Comment #1: Lost in this communal discussion is the context of organ donation. It is part of broader end-of-life medical decisions. Many people gain comfort from the feeling of increased control that comes with thoroughly researching issues that arise. However, this can never take the place of consultation with a medical expert and a spiritual advisor. Ethicists may debate whether a living will or a healthcare proxy is better but finding a trusted advisor to guide you through the complex and emotionally difficult decisions is always important. In other words, the final answer to the issue of brain stem death is: Ask your rabbi.

Brain Stem Death: Sources, Comments, Questions

Print Friendly, PDF & Email

I. Comments

Comment #1: Lost in this communal discussion is the context of organ donation. It is part of broader end-of-life medical decisions. Many people gain comfort from the feeling of increased control that comes with thoroughly researching issues that arise. However, this can never take the place of consultation with a medical expert and a spiritual advisor. Ethicists may debate whether a living will or a healthcare proxy is better but finding a trusted advisor to guide you through the complex and emotionally difficult decisions is always important. In other words, the final answer to the issue of brain stem death is: Ask your rabbi.

Comment #2: I have no expertise on the many complex issues involved in brain death. I have invited some lawyers, rabbis, doctors and ethicists to write for this blog. Most have declined due to lack of time. If you fit the bill and can explain some of the issues to readers, please contact me. Also, please see the questions below. Perhaps you can help us better understand the issues by posting in the comments section.

II. Sources

Source #1: Another blog posted an audio clip from a lecture by R. Hershel Schachter (link, beginning at minute 44). The clip is misleading because, while accurate, it lacks the broader context and implies that R. Schachter takes the exact opposite position he really does. If you listen closely, R. Schachter only discusses the strength of various arguments without reaching any conclusion. In a different lecture, in response to a question he also briefly discusses the strength of different views but specifically says what is the commonly accepted ruling: link (beginning at 58 minutes). He also does it here: link (beginning at minute 26). Here is a link to R. Schachter’s Hebrew article on the subject, in which you can see the fuller context: link. As you can see, in the last section he discusses three possible attitudes toward receiving an organ and reaches no conclusion, ending with the the word “ועיין” (there is a floating-word/typo at the end but the next page is the beginning of a new essay). His position on organ donation and receipt has never changed, as can be verified from shul rabbis who have consulted with him on this issue over the past 20+ years. This is a cautionary note about information presented on irresponsible websites. Even when it’s right, it might be wrong.

Source #2: The RCA paper mentions a letter sent by R. Yitzchak (Isadore) Twersky, R. Joseph B. Soloveitchik’s son-in-law, and R. Ahron Soloveitchik, his brother, to R. Marc Angel about R. Soloveitchik’s position on brain stem death. I had not previously heard about the letter and can’t find it on the HODS website. It seems like something that should be publicly available. If you have a copy of it, please send it to me and I will post it.

III. Questions

For the doctors who can explain the facts to us non-medical folks:

Question #1: Some rabbinic authorities differentiate between brain stem death and total brain death. Is there currently a test that can verify total brain death? Twenty years ago there was not but is there today?

Question #2: Does harvesting an organ from a brain-stem-dead patient always mean his situation is made worse? (I know that phrasing is inadequate but I don’t want to say killed or that life-sustaining systems are removed.) For example, if only a single kidney is removed from a brain-stem-dead patient, is his situation changed so that all agree he is now dead? Or is he kept on life support and additional organs can be removed later?

Question #3: A relevant piece of information is whether any specific organ recipient causes a brain-stem-dead patient to be harvested. According to these statistics (link), it seems that donors give on average 3-5 organs. Is this the right data and am I understanding it correctly? Does this mean that most of the time, even if one of the recipients was not a match, the donor would still be harvested for organs? Is there data for number of recipients to number of donors rather than organs per donor?

About Gil Student

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

228 comments

  1. “In other words, the final answer to the issue of brain stem death is: Ask your rabbi.”

    I would amend this to: “discuss with a rabbi you know well and whose judgment and wisdom you respect.”

  2. I reccomend this summary article which covers a lot of these issues: http://www.kairos2.com/Elliot_Brain-death.pdf

    Question #1: Some rabbinic authorities differentiate between brain stem death and total brain death. Is there currently a test that can verify total brain death? Twenty years ago there was not but is there today?

    Short answer: no.
    Long answer: we have to define what we mean by total brain death. If total brain death is the death of every single brain cell, that actually doesn’t occur for at least 8 hours after loss of circulation(so that people declared dead by circulation criteria still have living brain cells in their brains for a while afterwards). There isn’t a test to determine if every cell in the brain is dead or not. There are some possible applications of MRI scans that may be able to better determine function, but you have to remember that all the tests that look at the whole brain do not look at the individual cells. In other words, there are billions and billions(maybe a trillion) neurons, and it is impossible to look at all of them individually. So there are tests that look at the brain as a whole, and tests that tell you about a small sample of cells, but nothing that tells you with 100% certainty about every cell.

    If you define total brain death as total loss of function, in this day and age a person who has no function on examination, a flat line eeg, no hypothalamic function on blood and urine testing(you could add in non-responsive BAER and somatosensory evoked potentials) would have total loss of brain function to the extent that we can measure.

    The best test for brain death remains the clinical examination.

    (the article above has a nice discussion of the differences between brainstem death and whole brain death)

    Question #2: Does harvesting an organ from a brain-stem-dead patient always mean his situation is made worse? (I know that phrasing is inadequate but I don’t want to say killed or that life-sustaining systems are removed.) For example, if only a single kidney is removed from a brain-stem-dead patient, is his situation changed so that all agree he is now dead? Or is he kept on life support and additional organs can be removed later?

    someone who is ‘brain dead’ usually has somewhat unstable vital signs. they usually need chemicals to keep their blood pressure normal and lots of other support. So frequently there is only a small window of time between the determination of brain death and the time when the vital signs have deteriorated to the point where the organs are no longer useful. Therefore organ harvesting is done all at once. Theoretically you could take one kidney out and he would be in pretty much the same condition afterwards, as long as the remaining kidney functioned, but I cant imagine that ever being done. Once you make an incision to harvest organs, you take out everything that is going to be donated. Obviously if you take out the heart, liver, or lungs, there is no chance of continuing to support the body in any meaningful fashion(I guess you theoretically could use an artifical heart or bypass pump to replace the heart and/or lungs)

    Question #3: A relevant piece of information is whether any specific organ recipient causes a brain-stem-dead patient to be harvested. According to these statistics (link), it seems that donors give on average 3-5 organs. Is this the right data and am I understanding it correctly? Does this mean that most of the time, even if one of the recipients was not a match, the donor would still be harvested for organs? Is there data for number of recipients to number of donors rather than organs per donor?
    Most donors donate everything possible, so that means two lungs, two kidneys, heart, liver and now sometimes intestine. Sometimes one or more organs are too damaged or diseased to donate, so not everything is used. Sometimes the heart and lung are transplanted together to the same recipient, but other than that, I think that the rest are usually one organ to one recipient

  3. “In other words, the final answer to the issue of brain stem death is: Ask your rabbi”

    The final answer on every halachic question is “Ask your rabbi”. Brain stem death is no different.

    Contrary to common practice, a person should not pasken based on 1) what his neighbor does, 2) what he reads on the Internet, 3) what he reads in a Kol Koreh, 4) what he observes his Rabbi doing, 5) what occurs when he opens to a “random” page of a sefer, 6) etc.

  4. Having been involved in transplant,
    Question #2. While it is possible to conceive of harvesting a single kidney (as from a live donor) from a brain stem dead patient, it is (TTBOMK) never done – and knowing what I know, I would find it difficult to believe it happening. In general, harvesting means that after due preparation, the donor’s circulatory system is arrested and the organs harvested.

    Question 3: Does any specific organ recipient causes a brain stem dead patient to be harvested?
    In general, one tries to take from a donor as many organs as
    i) Family of donor allows
    2) Are in good shape to be donated
    3) Recipients available
    Almost always, that is more than one. However, while I don’t know statistics, there are cases where there is only one recipient. That is far more likely to occur when some organs are damaged but others are still acceptable, or the donor has some issues that make him a far less than ideal donor (eg, preexisting disease), but there exists a recipient that is in sufficient need that the donor is viewed as acceptable for him, as he can’t wait for a better organ.

    However, while it is unusual for a particular recipient to cause harvesting, it is not unusual for the needs of a recipient to affect the handling and testing done to the donor, or the specific timing of when harvesting occurs (within a certain narrow window)

    Of course, one of the issues is defining the term “causes” – as it is the presence of a community of people that is awaiting organs that causes the harvest – and that community only exists because individuals belong to it – so by belonging to it, one “causes” – but I am assumng you are talking about a specific causal relationship between recipeint and harvesting…

  5. Leon Zacharowicz MD

    Here are my answers:

    1) There is no way to be 100% sure of whole brain death, particularly soon after the diagnosis of same is made, although there are “ancillary” tests which can demonstrate the lack of blood flow, for example, enabling a doctor to claim the “whole brain is dead.” Virtually none of these tests are routinely done anymore. Thus, even though as many as 10% of EEGs have reportedly shown areas of brain activity in patients clinically felt to be “brain dead,” that test is no longer done. Why? As one review by thought leaders said, cases of “outliers” should not be allowed to prevent organ transplantion. In other words, let’s not look for possible signs of brain activity, since we want to maximize organ donation–a very worthy goal IF the patient was dead al pi halacha.

    Similarly, doctors are no longer concerned about possible ongoing function of parts of the hypothalamus-pituitary system. Since the hypothalamus is a part of the brain (notwithstanding representations to the contrary reportedly made to Rav Shlomo Zalman Auerbach ztl), such patients may have some residual brain function.

    Today, doctors often present “brainstem death” in a fashion that makes families incorrectly think that the brain is necessarily 100% dead, i.e. the whole brain is completely liquefied, etc. (as was apparently presented to Rav Moshe Feinstein, ztl, in the late 1960s, based on the knowledge at the time). While it seems true
    that brain function will never significantly recover, there may be areas of the brain that still shown some signs of being alive, which would be of major concern to those who require “whole brain death” to consider such a patient to be dead in halacha. When a doctor states that the patient is dead, he / she is stating in essence that based on the secular medical establishment and the law, the patient is dead–which may or may nor be the case al pi halacha.

