the brain has rotted before physiological decapitation can be confirmed. RSZA, by contradistinction, saw no need to insist upon any decomposition of the brain. For RSZA, it was sufficient to confirm that every single brain cell had irreversibly ceased to function. [I.e. physiological death of each cell suffices, without need for anatomical disintegration.]

    Of course, as he indicates on p. 31, in his own lifetime (until he ascended to the Heavenly Academy in 1995), RSZA never was presented with a single clinical case where he felt it could actually be proven that a brain dead patient on a ventilator had irreversibly lost function in every single brain cell. Therefore, RSZA never allowed removing organs from any of the brain dead patients with which he was presented. However, RSZA states that if – in the future – medical diagnostic technology will improve such that it is possible to demonstrate that every single brain cell has irreversibly ceased to function, then the brain dead patient will be known to be physiologically decapitated beyond cavil, and RSZA will authorize removal of organs from the brain dead patient to save other patients’ lives.

    It seems to this student, kitalmid ha’yoshev bakarka vidan lifnei Rabbotav (and this is only my hypothesis, and others are free to disagree with me), that a safek remains whether to accept to concept of physiological decapitation, because although RMF and RSZA endorsed it [evidently on the strength of Arukh Hashulchan], they never addressed the countervailing opinion of the Acharonim (based on Rav Achai Ga’on) who explained the story of Eli Hakohen to the contrary of Arukh Hashulchan.

  167. ummm…according to RDF, RMF’s acceptance of the concept of brain death was about the cessation of independent respiration being a sign of death, not about decapitation.

  168. R’ Mor, thank you for the clarification. You are correct: RDF’s testimony is that irreversible breathlessness (even if accompanied by continued circulation) constitutes death. Once we are apprised of RDF’s testimony, one could also read this into IM YD 3:132, first paragraph, taking into account RSR’s explanation of how RMF understood the Chatam Sofer.

    However, independent of the equation apnea=death, RMF coincidentally advocates the position that “physiological decapitation”=death, based on Chullin 21a regarding Eli Hakohen. This RMF submits in IM YD 2:174, sec. 1, and he also seems to be driving at the same point in the third paragraph of IM YD 3:132. In that third paragraph, RMF is explaining that if there is no way to demonstrate breathlessness (-because we don’t know whether the patient is autonomously breathing or whether the machine is “breathing” for an already-dead patient), then the alternative is to prove physiological decapitation through the radionuclide scan.

    RMDT’s testimony regarding RMF is of a more general nature. In the original 1988 symposium where he debates RHS, RMDT testifies that RMF authorized deactivating the lifesupport machines of brain dead patients (-which, for RMF [unlike RSZA] is only permissible if the patient is legally dead). RMDT does not testify what specific reasoning RMF orally advanced in authorizing the deactivation of the lifesupport machine, but now we understand that there are 2 equally possible ways why RMF would allow this: (a) If apnea had been confirmed, the patient would be dead in RMF’s eyes; (b) If physiological decapitation had been confirmed, the patient would be dead in RMF’s eyes.

    In summary, there are two completely distinct ways to die according to RMF: By breathlessness or by physiological decapitation. RSZA disagrees with RMF on the first count, but agrees with RMF on the second count. In this forum, we have suggested that not only is there substantial basis for RSZA to challenge RMF (as a matter of safek) regarding the first count, but there is even substantial basis to challenge the combined assumption of RMF and RSZA (as a matter of safek) regarding the second count.

  169. Good – that is much clearer. I hate to hock chinik, but what we have over here is: If a person stops breathing independently, R’ Moshe says you can disconnect him from the respirator because he is dead, and R’ Shlomo Zalman says you can disconnect him because A. he is a gosses B. you are withholding something vs. directly causing his death. Even though their reasoning is different, the two greatest poskim of the past generation agree that you can disconnect a person who has experienced brain stem death from a respirator. Chas v’shalom that this should ever come up for anyone in real life, but I feel that a halachik consensus is always a good thing to be aware of.