    2) I’m not aware of only a single kidney being removed from a “brain dead” patient. If the patient is alive al pi halacha, removing such an organ would be, to my knowledge, strictly forbidden. As I recall, Rav Shlomo Zalman Auerbach ztl considers a “brain dead” patient to possibly be a gossess; Rav Elyashiv says he is not sure anyone can tell how to define a gossess today. In any event, after whatever organ(s) is/are removed, life support is withdrawn. If the patient was dead al pi halacha, then that’s appropriate. If the patient was alive or possibly alive, that is retzicha b’yadayim, ie active murder.

    3) To my knowledge, as many organs are removed as possible. A “brain dead” patient is kept on life support longer if that patient is going to have organs removed (to keep the organs perfused, etc). One could therefore argue that regardless of one being a recipient, the patient (if halachically alive) is going to be killed either way, and sooner if there was no recipient (See my comments elsewhere, eg. on cross-currents.com, with regard to Rav Elyashiv’s important psak in the Chinese organ donation case.) The halachic rulings that permit post-hoc receipt of such organs have saved many a life.

    Those who claim in an online public statment (not in a halachic journal) that this view, held by many major poskim, is “morally untenable” are essentially calling for adherents of these poskim (who will not change their rulings based on what Rabbi Linzer et al write in an online statement) to die.

    To impose one’s view of morality, a view that is apparently based on factors outside of halacha, with the knowledge that such a “moral” position if adhered to by organ transplant teams or by potential recipients will result in the death of men, women, and children for their religious beliefs is itself immoral, in my view, and apparently in the view of the spokesman of Agudath Israel of America, which represents the view of the Moetzes Gedolei HaTorah. I have spoken with rabbis who are shocked by this public statement.

    As for the suggestion to consult one’s rabbi, the public statement online from a group of rabbis led by Rabbi Dov Linzer seems to indicate that a rabbi should refer someone asking a shailah on this life-and-death matter to a posek who believes that “brain death” is death in halacha, and seems to provide reasons that are “extra-halachic,” even noting that the State of Israel is endangered by poskim who hold what they label as a “morally untenable” position.

    The major issue is that the great majority of poskim refuse to accept “whole brain death,” let alone “brainstem death,” as death in halacha. There are other issues, such as the strict limitations of the Chief Rabbinate in their 1986 ruling, as I recall (a ruling which Rav Mordechai Eliyahu ztl said was based solely on medical information provided to them by 2 doctors, information which has since been shown to be inaccurate). These limitations include the requirement for ancillary tests to be done, for rabbinic supervision, and limitation of the rulig to cases in Israel. Extension of their ruling to outside the Land of Israel is a leap which clearly goes beyond their explicit ruling.

    Furthermore, extending the rulings of Rav Moshe Feinstein ztl to permit, or as some would argue mandate, organ donation in the Diaspora is again a leap which goes beyond his written teshuvos as recorded in Igros Moshe, to my knowledge.

    Many feel that HODS deliberately glosses over these important qualifying points,and that its presentation is not objective.

    I suggest a compromise: As laymen, let’s not judge the “morality” of various poskim, let’s accept that there are rabbis who for whatever reason accept or refuse to accept “brain death” as bona fide death in halacha.

    I suspect that none of the readers here are in a position to truly weigh in on this from a halachic point of view as would a major posek.

    Let’s keep the conversation civil and realize that, we are over 20 years into this controversy. Nothing wiil be solved here. Those who seek change are invited to try to speak with poskim, ask questions, present medical information, etc, as I’ve done for yeaers–but then be prepared for a psak which may differ than what one wants to hear.

    Let’s also hope that advoacy organizations will strive to become educational and unbiased, presenting as much information as possible, and removing inaccurate or flatly wrong information (such as listing Rav Moshe Sternbuch as a proponent of “brain death”). We dare not distort the truth of Torah, no matter what our goal–as Rav Moshe Feinstein ztl once pointed out.

    My goal for nearly two decades is to understand the lomdus behind the various positions here and on other pressing sugyos in medical halacha–which is why I co-founded the international series of Yarchei Kallahs on medical halacha (www.j-c-r.org).

    I strive to respect all halachic views. I respect the medical knowledge of those who may know more than me (e.g. Dr. Stadlan’s knowledge of neurosurgical aspects of certain issues), and are willing to share such knowledge, with the realization that some of this knowledge may be irrelevant al pi halacha–just as a modern-day explanation of chemistry will not change the halachic approaches to how blood seeps into or out of meat, etc, in kashrus.

    It may not make sense to modern man, but that’s the Torah truth on kashrus matters.

    Our obligation is to seek knowledge with derech eretz, as befitting students, realizing our own limitations, and NEVER to publicly criticize a posek simply because we do not understand or agree with his psak. To do is beyond the pale.

    Respectfully,

    Leon Zacharowicz MD

  6. If Dr. Zacharowicz wishes to “keep the conversation civil” why does he refer to me in many posts as Berman? Not Robby, or Robby Berman or Mr. Berman as I have repeatedly asked him to do to treat me with a minimum of respect.

    If Dr. Zacharowicz wishes that HODS material be “objective” and not misleading, why does he continue to use the term ‘life-support’ to refer to a ventilator? If he attached a football to a ventilator, would he describe the football as being on life-support? Perhaps he is not too subtly implying a brain dead person has a life that is being supported thus tainting the debate. I humbly suggest that he, a neurologist, use the accurate and value-neutral term ‘ventilator’ to describe a machine that vents air in and out of possibly a football, a corpse, or living human being that can’t breathe on his own. (See my editorial in this week’s Jerusalem Report)

    If Dr. Zacharowicz believes that ethics have no bearing on halacha, I suggest he study the Talmud and read as well contemporary writings such as those of Rav Aharon Lichtenstein.

    If Dr. Zacharowicz feels that one has to “realize our own limitations, and NEVER publicly criticize a posek simply because we do not understand or agree with his psak,” how does he feel about the fact that poskim in Europe told Jews in Germany and Poland in the 1930’s to stay where they are in Europe because America was a spiritual wasteland? If I had written an editorial publicaly criticizing the poskim and urging Jews to ignore them and flee Europe, would Dr. Zacharowicz say it is ‘out of the pale’ as he is want to use that term in about every post he writes. Would it have been, according to Dr. Zacharowicz, out of the pale to tell Jews to ignore the poskim and flee the pale to America?

    If Dr. Zacharowicz is in this debate purely lishma then perhaps he should stop marketing his Yarchei Kallah program every chance he gets, where he is usually writes as as he has above “I co-founded the international series of Yarchei Kallahs on medical halacha (www.j-c-r.org).”

    Instead of asking money, perhaps he can find sponsorship in Far Rockway or the Five Towns. Certainly such an important event where one can rub shoulders with the “gdolim” learning about life-saving sugyas surely could find sponsorship in the Five Towns to open it up to the public.

  7. >To impose one’s view of morality, a view that is apparently based on factors outside of halacha, with the knowledge that such a “moral” position if adhered to by organ transplant teams or by potential recipients will result in the death of men, women, and children for their religious beliefs is itself immoral, in my view, and apparently in the view of the spokesman of Agudath Israel of America, which represents the view of the Moetzes Gedolei HaTorah. I have spoken with rabbis who are shocked by this public statement.

    Are you kidding me? This paragraph should be filed under chutzpah in the dictionary! It is only through the very halachic shita of the reciepients that we see their actions as immoral!! pro BSD people are not advocating denying them transplants because they don’t think it is morally wrong to get a transplant from someone who they consider already dead! It is only morally reprehensable from the POV of the receipient who is murdering someone in order to get their organs. No one is “imposing views”, we are criticising a view and those who have an open ear and a sensitivity to moral hypocricy will listen and those who don’t, will continue generating a hillul Hashem through their policies.

    and factors outside of halahca? That is a badge of honor not of shame. Those who believe that halacha is a self contained system which should not be informed by outside disciplines such as ethics, science, history, etc. bring no kavod to the Torah. They make it look like a fossilized system of little contemporary relevance. You should become enlightened enough to have a holistic view of the world that is not limited to pure halachic categories.

    You are basically, leshitascha, saying that the blood of the reciepient is redder than that of the donor – shame on you!

  8. Dr. Zacharowicz: “Our obligation is to seek knowledge with derech eretz, as befitting students, realizing our own limitations, and NEVER to publicly criticize a posek simply because we do not understand or agree with his psak. To do is beyond the pale.”

    This is a remarkable statement. Buried within the truthful words about humility and respect is a radical prohibition: According to Dr. Zacharowicz, one may never publicly disagree with a posek! Not only that, but one who does so puts himself “beyond the pale.”

    I submit that this prohibition is not only anti-Torah, but the direct cause of most of the evils that exist within Torah society today. The refusal to hear other Torah voices in our communities and our batei midrash, the refusal to listen to others and accept the truth regardless of its source (i.e. whether you consider the source a “Gadol” or a “katan” is irrelevant), and the ease with which we place others “beyond the pale” simply for disagreeing with those whom we consider Gedolim or posekim — these are behaviours which cause great suffering to individuals and families, and which destroy communities.

    In the case of brain death, this terrible attitude has soiled the fabric of the debate and been used to try to delegitimize voices within that debate. Let’s try to change direction and make the debate an honorable one.

  9. I would like to thank Gil for moving this important conversation back to the real issues and not the stupid politics.
    yiyasher koach!

  10. Shachar Ha'amim

    Moshe – I agree with what you wrote, but still absent from the discussion is a coherent statement on whether one who refuses to donate should also be allowed to receive organs.
    Let’s not beat around the bush – many charedi Jews who refuse to sign donor cards were/are involved in the “organ trade” – receiving organs for sick relatives or themselves – or even worse obtaining organs with e.g. unknown provenance e.g. from China (shot political prisoners? extracted while alive?)
    This is an issue that indeed HAS to be dealt with

  11. I would just like to ask this question. It is not a moral one but a halachic one. I know the moral answer but would very much like to know the halachic one. I shall phrase it this way. Is a Jew’s blood redder than a non-Jew.
    If it is, then it can be understood why one can receive organs but not donate them which seems to be the main problem.

  12. In other words, the final answer to the issue of brain stem death is: Ask your rabbi.
    ===============================
    Not to go too far afield, but this goes back to an age old debate must/should you have 1 rabbi for all issues? Also is their room (still?) for a hashkafa/rav who says an area is subject to eitza tova (good advice) rather than the finality of “psak”?
    KT

  13. Comment #2: I have no expertise on the many complex issues involved in brain death. I have invited some lawyers, rabbis, doctors and ethicists to write for this blog. Most have declined due to lack of time.
    ====================================
    Now that would be an interesting study – what percentage of each individual’s negative response correlated with lack of time versus other factors (I’d say we all lack time at some level)
    KT

  14. Glatt some questions

    The brain stem death versus total brain death, which Dr. Zacharowitz and others are using as a reason to not murder a person, is a red herring. When a person’s heart has stopped beating and it cannot be reversed, they are halachically considered dead l’kal deios. But they may still have brain cells that are alive. Why would Dr. Zacharowitz consider this person halachically dead? You cannot have it both ways.

  15. Glatt some questions

    As for the suggestion to consult one’s rabbi, the public statement online from a group of rabbis led by Rabbi Dov Linzer seems to indicate that a rabbi should refer someone asking a shailah on this life-and-death matter to a posek who believes that “brain death” is death in halacha, and seems to provide reasons that are “extra-halachic,” even noting that the State of Israel is endangered by poskim who hold what they label as a “morally untenable” position.
    ————————————————

    Dr. Zacahraowitz may not want to admit it, but there are recent reports that even R. Elyashiv himself sent folks with questions about organ donation to the Chief Rabbinate Office, because he knew what their position was on the brain stem death. So Rabbi Linzer and Rav Elyashiv (l’havdil)actually agree more than they disagree, at least on this particular issue.

    http://www.israelnationalnews.com/News/news.aspx/141877)

  16. Shachar Ha’Amim: Let’s first understand the facts.

    Aaron: No. This has nothing to do with being Jewish or not.

    Robby and Dr. Zacharowicz: Please keep it civil.

  17. Glatt: I don’t see the contradiction. There can be multiple ways to determine someone’s death. An advocate of cardiac criteria would still consider someone beheaded but kept alive by machine to be dead. But if you are going to determine death based on the brain, you have to decide whether you are basing it on brain stem death or full brain death.

    I just want to point out that the reports of Gedolim opposed to brain death sending questioners to possum who accept it supports my theory of Eilu Va-Eilu in this area.

  18. I still have a hard time wrapping my head around eilu va-eilu in a case where you think it’s murder.

  19. “I suggest a compromise: As laymen, let’s not judge the “morality” of various poskim, let’s accept that there are rabbis who for whatever reason accept or refuse to accept “brain death” as bona fide death in halacha.”

    Once again we see the unfair and false implication that there are those who accept BSD who call their opponents immoral. that is not true! The morality issue arises ONLY on the question of refuse to give but eager to accept issue. The argument is simple; we respect your right to have a different halachic opinion; we don’t respect your right to have an internally inconsistent and morally objectionable halachic opinion.

  20. A note on terminology. The discussion on here has drifted towards “brain-stem death”. this is inacurate when discussing the US. Brain stem death is not the criterion used in the US for declaring death. Whole brain death is. (The situation is different in the UK, I believe, something that should be noted when discussing R. Sack’s position.)
    I would be more correct simply to talk about brain death, which refers generally to both whole brain death and brain-stem death. But refering to brain-stem death when discussing issues of brain death generally, or when discussing them at all in the context of the US, is simply inaccurate.

  21. Regarding tests for brain death. There is no definive test for whole brain death, but nor is there one for brain-stem death, so in this regard, there is no difference.

  22. Glatt some questions

    Glatt: I don’t see the contradiction. There can be multiple ways to determine someone’s death. An advocate of cardiac criteria would still consider someone beheaded but kept alive by machine to be dead. But if you are going to determine death based on the brain, you have to decide whether you are basing it on brain stem death or full brain death.
    —————————

    I still see a contradiction. If you are critical of those who use the death of the brain stem as halachic death because you believe the activity of even a few brain cells is a sign of life, then you should believe that this is a sign of a life even if you subscribe to the cardiac definition of death. And I’m not sure what relevance the beheading example has to this particular contradiction.

  23. >I just want to point out that the reports of Gedolim opposed to brain death sending questioners to possum who accept it supports my theory of Eilu Va-Eilu in this area.

    Gil, I would say to this that:

    a) Application of Eilu va-Eilu in this manner goes against the way the majority of rishonim understood Eilu va-Eilu (which was in a much more limited scope)

    b) I find it hard to accept an application of Eilu va-Eilu where those who hold one shita rely on the opposing opinion for those uncomfortable situations where their own shita has very bad implications – especially so when we are dealing with life and death issue (eg. You have to be machmir when you donate, but can be somech on the other side when you receive)

  24. I asked earlier a very important shaalo l’halacha. You may not know the answer or not want to reply, but that doesnt change the fact that ‘Torah he v’lilmod ani tsarich’

  25. Let me clarify what I wrote. The test for total brain death is testing for function of the brain. If there is no function of the brain it can be considered totally dead. As noted, there has not been a single case of recovery after appropriate testing. I assumed Gil’s question referred to testing aside from clinical testing.

    Response to Dr. Z. Please read my long post here which shows that while your facts may be correct, they are irrelevant to the question of whether halacha accepts a neurological definiion of death. Rabbi Bush used the same arguments. In addition if we are going to call for respect for positions of Gedolim, I would ask that you respect the positions of the Gedolim who accept brain death and stop trying to belittle the position.

    R Gil’s answer regarding the brain cells that are still functioning points to a common misconception. Why exactly is someone dead after they have lacked circulation for 20-30 minutes? Is that halachically set in stone? Since one can always attach a circulation pump, it cannot be that circulation has ceased irreversibly, because that is not true. In addition, consider a person having complicated surgery. Sometimes te patient is cooled down, given medications and the circulation is stopped for up to 40 minutes. Is this person halachically dead?By the way, it is expected that everything will work when circulation is restarted and he is warmed up. So clearly 20-30 minutes without circulation isn’t the bottom line and isn’t set In stone halachically. Irreversible cessation of circulation is also obviously what is being measured. So I ask all the circulation advocates: why exactly is a person dead after they have lost circulation for 20-30 minutes, and why should live brain cells be considered signs of life in one situation, but not the other?

    By the way, this is the second time Dr. Z. Has stated that anatomical misrepresentations have been made. It would be useful to have some proof.

  26. While an interesting issue to ponder, all we are saying here is that the more extreme position will win because stringency in matters of something as vital as life or death will always win.

    So we will be left without a major source of organ donation and will be morally unable to accept it because as Rabbi Tendler points out, it would be morally reprehensible.

  27. R’ Aaron,

    Thank you for your excellent question. A Jew is obligated to safeguard the lives of both fellow Jews as well as Noahides. Every human life in infinitely precious according to Torah law. The only question is whether the Noahide Code empowers the Noahide legislature/judiciary to modify the laws of homicide. If it does (which is RSZA’s belief), then we can tell the nations of the world what R. Kook told the nations of the world regarding anatomical dissection in medical schools, as Rabbi Beckerman excellently elucidated in previous discussions on this topic. Nobody forced the President’s Commission in 1981 to decide that for Noahides, brain death is death. The President’s Commission decided this itself. [Paranthetically, it would be a great public service for the President’s Commission to release a recording of the testimony it received from HaRav HaGa’on RMDT and HaRav HaGa’on RJDB at that time, if such a recording is available.]

    If the Noahide Code does not empower the Noahide legislature/judiciary to modify the laws of homicide (which RMF raised as a possibility, and his distinguished son-in-law RMDT holds this way as well), then no Jew may ever register for organs. [-This is assuming one accepts S. Spira’s analysis that a brain dead patient is doubtfully dead, doubtfully alive. Such an analysis obviously should be cross-verified by a unanimous consensus of Gedolim working together. There cannot be pluralism on this issue, for the reason explained in my comment yesterday in the News & Links forum, at 10:18 p.m.]

  28. Question #2

    Reb Gil with respect, the entire premise to this question is false unless you hold cardiac death. According to Reb Moshe zatzal’s shitta if the person is brain stem dead (ie. body has not shown any signs of life in the apnea test and is THEN determined to be brain stem dead/no longer breathing) then he is dead. To ask whether a dead person’s condition will get worse is beyond any end of life discussion

  29. Yonatan

    >This is a remarkable statement. Buried within the truthful words about humility and respect is a radical prohibition: According to Dr. Zacharowicz, one may never publicly disagree with a posek! Not only that, but one who does so puts himself “beyond the pale.”

    While I agree with the thrust of your entire comment, you changed his expression “publicly criticize” to “publicly disagree” and then ran with it. “Criticize” and “disagree” are not synonyms, however much one can be me-falpel and show that when one “criticizes” one also disagrees.

  30. Given all the talmedei chachamin here, I am surprised that no one has yet risen to standard established in Eiruvin 13b in regard to this debate:

    מפני מה זכו בית הלל לקבוע הלכה כמותן
    מפני שנוחין ועלובין היו
    ושונין דבריהן ודברי בית שמאי
    ולא עוד שמקדימין דברי בית שמאי לדבריהן

    From what I have seen thus far in this thread, it is just a repeat of the positions previously taken. What would be far more edifying would be to mutually write the truly-balanced brief that can then be used as a closing argument.

    By most accounts, the Va’ad Halacha study paper as it stands does not meet the Beit Hillel standard.

  31. Given all the talmedei chachamin here, I am surprised that no one has yet risen to the standard established in Eiruvin 13b in regard to this debate:

    מפני מה זכו בית הלל לקבוע הלכה כמותן
    מפני שנוחין ועלובין היו
    ושונין דבריהן ודברי בית שמאי
    ולא עוד שמקדימין דברי בית שמאי לדבריהן

    From what I have seen thus far in this thread, it is just a repeat of the positions previously taken. What would be far more edifying would be to mutually write the truly-balanced brief that can then be used as a closing argument.

    By most accounts, the Va’ad Halacha study paper as it stands does not meet the Beit Hillel standard.

  32. As I’ve been following this topic, one question keeps nudging me. I’ve yet to see it addressed it explicitly, and while I’m uncomfortable with what might very well be the answer, it should be raised, I think.

    Here it is: Is it acceptable for Modern Orthodox Jews to say, Yes, a healthy majority of rabbis say one thing, but a healthy majority of rabbis who share my general hashkafa say another thing – though this latter group is a healthy minority of the larger group – so I’ll follow my hashkafic leaders.

    We already do this, no? From attending university to celebrating Yom Ha’Atzmaut, portions of the Orthodox community follow minority opinions that are widely accepted within Modern Orthodoxy but frowned on (at least) by rov poskim. If so, couldn’t the same case be made with brain death, which (arguably) is a Torah U’Mada issue? My sense is that rov poskim don’t endorse brain death (and I’ve always thought it somewhat marginal myself), but among rabbis who cherish Torah U’Mada (and, in Israel, Zionist rabbis, who stress religious-non-religious relations), the position is more widely accepted.