  170. Thank you, R’ Mor, for your kind words and for keeping the exciting discussion alive. I fully agree with your prayer that we should never be confronted with such situations, and that we should also never require “matnat bassar vadam”, as we say in the birkat hamazon. I also fully agree with your observation that RMF and RSZA both permitted deactivating the ventilator of a brain dead patient. Based on the testimony of R. Binyamin Walfish on the HODS website, which I assume we are obligated to accept based on Tosafot to Yevamot 77a, this was also the opinion of RYBS when asked in late 1983 or early 1984. Thus, we have the joint agreement of RMF, RYBS and RSZA – impressive indeed.

    But RMF/RYBS and RSZA reached this conclusion for opposite reasons (RMF/RYBS because of their definition of death which RSZA disputed, and RSZA because of the definition of homicide which RMF disputed), and thus Rav Sheizvi’s principle in Eruvin 7a presumably requires us to be strict regarding each component dispute, seeing as there is no consensus regarding either of the two component disputes (-and indeed there is cogent reasoning to be stringent regarding each of the disputes). This is especially highlighted by the reasonably-formulated ruling of R. Bleich (presented in his Benetivot Hahalakhah III, pp. 161-178) that there is an obligation of piku’ach nefesh to medically prolong the life of a gossess. So, for R. Bleich, it’s not only prohibited to deactivate the ventilator of the brain dead patient, but if the ventilator would become accidentally disconnected, we would be obligated to make the heroic effort to reactivate the ventilator. Accordingly, the dictum that doubts regarding piku’ach nefesh be adjudicated to the side of life (as per Yoma 83a), taken together with Rav Sheizvi’s principle, augurs in favour of maintaining the brain dead patient on the ventilator (and reactivating the ventilator should it accidentally stop).

    If, lo aleinu, there is a triage situation where I do not possess sufficient resources to save all the patients, I will first endeavour to save the life of a patient who is definitely alive (albeit in mortal danger) before saving the doubtful life of a brain dead patient. This follows from the Pri Megadim to Orach Chaim 328, Mishbetzot Zahav §1: “If one patient is definitely in danger according to the opinion of the physicians, and the other patient is doubtfully in danger, and the medication does not suffice for both, the definite patient takes precedence over the doubtful patient”. But when adequate resources exist to treat even the brain dead patient, he must presumably be treated. Moreover, if the brain dead patient is already on the ventilator, he presumably cannot be abandoned (even if the ventilator is needed for a higher triage priority patient) seeing as his treatment has already commenced. [Triage decisions only concern patients whose treatment has not yet commenced.]

  171. I said
    “I am not so sure that the gemara in Eiruvin applies to this situation. Basically, in the gemara the situation is that tana A says you need condition X to make a kosher eiruv and tana B says – no you don’t, but you do need condition Y. So we are told that it is laudable to take care of x and y. The clause about conceptually unrelated is just brought in because if they are based on a mutually exclusive understanding of halacha then it would be silly to be choshesh for both of them (so it is silly to try to eat at the seder a shiur of chazon ish in the kidei achilas pras of – um – the meikel one).
    Over here RSZ is saying you need condition x in order to unplug someone from a ventilator (in his book this is a gosses) and RM says that in order to be allowed to unplug someone from a ventilator you need…condition x (because in his book this person is dead). In other words, over here you can say mima nofshach, and you cant say that in eiruvin.

    You responded

    “I agree with you that, in a case of a ‘mimah nafshakh’, there is no reason to be strict like both poskim, and in fact the gemara in Eruvin 6b-7a is telling us that it is wrong to do so, as a function of “hakesil bachoshekh holekh”. However, the case at hand does not seem to me to be one of a ‘mimah nafshakh’ (though others are free to disagree with me). I think it is theoretically possible to hold on the one hand that a brain dead patient is alive (given the cow lactation and Eli Hakohen debates among the Acharonim which preceded RMF & RSZA), and to also hold on the other hand like RMF that deactivation of lifesupport (in the case of living patient) constitutes homicide. Cow lactation, Eli Hakohen and the definition of homicide, are all distinct issues. Hence, Rav Sheizvi’s principle appears germane.”