    Should that make a difference for Torah-true, self-respecting Modern Orthodox Jews?

    I’ll just sit back and listen to the responses.

  33. to 10:34 am
    Thanks for your reply. But this does not answer my question. Without a doubt you are right that the noachide law follows the Jewish law in this. But my question was regarding a Jewish person who is not punishable by death like a non-Jew for taking ‘such’ a life. Would he be permitted to.

  34. Steve: My sense is that what you are asking is a definitional question regarding your use of “Modern Orthodox”.

    If Rabbi Brill’s 2005 Edah paper is correct, then I think you will get two different answers depending on whether you use his definition of Centrist Orthodoxy vs. his (undefined) Modern Orthodoxy.

    To wit: “the shift from Modern Orthodoxy to Centrist Orthodoxy that has occurred over the last thirty years. This transformation involved the transfer of authority to roshei yeshivah from pulpit rabbis, the adoption of a pan-halakhic approach to Judaism, an effacing of a self-conscious need to deal with modernity, an increased emphasis on Torah study, especially in the fashionable conceptual manner, and a shifting of the focus of Judaism to the life of a yeshiva student. As an ideology, Centrist Orthodoxy is a clearly defined separate philosophy from Modern Orthodoxy, with clear lines of demarcation delineating who is in the mesorah.”

    So, back to your question, I would venture the answer is “not really” for Modern Orthodox; whereas “yes, definitely” for Centrist Orthodox.

  35. Should that make a difference for Torah-true, self-respecting Modern Orthodox Jews?
    ========================================================
    1. Just to avoid future confusion, if you are into labels, Torah-true is often used as a code word for chareidi

    2.Rov (majority) poskim is an interesting term since one would have to define (i) what is a rov? (rov minyan or rov binyan – do we count up every poseik as an equal weight – do we pull out a gdolometer and weight the vote?) (ii) what is a poseik (does every chaddish rebbi count as one (and only one) what about rabbeim in a litvish Yeshiva… (iii) most importantly – welcome to galut hashechina – certainly once the sanhedrin ceased to exist this became a new issue – since the gdolim (whomever they may be) never sit down to discuss anything and take a vote, the idea of a majority is really dleta kamman and not a real “rov”.

    Bottom line imho a Torah-true, self-respecting Modern Orthodox Jew should continue to do his best to do the ratzon hashem as he understands it, HKB”H will paskin through history (as he always does)
    KT

  36. R’ Steve,

    Yi’yasher kochakha and thank you for your important insights that you raise. In response, I would say there are three distinct issues here:

    (1) Attending university is an example of an important topic that represents a matter of policy, not a matter of Halakhah. [See Contemporary Halakhic Problems IV by RJDB, pp. xv-xix for a description of the difference between policy and Halakhah.] There is no halakhic prohibition with attending university per se; it is hetter gammur, and anyone who claims otherwise is simply guilty of violating “bal tossif”, as Eve did when she told the serpent that it is prohibited for humans to touch the Tree of Knowledge (no pun intended). However, there may be strong policy considerations in one direction or the other. I can see a great Torah scholar arguing (as HaRav HaGa’on R. Nachum Lamm might argue in his beautiful book Torah U-Madda) that there are strong spiritual policy reasons for a Jew to attend university. I can see another great Torah scholar arguing (as HaRav HaGa’on R. Aryeh Malkiel Kotler might argue when asked for guidance by a Lakewood boy) that there are strong spiritual policy reasons for a Jew not to attend university. Elu Va-Elu Divrei E-lo(k)im Chaim. Ultimately, every person must take responsibility for his own life, and decide what is the policy with which he will live; no posek can force any particular policy upon anyone.

    (2) Reciting Hallel on Yom Ha’atzama’ut represents a matter of Halakhah where there is a dispute among the poskim, as catalogued in such responsa (by mere trivial example) as R. Ovadiah Yosef’s Shu”t Yabi’a Omer VI, OC no. 41. Here, “Aseh Lekha Rav”, as we are instructed in the first chapter of Pirkei Avot. There will surely be pluralism in practice here, and that is part of the richness of the Oral Torah, as the gemara in Chagigah 3b explains “kulam me’ro’eh echad nitnu”. [See IM OC 4:25 for philosophical elaboration.]

    (3) The practical definition of death is theologically fundamental to a functioning Orthodox Jewish community. While all the opinions are theoretically legitimate (also apropos Chagigah 3b and IM OC 4:25), in practice there is only one doctrine that can be followed Halakhah Lima’aseh. There are funerals everyday, and a chevra kadisha dare not bury any community member even one second too early (in violation of safek piku’ach nefesh) or even one second too late (in violation of lo talin nivlato al ha’etz, and – where organ donation is applicable – in violation of the piku’ach nefesh of the would-be-recipients of organs).

    In 1991, the most authoritative opinion regarding definition of death that was known was that of RMF/RYBS, as faithfully reported by RMDT and RBW. Therefore, the RCA was morally obligated to rule the way it ruled then, and all the House of Israel was obligated to follow. Very soon after, however, RSZA announced his new analysis. I personally believe that RSZA’s analysis is more sophisticated than that of RMF/RYBS and is therefore more authoritative, and is therefore binding on the House of Israel. But what does S. Spira know? This is a matter that needs to be verified by a unanimous consensus of Gedolei Yisra’el. There cannot be pluralism in practice on the definition of death.

  37. I would like to add a question:
    if the widely held opnion within most medical staff is to accept brain death as death, and if we assume that the halachah can’t accept brain death as death, would a jew have a halachic problem getting treatment for a very sick person at a (non-jewish) hospital? taking into consideration that if the sick person reaches brain death the hospital will not want to allocate recources to someone they consider dead.

  38. I wonder if we are making this a tad harder than it need be by raising issues that may well be irrelevant. First, the idea of total brain death seems totally foreign to halakha; we have been known to bury people within hours of their death, when brain activity has not ceased.

    Second, if 1) brain stem death occurs after (and confirms) the inability to EVER restore the ability to breathe on one’s own, and 2) if the inability to breathe on one’s own defines death, then why is there any question concerning brain stem death as being definitive halakhically? Are 1) or 2) or both disputed? 1) is a medical question and 2) is a halakhic one. What am I missing?

  39. Dr. Bill,
    Thank you for your excellent question. This issue is that the Chatam Sofer ruled that a chevra kadisha does not bury a member of the communuty until consciousness, respiration and circulation have ceased irreversibly. Thus, we are trapped by the Chatam Sofer.

  40. “This is a matter that needs to be verified by a unanimous consensus of Gedolei Yisra’el.”

    But That’s exactly the problem; there can be no unanimity because there is serious disagreement. Even if your utopian plea for all the gedolim to get together in one room to decide this issue would come true — which would be miraculous — isn’t it a bit presumptuous to expect TWO miracles, the second being that they all would agree?

    Which, to tie thsi into another comment, I don’t believe that “ask your rabbi” is the solution. Everyone who has participated in this duscussion, or whoi reads the Jewish Week etc., knows that there are two very different opinions regarding time of death in halacha. So whatever an individual decides, they have halachic support for it. Therefore, after discussing the issue with someone whose halachic knowledge, wisdom and judgment you respect, the call really comes down to the individual making the decision, based on their own haskafic and halachic values.

  41. Shalom Spira, Thank you for your answer. If it not the text of the gemara, rishonim and the SA but only the Chatam Sofer who placed new requirements on when one is to be considered dead, then might not modern day brain stem tests be viewed as even more stringent than what the Chatam Sofer required beyond respiration? I also wonder if consciousness, respiration and circulation have ceased irreversibly and are only maintained artificially, might the Chatam Sofer also condider one to have died? Given medical knowledge in his day he was machmir one way; given modern tests for brain stem death perhaps we can be machmir differently?

    Parenthetically, i wonder what role the various impending government efforts to delay burial played in motivating the stringencies he imposed? Our current circumstance seems quite the reverse.

  42. The chatam sofer did not mean circulation in any way.

  43. Dr. Bill,
    Thank you. This question you pose is fundamental: Did the Chatam Sofer specify circulatory arrest because circulation is the last benefit that a person’s body maintains from the last respiration taken (e.g. R. Shabtai Rappaport’s interpretation of Chatam Sofer), and therefore the brain dead patient is doubtfully alive pursuant to the last breath he independently took many days ago (since if he hadn’t breathed many days ago, he would have since decomposed, and decomposition is certainly proof of death apropos Niddah 69b), or did the Chatam Sofer specify circulatory arrest because circulatory arrest merely confirms that respiratory arrest is irreversible, and therefore a brain dead patient is dead, given our sophisticated medical understanding which greatly exceeds that of Chatam Sofer?

  44. This issue is that the Chatam Sofer ruled that a chevra kadisha does not bury a member of the communuty until consciousness, respiration and circulation have ceased irreversibly.

    That’s not quite accurate. What he ruled was that whenever these have ceased, it is by definition irreversible – in opposition to the non-Jewish doctors who said that it’s possible for them to restart. Now that we have CPR and so on, we insist on it being irreversible – but Chasam Sofer was specifically ruling out that as being possible. People are reading a position into the Chasam Sofer that he did not hold of.

  45. R’ Spira, I agree with Dr. Bill’s reaction to your comment that we are bound by the Chatam Sofer’s requirement that both breathing and heart function be absent for a death declaration. The gemara in Yoma 85a appears to treat breathing as the primary (if not only) criterion of life with heart/chest examination entertained (according to one tana’itic opinion) only if it is more accessible than the nostrils. The mention of heart/chest examination there need not imply some blood circulation criterion in that only the rise and fall of the chest/abdominal cavity may be intended – as noted by Rabbi Reifman. The Shulchan Aruch also focuses only on breathing as a life/death criterion. Why, then, should the view of the Chatam Sofer override such considertions. Of course, Harav Moshe Sofer was an outstanding rabbinic figure and posek in the 19th century. However, he saw fit to dismiss the views of both Rashi and Tosafot on another biological issue in the light of the medical knowledge of his time – as noted by R’ Slifkin in his blog. Why, then, can’t we overrule his pesak on death criteria based on the still greater medical knowledge of our time? You may argue that in such grave matters, the Chatam Sofer’s view must be considered. However, that chumrah also leads to a kulah in that the burial of a person judged by medical experts to be dead is unnecessarily delayed. If the possibility that the demise of a person clinging in some way to life is hastened by removal of organs is considered overriding, what about the consideration that the soul ‘suffers’ because it can’t leave the body until the latter begins to decompose? Then, too, why should a matching recipient be deprived of a potentially life-saving organ transplant? Thus, there are grave consequences for either stance in the brain-stem death issue. It should, therefore, not be a simple matter of following the view of major contemporary poskim, but of a heart-felt reaction by family to their situation based on the presumed or previously stated wishes of the patient with possible input from a sympathetic and knowledgeable rov.

  46. R. Sflikin,

    Thank you and yi’yasher kochakha for your kind and learned response, which requires me to reread the Chatam Sofer. You are correct that there was no cardipolumnoary resuscitation in the time of Chatam Sofer, and so Chatam Sofer could not have referred to it explicitly. However, RMF implicitly reads the concept of cardiopulmonary resuscitation into Chatam Sofer, in IM YD 2:146, paragraph that begins with the words “umah shekivod torato harav dan lihakel”. There, RMF refers to the incident of the person in Semachot 8:1 who was misdiagnosed as dead, an event which (together with the other episode in Semachot 8:1 and the third episode of Choni Hami’agel) is dismissed by Chatam Sofer as a once-in-a-millenium event which does not even rise to the threshold of safek piku’ach nefesh. RMF infers from Chatam Sofer that, nowadays, when we know cardiopulmonary resuscitation, it’s no longer a once-in-a-millenium event that a patient whose respiration and circulation ceases should be restored, and so Chatam Sofer would regard cardiopulmonary resuscitation as part of piku’ach nefesh. Thus, in effect, the signs of death that Chatam Sofer identified must be irreversible.
    http://www.hebrewbooks.org/pdfpager.aspx?req=919&st=&pgnum=246

    A similar approach to the Chatam Sofer is taken by RSZA in Shulchan Shelomoh, Erkei Refu’ah II, p. 34. RSZA doesn’t mention the cases of misdiagnosed death in Semachot 8:1 or Choni Hame’agel [-perhaps because he didn’t want to only copy RMF’s responsum], but RSZA compares cardiopulmonary resuscitation to the change in nature that has occurred since the time of Chatam Sofer, when [like in the time of Chazal] eight-month-old-fetuses were automatically considered dead upon birth, and nowadays when they are regarded as alive. As mentioned in a previous forum, although neither RMF nor RSZA employ the expression, it seems to me (S. Spira) that what they are saying in reading the Chatam Sofer is “yarad choli la’olam” apropos the gemara in Megillah 21a. In other words, our ancestors were so strong that they breathed until they died. Nowadays, we are weaker than our ancestors, and we stop breathing even before we die (lo aleinu). The only difference between RMF and RSZA is that RMF will say once the breathing has stopped long enough for the brain-stem to die, now finally we can say “Barukh Dayan Emet”, the patient is dead, whereas RSZA will claim that once the breathing has stopped long enough for the circulation to irreversibly cease (or for every brain cell to die, according to RSZA’s interpretation of Eli Hakohen), now finally the patient is dead.

  47. R’ Y. Aharon,

    I agree with everything you have written (not that you require my agreement). It is precisely for this reason that I highly commend the RCA for ruling in 1991 that brain death=death. If I was there then (which I couldn’t have been, since I just became bar mitzvah that year), I would have voted with HaRav HaGa’on RMDT. That was the very very best information the RCA had at the time. The only problem is that the RCA was then repudiated by RSZA. [As for Shulchan Arukh, one could arguably read circulation into YD 67:1.] So, what do we do now? As you say, the stakes are very high on either side of the question, and it is not clear “who should be entitled to an opinion” (to quote RHS’s 1988 lecture).

    You offer an impressive philosophical argument that – even if we should hypothetically assume that a brain dead patient might be alive – we must avoid causing suffering to the soul of the brain dead patient. But I can counter with a philosophical argument that it is an enormous merit to the soul of brain dead patient to be artificially kept on a machine for the maximum amount of time technologically conceivable, pursuant to what RJDB writes in Bioethical Dilemmas I, pp. 113-129. In particular, RJDB compares all of humanity to a large musical orchestra. Some musicians are silent, but their very existence on stage contributes to the visual majesty of the performance. Likewise, argues RJDB, the continued presence of the brain dead patient in the intensive care unit contributes to the perceived Majesty of HKB”H.

    I agree with R’ Joseph Kaplan that there is no way this can be paskened by the Mara Di’atra of the family of the brain dead patient. What will the Mara Di’atra do – arbitrarily flip a coin whether to telephone RJDB or RMDT? Perhaps more fruitful will be for Richard Joel to respectfully ask the Rashei Yeshiva who lead his institution: “Shim’u Na Rabbotai, Dayanim Mumchim, please work this out together. I’ll pay you each ten million dollars a day to do so. Humanity needs your guidance.”

  48. R’ Spira wrote:
    “Likewise, argues RJDB, the continued presence of the brain dead patient in the intensive care unit contributes to the perceived Majesty of HKB”H”.

    That is a very telling comment and gets to the heart of what I believe is the conceptual or lomdus behind this machlokes. Does a life without dignity have the same value as a life with dignity. That is also the lomdus behind the machlokes achronim about yaharag veal yavor in regards to a human that is a treifa. This is also the lomdus behind different opinions regarding abortion. What is a human life in the Torah? Is it just a beating heart or is it more than that? A good litmus test would be to ask yourself what you think about R’ Bleich’s statement that “the continued presence of the brain dead patient in the intensive care unit contributes to the perceived Majesty of HKB”H”…
    …Hameivin Yavin

  49. Rav Spira:

    I have moved my comments to this thread.

    You wrote on the other thread that Rav Zalman Nechemiah has adopted the position of his FIL as regards to Brain Death and pointed to the RCA paper as you proof.

    I do not believe you are correct.

    The RCA Paper indicates that Rav Zalman Nechemiah still holds that one should ask his own Rav as regards to the shaiylah of Brian Death. It also says that he takes no stand on the matter, even after (because of?) being pressed by Rav Willig and Rav Wiener.

    Clearly, he has not adopted the position you attribute to RSZA.

  50. Rav Spira wrote:

    “Likewise, argues RJDB, the continued presence of the brain dead patient in the intensive care unit contributes to the perceived Majesty of HKB”H”.

    I cannot comment as to whether the factoid, it were true, says more about the capabilities of technology than it does about the majesty of the KB”H, but I wonder whether Rav Bleich’s assumption is even true.

    Are there, in fact, Brain Dead patients occupying our intensive care units?

  51. I am not familiar enough with the various opinions. but how can one insist on a total brain death (versus brain stem) based definition? what source could there possibly be to support the brain cells ceasing to function as the definition of death given overwhelming evidence that we bury people earlier? if you are not dead before, why are you dead after? i know some argue that it is the equivalent of decapitation. that seems unreasonable because a decapitated head still has brain activity! decapitation severs the link to the body – something that more closely approximates brain stem based definitions of death?

  52. Leon Zacharowicz MD

    A few responses:

    1) I do not recall a single instance wherein Mr. Robby Berman asked me to refer to him as Mr. Berman, or Robby Berman. I certainly did not intend any slight. Interestingly, in the recent JPost article, “US Rabbis avoid a clear stance on brain-stem death” (1/10/11), there is the following quote attributed to a strong, vocal supporter of HODS:

    “Their attempt to restate opinions of the supporters, such as Feinstein and the [Israeli] Chief Rabbinate can only have been an intentional effort to retract what was the standard of the RCA … and a violation of what has always been the RCA policy of supporting the Chief Rabbinate,” he continued.

    I did not notice any protest by Robby Berman or anyone else of this slight of Rav Moshe Feinstein ztl, in an internationally read publication.

    It is standard in professional communications to use the last name. I allowed this when I was the editor of a medical journal.

    Also, I have never spoken directly with Mr. Berman, except in answering some of his questions at a YU conference, so I was not comfortable with “Robby Berman.”

    Nevertheless, for the record: Mr. Berman, no slight was intended, and should I in the future refer to you as Berman or in way to which you take offense, please forgive me.

    2) I am at a loss regarding Mr. Berman’s comparison of a human being to a football. I had no nefarious intention in using the phrase “life-support” to describe the ventilator, the IVs, and all the other stuff used to keep the body (some would say person) alive in a patient declared “brain dead.” There are no less than 280,000 references to “brain death removal of life support” in a Google search I just performed. Trust me, the thousands of us who use this term are not doing so necessarily due to a particular bias.

    3) Mr. Berman suggests I study “the Talmud” (in toto, it seems) and the writings of Rabbi Aharon Lichtenstein after he misstates the issues I raised with regard to the paragraph of the online public statement publicly accusing so many distinguished rabbis of holding a “morally untenable” position. Yet, Rabbi Dr. Avraham Steinberg–with whom I had the privilege of spending time in a summer elective in 1989–has written that in essence Jewish medical ethics can be reduced to medical halacha.

    The idea that one should use public policy considerations, such as trying to save lives, to determine which halachic viewpoint one should follow in a matter of possible retzicha be’yadayim is amazing. We do everything to save someone who might be alive (as in the sugya in Yoma, about how one defines death), we violate all but the three cardinal laws. Such a “novel” idea should be presented in a proper internal manner for halachic consideration, not in an online statement, in my view. I am certain that Rabbi Dr. Steinberg would never sign on to such an online statement. Ethicists of the stature of Prof. Steinberg have always striven to fight the “milchamta shel Torah” within the proper parameters.

    While Mr. Berman understandably has strong concerns about being treated with respect, he apparently does not evidence the same concern with respect to the public degradation of the dozens of major rabbinic authorities–and their hundreds of thousands of followers– who maintain that it is halachically acceptable for someone who has not agreed to “donate” an organ to receive an organ that was removed from a “donor.” As I stated, this public statement, if made public policy, can and will lead to the death of potential organ recipients if they or their parents do not agree to sign organ donor cards.

    Would Mr. Berman agree that children or adults who are J-Witnesses should not receive a blood transfusion, because they refuse to donate blood? How about Buddhists who do not accept “brain death”: should they be denied organs? Will the rabbis who signed onto the online public statement include these groups in their list of those who hold “morally untenable” positions? How about those who are murderers: should they be taken off the list because they choose to kill, rather than save lives?

    While my analogies are imperfect, I am concerned about this radical departure from the traditional notion of medical ethics, wherein we treat patients based on need, without consideration to to what ethnic group or religious group they are a part of. In Israel, a severely wounded terrorist is given priority in medical care over a moderately wounded victim, because of this principle of medical ethics. Is it really a good idea to eliminate that principle?