    First of all, whether or not it is theoretically possible to follow that theoretical approach is irrelevant to the question of whether or not mima nofshach applies. That is your approach and that is lovely. It doesnt change the opinions of Rav Moshe or RSZA or affect the logical interplay between them.

    It seems that in your latest comment you forgot that it was just established that Rav Moshe has TWO reasons for saying that brain death is death. 1. decapitation and 2. cessation of independent respiration. Either one independently would count to make brain death halachic death. You personally don’t like the decapitation idea since there is a shitta in rishonim and achronim that would not allow brain death to be considered decapitation. You are entitled to feel that way. That doesn’t change that fact that A. I think we can safely assume that Rav Moshe was aware of this shitta and chose to ignore it – perhaps because he was only using it as a tzad lihatir B. He had another reason for considering brain death to be halachic death, ie. apnea. Now, you may make a personal choice to follow the shitta that a brain dead patient is still alive while adopting Rav Moshe’s psak about disconnecting from a ventilator. That is YOUR prerogative. You can rely on poskim who hold both, like R. Bleich. However, whatever you do or think cannot change what R. Moshe said.
    Again, R. Bleich, like you, is entitled to think whatever he wants, but whatever R. Bleich says cannot change the psak of Rav Shlomo Zalman. This is what you are not allowed to do: you are not allowed to say – “What posek x says doesn’t make sense to me, therefore his psak doesn’t exist, or he must not have said it. That is bad form.” R. Bleich would never be guilty of such a faux pas, and it is not nice to use his words to support such a move.
    Rav Moshe said what he said, RSZA said what he said, and you have still failed to satisfactorily address the application of mima nofshach.

  172. sorry, “that is bad form” belongs outside of quotation marks.

  173. Thank you, R’ Mor, for your kind response and important insights. You correctly point out that there is a sfek sfeka likula to declare a brain dead patient dead, and therefore even according to Rav Sheizvi’s principle, the brain dead patient could be regarded as dead, based on the axiom in Ketubot 9a that a sfek sfeka likula permits biblical prohibitions. I agree with you – at least if the patient’s entire brain (including the hypothalamus) is dead – that there is essentially a sfek sfeka likula to declare a brain dead patient dead: maybe apnea is death, and maybe physiological decapitation is death.

    [If the entire brain has died except for the hypothalamus, it’s more complicated, since RSZA will say “this is not physiological decapitation”, whereas RMDT will say “this is also physiological decapitation”. The mechanics behind this dispute are explained in the “Brain Death in the News” forum, in my comment on Dec. 8 at 3:24 p.m., seventh paragraph. Thus, if the hypothalamus is alive, there is a sfek sfeka lichumra: perhaps the living hypothalamus negates the diagnosis of physiological decapitation, and even if not, perhaps physiological decapitation does not exist as a concept altogether.]

    Your invocation of the sfek sfeka likula axiom is correct and thus requires me to elaborate further why the brain dead patient should be treated as alive: Yes, it is true – a sfek sfeka likula normally allows us to be lenient regarding a biblical prohibition. However, there are two exceptions of relevance to our case: (1) The twenty-seventh of the thirty-six principles which govern the application of a sfek sfeka likula (as enumerated by the Shakh in his commentary to Shulchan Arukh Yoreh De’ah no. 110) ordains that a sfek sfeka cannot permit a prohibition which is based upon a chazakah. Since the patient has a chezkat chaim, I don’t think we can declare him dead on the basis of a sfek sfeka likula alone. (2) The mishnah in Yoma 83a, codified by Shulchan Aruch Orach Chaim 329:3, commands us to attempt to rescue an patient on Shabbat, even when there is a sfek sfeka likula to say that the patient is already dead. This reflects the notion that, based upon “vachai bahem vilo she’yamut bahem”, a sfek sfeka does not operate in the case of piku’ach nefesh. Since the determination of whether the patient should be treated as alive is a matter of piku’ach nefesh, I don’t think we can declare him dead on the basis of a sfek sfeka likula alone.