    4) As a child of a survivor and son-in-law of two survivors, I do not wish respond to Mr. Berman’s bizarre remark about the Holocaust.

    5) I’m saddened by Mr. Berman’s suggestion that the intent of my remarks in my post were to “market” the international yarchei kallah series, which offers participants the chance to sit and learn sugyas with major halachic authorities ranging from Y.U. to the Eidah Chareidis.

    I have never made a penny off this program. The major poskim have never made a penny. (They come during their vacation, out of respect for Rav Yaakov Weiner, and to further halachic understanding of these sugyos. In one case, a major posek came with his kallah, during the first weeks of their marriage, to give a shiur.)

    My understanding is that JCR requests a donation to help pay for the expenses of its kollel and in particular to reimburse the kollel fellows who give up one week of their 3-week summer vacation to sit and learn with doctors.

    I respect the fact that Mr. Berman presumably earns a living from the advocacy group he founded, and perhaps benefits from the skills of the marketing executive he has on his board of directors (none of which are rabbis). Why deny the kollel fellows some recompense for their dedication?

    By the way, the Arichas Yomim program of Agudath Israel of America is co-sponsoring, together with Rav Weiner’s JCR program, a one-day yom iyun–free of charge, as usual–on end-of-life issues on Sunday, Feb. 20th, as I recall, in Congregation Beth Torah in Brooklyn.

    As for Mr. Berman’s suggestion regarding fundraising in the Five Towns, I have never done any fundraising for the yarchei kallah. Mr. Berman might wish to offer his experience and stories of success in that regard to JCR, however. The more we support Torah education in medical ethics, the better!

    Respectfully,

    Leon Zacharowicz

  53. Leon Zacharowicz MD

    IN REPLY TO CHARDAL:

    “Chardal” is not comfortable using his or her name but is apparently comfortable with anonymously accusing the potential recipients of organs which have already been removed from a “brain dead” patients of being immoral. Yet, they are merely following the halachic rulings of Rav Elyashiv and others in this regard. I have provided my understanding of the rationale of that decision, which is that after the organs have been removed, one is not perforce required to decline to receive such an organ because one’s rav holds that one cannot ‘donate’ in such manner.

    It is okay to be uncomfortable with this ruling. Understand, however, that in the China organ case, Rav Elyashiv forbade Jews from going to China to receive organs from executed Chinese prisoners, out of fear that these condemned criminals might be put to death sooner than they would have, had the potential recipient not arrived in China.

    It is clear that Rav Elyashiv’s view is nuanced, and is based on his understanding of the halachic and perhaps even the hashkafic considerations in each case. (I don’t know exactly his reasoning, I am just surmising from what others have said.)

    It is understandable that one feel uncomfortable with such a ruling. The next appropriate step would be to seek to better understand the underlining principles which might have motivated that psak. One could speak with the rabbis who have learned this or related sugyas with Rav Elyashiv. One could seek an audience with Rav Elyashiv. There are many appropriate ways to address one’s concerns in a proper venue, in a manner befitting both the student and the teacher.

    To me, going public on the internet and announcing to billions of potential readers online that these rabbis and their followers hold a “morally untenable” position is divisive at best.

    As for Chardal’s seeming suggestion that one should incorporate outside ideas about history and the like into halachic decision-making, I refer the reader to INSIDERS AND OUTSIDERS OF TORAH, by the late and great Rav Chaim Zimmerman ztl. I wonder if we would apply the same approach to physics. Instead of deciding controversies in physics using the rules of physics and allowing leading physicists to fight it out with one another in their journals, etc, we can include outside influences, such as history, literature, etc… Obviously, to do so would be to subvert the whole process of halachic reasoning. Rav Moshe Feinstein ztl once reportedly replied to a question written to him by writing back to the rabbi who posed the question that he was influenced by outside ideas, not by Torah. Rav Shlomo Zalman Auerbach ztl reportedly refused to read a halachic sefer because the author had once criticized Rav Kook in an improper fashion, which showed his lack of the necessary objectivity to be a posek.

    Halacha is not a social science.

    As for the libelous claim that I am saying that the blood of the recipient is redder than that of the donor (“shame on you!”), one could view this remark as “fighting words.” I choose to view it as indicative of the inability or unwillingness of this anonymous and hence cowardly poster to understand the halachic position of the major poskim–plus at best his confusion of my representation of the position of the poskim who hold this view with my personal approach. This is akin to saying that an attorney who represents the position of his client holds that point of view. (Mr. Berman made the same mistake in his letter to the editor of the Five Towns Jewish Times.) Let me be clear: all I have tried to do is represent my own understanding of how halachic authorities have viewed these issues. Few who post here are able or willing to present these views, many choose to mock them, or me. My goal is to present some balance to counteract the absurd situation wherein the viewpoint of so many halachic authorities is misunderstood and lambasted by those of us–myself included–whose understanding of this most complex of suygas in medical halacha is so very limited. As I pointed out in my response to Mr. Berman at the YU conference years ago, this sort of debate would be like Mr. Berman and I arguing about Neils Bohr or Einstein was correct in the Copenhagen conference (I think Bohr was more correct, by the way). My knowledge of physics is so limited that my “opinion” is valueless.

    Respectfully,

    Leon Zacharowicz

  54. In one of the shiurim linked to in this post, someone asked R. Hershel Schachter about receiving organs from China. He responded, to my recollection, that it is technically permissible but should be disallowed because of public policy.

  55. Leon Zacharowicz MD

    REPLY TO ‘YONATAN’:

    Yonatan misquoted me and misconstrued what I said, hopefully due to laziness and not deliberately. Her’s what I said: “Our obligation is to seek knowledge with derech eretz, as befitting students, realizing our own limitations, and NEVER to publicly criticize a posek simply because we do not understand or agree with his psak. To do is beyond the pale.”

    Hiding behind his anonymity, “Yonatan’ goes on to accuse my approach–or rather his twisted understanding / presentation of same, which he calls my “prohibition” — as the “direct cause of most of the evils” in “Torah society” today.

    I stand by my assertion that to publicly criticize a posek simply because one does not understand or agree with his psak is unacceptable. It’s one thing for poskim to engage in “milchamta shel Torah” in their journals and communications. It’s quite another for laymen such as myself to denigrate our scholars in a public online format, accessible to billions of people.

    I might add that it’s quite sad to read the post by Yonatan, which totally miscontrues what I wrote and what I think. My critique was and remains with regard to the public criticism, in a secular newspaper and in online formats accessible to billions, of scholars. If that protest of mine, on behalf of civility and public respect for those sages who may differ with our understanding and moral sense, is the direct cause of evil in the eyes of Yonatan, so be it.

    Respectfully,

    Leon Zacharowicz

  56. Does anyone else remember the Point/Counterpoint skit on SNL between Jane Curtin and Dan Aykroyd?

  57. R’ David Shlomo,
    Thank you for rescuing me from error. You are correct once more. I misrepresented HaRav HaGa’on R. Zalman Nechemiah Goldberg’s position. My apologies. According to the RCA paper, R. Goldberg currently takes no position on the subject of brain death. According to the RCA paper, when R. Goldberg originally equated brain death with death in 1986, this was because R. Goldberg believed that all brain cells had died in the brain dead patient. [For the significance of the need for all brain cells to die, see below.] R. Goldberg subsequently was informed that this was not the case [-which I (S. Spira) assume must have occurred when he read the responsa of his father-in-law which followed in the wake of the 1991 RCA vote], and that some brain cells may actually survive even after brain-stem death. Thus, R. Goldberg currently takes no stand on the matter.

    Dr. Bill,
    Thank you for asking to further clarify RSZA’s position regarding the death of all brain cells. RSZA interpreted Chatam Sofer to mean that circulation is itself a sign of continued manifestation of the last respiration taken. [Parenthetically, I now see that Chatam Sofer specifically refers to the Ramban to Genesis 45:26, a Ramban that identifies cardiac function as being significant. Maybe RSZA got some his cue from that Ramban.] But based on Eli Hakohen, RSZA also believed in virtual decapitation even while circulation continues, so long as every brain cell has died. In other words, according to RSZA’s (controversial) interpretation of Chullin 21a (combined with the Rambam’s Peirush Hamishnayot to Ohalot 1:6), a patient with circulation is dead when there is no longer any power of motion originating from his brain to his body. RSZA thought that as long as any brain cell was alive, it could cause motion somewhere in the body. I’m not a neurophysiologist – and I could be wrong – but I sort of suspect that RSZA’s viewpoint was slightly exaggerated on this matter. I.e., I don’t think an individual surviving brain cell in an otherwise dead brain can generate an action potential sufficently powerful to cause motion somewhere in the body. More realistically, it takes a cluster of surviving brain cells to serve as a functional unit to generate such an action potential. In any event, RSZA regarded the hypothalamus in an otherwise dead brain as a cluster of cells that potentially causes motion, since he regarded the secretion of a chemical into the bloodstream as a form of motion, as explained in the “Brain Death in the News” forum, comment on Dec. 8 at 3:24 p.m.

  58. Leon Zacharowicz MD

    REPLY TO “SHACHAR HA’AMIM”:

    You claim that “many chareidi Jews” are engaged in the organ trade. There are several hundred thousand chareidi Jews. How many do you know for a fact are involved in the organ trade? It is just these sorts of defamatory statements that preclude a serious public discussion.

    REPLY TO ‘GLATT’:

    Glatt, you apparently confuse me with a rav, and your inference about “my” position is not a kosher one. I have no position here. I happen to like red herring, but I don’t see how that term applies here. If a person is decapitated, there are brain cells that are alive (for at least a few seconds), yet the person is dead. The Chatam Sofer gave criteria for the determination of death; read his responsa. As I understand it, today many poskim who do not accept brain death require no evidence of brain function and irreversible cessation of heart beat and respiration. Why not read the RCA paper in this regard? They spent four years working on it, and just because a few people decided to neutralize it by attacking it in the secular media doesnt mean it is worthless.

    Respectfully,

    Leon Zacharowicz

  59. R’IH,
    As in “Jane you ignorant…..”?
    KT

  60. Leon Zacharowicz MD

    REPLY TO JOSEPH KAPLAN:

    Thank you for using your name, as Mr. Beman and Prof. Stadlan have done.

    I’m sorry that you don’t respect the right of adherents to the rulings of rabbis whose reasoning and way of thinking is not agreeable to yours (“we” and “your” sound divisive; I haven’t talked about MY view at all, I’m just trying to represent the view, as best I understand it, of the many poskim who differ with Mr. Kaplan’s take on this matter).

    It’s one thing not to respect the viewpoint of another. It’s quite another matter to publicly rebuke and insult those with whom you disagree (a common theme among some in this debate). Let’s agree to disagree, I’d suggest, but let’s not bring a halachic / moral argument (based it seems on a misunderstanding of the nuanced view of the poskim who will not forbid someone from receiving an organ which was already removed from a ‘donor’) into the public, secular realm.

    Respectfully,

    Leon Zacharowicz

  61. Leon Zacharowicz MD

    RELY TO DR. STADLAN:

    You seem to argue that a lack of any finding of brain function ‘can’ be considered total brain death. I believe Rav Shlomo Zalman Auerbach ztl did not accept this argument, which makes sense, since we are dealing with a matter of possible retzicha. (Again, don’t confuse the messenger with the message.)

    You state that the facts I presented (indicating for example that in some 10% of patients labelled “brain dead” there is evidence of brain function) are irrelevant to the question of whether halacha accepts a neurological definiion of death. Rabbi Bush used the same arguments, you note, which is pleasing to me, as these facts have been considered relevant by major halachic authorities.

    You then state: “In addition if we are going to call for respect for positions of Gedolim, I would ask that you respect the positions of the Gedolim who accept brain death and stop trying to belittle the position.” This reminds me of the classic lawyer’s leading question, “Where were you when you were beating your son?”

    I have never belittled any major rabbinic authority’s halachic position.
    I have tried to represent the viewpoint of halachic authorities attacked for their refusal to accept “brain death” as halachic death. Anyone can read The Jewish Week and other media and see what was said about the distinguished RCA rabbis who prepared the halachic paper. I have criticized those ‘halachic laymen’ who have publicly insulted and demeaned the RCA rabbis in secular media. Many more feel disgusted by these ongoing public attacks on Rabbi Bush and his colleagues, but won’t dignify them with a response. I chose to do so.

    Your paragraph about brain cells and circulation is quite interesting, and worthy of presentation to those authorities who do not accept “brain death.” My short response would be to say “they said so, that’s why” but clearly this is a sevara worth discussing. (I’d invite you to do so at a yarchei kallah but then Mr. Berman might accuse me of marketing or seeking money or some other such inappropriate use of Hirhurim’s site.)

    Dr Stadlan, when we do meet, such as at such a program in Jerusalem, I can introduce you to the unimpeachable source for my disclosure. This is no secret amongst the poskim involved but is not for public discussion.

    Respectfully,

    Leon Zacharowicz

  62. If secretion of chemicals into the bloodstream is an indication of life, then the organs termed ‘endocrine organs’ all are indications of life. Therefore, I could remove a thyroid gland, make sure it had a circulation pump, destroy the rest of the body, and the person would still have to be considered alive, simply because the thyroid was secreting thyroid hormone. I am not sure if this result would be acceptable to any posek.

    Dr. Z. please supply proof of your assertion that RSZA was presented with false information. also, please address the issue I raised in the 9:03 am comment, regarding what exactly the circulation advocates are measuring.

    If you are going to continue to cite the RCA document with approval, you may want to read my critique. I welcome any comments that you may have.

    You also continue to write as if there is no halachic support for defining death by neurological criteria. This is simply false. Please do not defame the Chief Rabbinate, Rav Ovadiah Yosef, Rav Gedalia Dov Schwartz, Rav Tendler, and all the other Rabbonim who hold a position different than yours. Just because you dont agree doesn’t give you license to pretend that they and their positions dont exist. Perhaps if you ‘learned the sugya’ with some of these Rabbonim YOUR position would change.

    Regarding HODS, the organization supports a well accepted halachic position, just like many other groups. You act as if they are acting counter to halacha. Just because you dont agree with the position doesn’t mean that it is counter to Halacha. HODS provides information on both sides of the discussion, and has not as far as I know, deliberately withheld information(like Rabbi Bush did). It is amusing to see you speak glowingly of Rabbi Bush’s paper, and then take pot shots at HODS. In fact Rabbi Bush deliberately manipulated the information in his paper to support the conclusion that he wanted, all the while mantaining that it was a fair and unfettered search for truth. HODS in fact tells you that they have a position, but is willing to post all the relevent information.

    It is fine to call for pleasant conversation, it is another thing to actually engage in it, without the rhetoric and posturing.

  63. Leon Zacharowicz MD

    ‘FINAL’ COMMENTS:

    I’ve spent far more time on this than I would have liked (and presumably others would have liked!).

    Many are outraged by what has transpired recently in the “brain death” debate, and I presume such outrage is felt on “both sides of the aisle.”

    This is perhaps the most complex, and sensitive, of topics in medical halacha. The renowned Rabbi Prof. Avraham Steinberg MD spent many years in “milchamta shel Torah” trying to convince Rav Shlomo Zalman Auerbach ztl, Rav Waldenberg ztl, and others to accept “brain death.” The large majority of haredi poskim in Israel declined to do so and continue to decline to do so.

    That is the unfortunate reality: we have a split amongst halachic authorities, one that is unlikely to be resolved any time in the foreseeable future. The implications of such a split are huge, well beyond public accusations in the Jewish Week and elsewhere, but these implications have so far not resulted in a change in the rulings of these authorities–and I doubt will do so.

    In one of the many yarchei kallahs in which I participated, I head the following story. In the early 1970s, Rav Soloveitchik ztl was approached by a non-haredi rav about a shiur he was planning to give in NYC to a small group about a sensitive topic in medical halacha, less sensitive that the one being discussed here. The Rav absolutely forbade this rav from giving the shiur, arguing forcefully that there was a danger that the shiur’s contents would be leaked to the NY Times and publicized in a way that could harm Yidden.

    It is regrettable that so many of us, who view ourselves as students and heirs of the Rav’s legacy, have chosen to discuss such sensitive topics in a venue which is far more dangerous.

    I have gotten drawn into this debate far beyond what I had desired, in my attempt to defend the honor of the RCA rabbis who authored the internal RCA halachic paper which displeased some. (No, my attempt was not to market the yarchei kallah.)

    Some have decided to shoot the messenger and attribute the viewpoints of authorities I am trting to represent as being my own. I have not shared my personal viewpoint, nor is that relevant to this discussion, anymore than my personal viewpoint on whether Bohr or Einstein had a more correct theory of modern physics in the 1920s.

    I would like to thank those, like Dr. Stadlan, who have tried their best to educate me, and others, about their viewpoint and understanding of the facts and their implications. He and I have locked horns a few times. He is clearly a very intelligent man who has spent some time thinking about and discussing these topics, including time with a distinguished rabbinic authority. While he claims Rav Schwartz bears no responsibility for what he has written, I assume Rav Schartz should bear some of the credit!

    Mr. Berman an I have also had our share of public spats about this and related issues over the years. Mr. Berman has been a tireless advocate for organ transplantation. Many feel he is not an educator but an advocate, and some (myself included) have difficulty accepting some of his tactics over the years. Nevertheless, he clearly is trying to save lives. He deserves acknowledgement for his noble aspirations in this regard. He could have had a successful career as a journalist. He gave that up for this project.

    And now for my suggestion:

    What we all need to do is to find a civil manner, in a private venue, to learn more about these topics. I recall attempts to do so about 20 years ago. These attempts stopped after personal attacks were made at the time. Some rabbis did not get along; some still do not. Tempers flared; that hasn’t changed that much. Those of us who are of the ‘next generation’ should find a way to learn from the mistakes of others and find a way to better grapple with and communicate about such vital issues as “brain death” (no pun intended).

    I feel strongly that the Rav was prescient. I think he would have been shocked and dismayed by some of the comments made here and even more so by comments and letters published in secular media. I am certain Rav Moshe Feinstein ztl would also have been very upset.

    Those of us in the business of rabbinics and of medicine have to understand, and in my view accommodate as best we can, the differing views on this matter. We need to respect each other’s rabbanim and differing opinions.

    Let’s figure out a private venue to learn more. We can try to get rabbanim like Rav Dovid Feinstein shlita to sit and learn with us. I can try to get major poskim to give shiurim. I’ve suggested a yarchei kallah, preferably the one I’m most familiar with as a co-founder, or a similar format. I’m open to other suggestions. What we should NOT do is substitute this sort of exchange of information, mixed in with misinformation and opinion (with some personal attacks thrown in “for good measure”) for a real “milchamta shel Torah,” of truly learning the suyga, arguing it, and learning it again, until we all have a better understanding of the lomdus of each posek’s position, and how each contributes to the totality of Torah understanding on this issue.

    Rabbi Gil Student can contact me if anyone is interested. I will have some time next week to communicate more in this regard.

    At this point, I need to bid adieu, and I wish all those who pursue the “truth of Torah” much success.

    Respectfully,

    Leon Zacharowicz

  64. Thank you, Dr. Stadlan, you are correct. A patient clearly must possess an anatomical reality of “rosho virubo” in order to be halakhically alive, as would emerge from the principles of childbirth and hilkhot sukkah. A disembodied organ (such as a heart or a thyroid gland) from the human being can never be termed a Gavra. RJDB and RHS failed to take cognizance of this crucial point in their discussions of brain death, as did (lihavdil ani hakatan) I in my original manuscript that the RCA paper quoted. Yi’yasher kochakha to you for correcting us.

    But, fortunately, RSZA did not commit the same error as RJDB and RHS. RSZA was only speaking of brain dead patients who still possess an anatomical reality of “rosho virubo”. Thus, I can see the plausibility of RSZA’s opinion that a functioning hypothalamus is a sign of motion originating from a centralized source, thus negating the diagnosis of “physiological decapitation” in the brain dead patient. I can also see the plausibility of disagreeing with RSZA in two opposite directions: RMDT holds that secretion of a chemical into the bloodstream is not motion altogether (the basis for the dispute between RSZA vs. RMDT explained in the previously referenced “Brain Death in the News” comment; whereas other Acharonim hold that Eli Hakohen suffered circulatory arrest (and thus even the death of all brain cells would not suffice).

    Regarding proving irreversibility of circulation, you are correct; this is a major challenge of being definitionally consistent (-the result of the wonderful blessings of resuscitation and heart-lung bypass machines). If one is to interpret Chatam Sofer the way RSZA does, then there will have to be corporeal decomposition of some sort (enough to render reintroduction by circulation via a machine impossible) before a patient is declared dead. As noted in a previous forum, RJDB has seemingly contradicted himself on this point: sometimes he implies that only spontaneous heartbeat is a sign of life (-which, if true, would avoid the need for decomposition to declare death), but other times he implies that even artificial circulation is a sign of life (-in which case there cannot be human death without confirmed putrefaction of some sort).