    You are correct (and I fully applaud your sentiments to honour the Torah) that it is a highly startling (and uncomfortable) to overturn the ruling of RMF. I have a tradition from my mentor R. Joshua Shmidman that we say regarding RMF “Shekhinah midaberet migerono shel Mosheh.” However, RMF himself – in IM YD 3:88 – told us to overturn the pesak halakhah of even a leading halakhic authority, when posthumous evidence arises to contradict that leading halakhic authority’s ruling. And so I think treating the brain dead patient as potentially alive is the correct (albeit uncomfortable) decision in good halakhic conscience, following IM YD 3:88.

  174. I never said anything about sfek sfeka. I am puzzled about how that came to be attributed to me. I think that if a person is brain dead, then mima nofshach, RM and RSZ would agree that he may be unplugged. Not unplugging him would be, like what the gemara says in eiruvin, “ksil bichoshech holech.”
    Also, I wasn’t objecting to the ruling of RM being overturned. As far as I can tell, you are not ignoring his apnea ruling, you are just unwilling to rely upon it alone. I was objecting to the ruling of RSZ being ignored. It is based on the idea that the ventilator is outside of the person. To the best of my understanding, this is not a scientific datum which has been overturned by later discoveries. It is just a way of looking at a metzius which still exists.

  175. Leon Zacharowicz MD

    As a neurologist interested in the topic of brain death in jewish law for some two decades, I’ve had the privilege of sitting down with many of the world’s leading halachic authorities and learning “the sugya” (literally) as well as discussing these issues with these sages–ranging from leading rabbis of YU to the Eidah Chareidis.

    The inescapable reality is that the large majority of internationally recognized rabbinic authorities over the past four decades have been unwilling to accept “brain death,” let alone “brainstem death,” as death in Jewish law.

    I’ve invited Dr. Stadlan and Robby Berman and others interested in this decades-long halachic controversy to come to the annual Yarchei Kallah on medical halacha and to sit and learn this sugya, starting with the Talmud, down through modern-day poskim, with our leading authorities. I’ve done this, on multiple occasions. I even translated for Rabb Mordechai Eliyahu ztl on more than one occasion when he gave shiurim on this topic to the yarchei kallah participants.

    Rabbi Shlomo Zalman Auerbach, when asked a question about this very topic, reached for his Gemarah. The person who had approached him seemed to express surprise that this giant of Torah scholars would first open the Gemarah, to which Rav Shlomo Zalman ztl reporedly replied something along the lines of “What’s wrong with re-learning this suyga in the Gemarah?” (not an exact quote; this is based on my memory of what was told to me by someone close to him).

    In a similar vein, I ask of those interested in this topic, particularly those who advocate so strongly for one position or another: What’s wrong with learning this sugya in the Gemarah, with our poskim, in a yarchei kallah, or similar format?

  176. Leon Zacharowicz MD

    One additional comment: some of those who have brought this controversy to the secular media may not be aware of the fact that the Rav ztl was vehemently against public discussion of sensitive topics such as some of the topics involved in this area. He expressed his concern, over 30 years ago, of the danger that could result were the NY Times or a similar secular newspaper to get hold of such a topic and misrepresent it to the non-orthodox public.

  177. I guess as the author of the column, I should post the last word. There is absolutely nothing wrong with learning the sugya again, and I wonder why Dr. Z. seems to think that those who disagree with him are not learning the sugya. Indeed, it is necessary to go over all the data regarding brain death; not just the gemara, the rishonim, and acharonim, but also underlying medical assumptions, logic, and current medical/scientific knowledge in order to fully understand the issue.

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