  65. R. Spira, I have to reiterate that I am impressed not only with your erudition, but willingness to address issues face on that many others are not willing to acknowledge. I am also impressed with how you extracted a tissue definition of life from the details of determining when a baby is considered alive. However, this opinion would mean that if a head was removed from a body, and supported only by machines(there would be no rubo, only rosho), you would have to consider the person dead, even though the head could talk, daven, think, see and otherwise function mentally as a normal person.(This has been done with a monkey, some of it is available on youtube in fact. see the work of Robert White)

    I appreciate Dr. Zacharowicz sentiments and second his calls for a get together of all those who can contribute to the halachic understanding of death and for a calm and thoughtful discussion. Obviously we have disagreed on many issues, but I hope that all of us are interested in just one thing- thoughtful halachic pronouncements with logical coherence based on accurate information. I hope that he realizes that my responses to him were based on a zeal for accuracy, and I apologize if I offended him in the process.

  66. I was going to reply to Dr. Zacharowicz’s reply to me, but since he has bid us adieu I’ll let him have the last word. As for his suggestion,I would suggest that as a first step for a more civil and more private discussion the RCA announce that the paper of the Halacha Committee was a draft, and now that it has received many helpful (and some perhaps not so helpful) comments, the committee, working with others, will take the draft back for further discussion, analysis and revision.

  67. Dr. Zacharowicz,

    I am sorry if my anonymity offends you. I can assure that that I am a “nobody” and my actual identity will contribute nothing to this discussion. I see your criticism of my identity as the latest in a long line of distractions in this debate.

    First, it was all about the public nature of the criticism of the RCA paper.
    Then, it was all about the ethical motives of the pro-BSD crowd.
    Then, it was several distractions regarding science which were quickly shown to be irrelevant by Dr. Stadlan
    Then, it was the “chutzpa” of suggesting that people who listen to their poskim regarding morally questionable positions are indeed acting immoral.

    Everything but answering the substantive criticisms of the paper and the positions it represents.

    I think that in your last comment to me you are appealing to what you think is a shared value that we both have. That is, the idea, that in order to save oneself from sin, one must only faithfully listen to their posek and that is it. This is something to which I can not agree. In ethics, you can not kick responsibility to another person. The fact, that people who will not donate but receive are relying on their posek, not matter how great he is, does not absolve them of being ethically accountable for their position.

    I, for one, think that all people who need it should accept organs. Simply because I do not believe that they should die because of the mistakes of their poskim – NOT because of the halachic sofistery their poskim have developed to justify morally questionable opinions.

    You claim what R’ Elyashiv’s view in nuanced. But I have seen nothing of this nuance from the defenders of his position on the topic. I am not interested in learning his opinion on the matter since I am not his student nor do I belong to a community which has any real relationship with him as a posek. If, as you state, his position is based on the idea that the receipient can accept the organs since they are “already removed.” This is simply factually false in the vast majority of cases. Especially for vital organs, the decision to go ahead and remove the organs is done while the donor is very much still “alive.” If R’ Elyashiv is basing his decision on such misinformation, the real question is how a world class posek can decide issues of life and death based on such misinformation.

    Regarding outside influences and halacha – this I believe is the crux of the ideological devide. I have no doubt that historically, the great poskim of the past considered outside disciplines and reality in their decisions. There are countless such examples and the ideology that says that halacha is a discipline in a categorical bubble uninfluenced by the outside are simply reacting to the challenges of modernity by cutting themselves from it or by constructing a “chinese wall” between the secular disciplines and the Torah one. A wall which did not really exist in pre-modern times. The Sridei Eish adopted the meiri regarding Jewish/Gentile distinctions based on ethical considerations, not textual ones. Rav Unterman paskened regarding saving gentile life on shabbat based on similar considerations. Rabbeinu Gershom banned poligamy based on ethical/social considerations, not textual ones. And the list can go on and on.

  68. Shachar Ha'amim

    Hirhurim – I don’t know what facts need to be established before setting a rule – based on public policy – that one who doesn’t donate should not receive. Period.

    Just as it is wrong to take organs from China. Just like it is wrong to give donated organs to an alcoholic. It should be wrong to give donated organs to someone who refuses to donate. Period.

    I’m filling out a donor card in Israel today – that’s it

    BTW, for those in Israel – if you fill out a card in 2011 you go to the “head of the line” on January 1, 2012. After that date you have to wait 3 years from signing in order to receive advancement privileges.
    http://www.health.gov.il/transplant/

    So do it now. Don’t wait until the Rabbis become sensible enough to realize that the yes to receive no to donate position is wrong and indefensible

  69. Glatt some questions

    Just as it is wrong to take organs from China. Just like it is wrong to give donated organs to an alcoholic. It should be wrong to give donated organs to someone who refuses to donate. Period.

    I’m filling out a donor card in Israel today – that’s it

    BTW, for those in Israel – if you fill out a card in 2011 you go to the “head of the line” on January 1, 2012. After that date you have to wait 3 years from signing in order to receive advancement privileges.
    http://www.health.gov.il/transplant/

    So do it now. Don’t wait until the Rabbis become sensible enough to realize that the yes to receive no to donate position is wrong and indefensible
    ————————————-

    No Shachar, please do it because you have very strong and warranted halachic basis from many major gedolim to register for an organ donor card.

    And back to the taking but not giving problem…I don’t think it has been mentioned in the hundreds of posts on the topic that no less a gadol than R. Chaim Kanievsky has stated that it is forbidden to be an organ donor recipient because you would be killing the recipient. And Rabbi Tzvi Flaum, one of the rabbis listed on the RCA document on brain death, admits that “we have a problem” on this video vis a vis the question of taking but not giving organs.

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

    Even within the anti-BSD camp, there is some significant voices being raised questioning the morality and the halacha of taking but not giving.

  70. Shachar Ha'amim

    “No Shachar, please do it because you have very strong and warranted halachic basis from many major gedolim to register for an organ donor card.”

    Glatt – it’s not enough to say “Houston, we have a problem” and not do anything about it. I know that if God forbid I or a member of my family needed an organ to live, that we would take it. So would 98 out of 100 Haredi Jews anywhere around the world. So it has nothing to do with needing a Halachic basis. I don’t need a Halachic basis. Whatever rationale I – and 98 out 100 Haredi Jews
    wiould use to justify taking an organ from someone else (even a non-Jew) in a time of need, is justification enough to sign the card.

    My wife and I BOTH did NOT check the box conditioning the donation on the OK of a religious official acceptable to the family. There is no need for that. This is a simple question or moral decency – it’s not like dipping a milk ladle into a pot of hot chicken soup, or a scratch on the lung of a cow.

    In the recent incident in which famed Israeli soccer player Avi Cohen was in an accident and left brain dead, his families “rabbi” over-rode the wishes of the deceased as indicated on his donor card, b/c his wife wanted him “whole”. Personally, I think that someone like that should be placed on the same list as alcoholics – i.e. no transplant ever for them or their family members – until they sign irrevocable donor cards

  71. Doron Beckerman

    My wife and I BOTH did NOT check the box conditioning the donation on the OK of a religious official acceptable to the family.

    That’s not good. The Chief Rabbinate made their Hetter conditional on checking that box.

    R’ Eliezer Melamed:

    חתימה על טופס לתרומת איברים לאחר המוות
    בצמוד לרשיון הנהיגה של כל אזרח בישראל, מצורפת הצהרה על תרומת איברים לצורך השתלה. וזה נוסח ההצהרה, “בתקווה כי אוכל לעזור לזולת, אני מצווה בזה ותורם לאחר מותי כל איבר שהזולת יוכל להיעזר בו”. והשאלה היא, האם ראוי לחתום על ההצהרה הזו.

    תשובה: כפי שלמדנו בהלכות הקודמות, לדעת רוב הפוסקים, מצוות הצלת נפשות דוחה את מצוות הקבורה וכבוד המת ואיסור ההנאה ממנו (נו”ב, חת”ס, חזו”א ועוד רבים). ועל פי זה כתב הרב ליאור שמותר לתרום איברים, אלא שלא ניתן להגדיר זאת כמצווה, מאחר שיש פוסקים מעטים (בניין ציון) שאוסרים תרומת איברים. אולם הרב גורן זצ”ל פסק שהואיל ומדובר בהצלת נפשות, אין להתחשב בדעת המיעוט, ולפיכך יש מצווה לתרום איברים למען הצלת הזולת.

    אבל למעשה, אין ראוי לחתום על ההצהרה הזו, משום שלמרבה הצער, אין אפשרות כיום לסמוך על מוסדות הרפואה שינהגו על פי כללי ההלכה. ואפילו לחתום על הסכמה לתרום איבר אחד, כגון כליה, לצורך השתלה אין ראוי מפני שני חששות עיקריים. ראשית, בנוגע לקביעת רגע המוות, יש חשש מסוים שמא הרופאים יקבעו שהחולה מת, בשעה שעל פי ההלכה הוא עדיין נחשב חי. ובמצב כזה כמובן שעל-פי ההלכה אסור ליטול איברים מגופו. עוד חשש ישנו, שמא ישתמשו באיבריו לצרכים שאינם נחשבים כפיקוח-נפש.

    גם לדעת הסוברים באופן עקרוני, שלאחר מות המוח אדם מוגדר כמת, ומותר ליטול את ליבו כדי להציל את חייו של אדם אחר, אין להצהיר מראש על תרומת הלב. משום שההיתר מטעם הרבנות הראשית להשתלת לב וכבד ניתן בתנאי, שיהיה פיקוח של רב, שיוודא שאכן כל הבדיקות הנדרשות לברור מות המוח נעשו. אבל משרד הבריאות לא הסכים לשתף רב בתהליכי ההחלטה, ולכן בפועל, אסור להצהיר על תרומת לב וכבד.

    ואף לגבי תרומת כליה, שניתן ליטלה מן המת גם לאחר שהלב פסק מלפעום, עדיין קיים החשש שמא יטלו אותה לפני קביעת המוות על פי ההלכה. ועוד, שפעמים רבות הכליה אינה ראויה כלל להשתלה, ואם היו אנשים יראי-שמיים עוסקים בזה, היו מבררים תחילה אם יש סיכוי שהכליה תתאים להשתלה, ואם יווכחו שלא – יוותרו מראש על נטילתה. אולם רופאים אחרים, עלולים ליטול בחינם את הכליה, ולאחר מכן לזורקה לפח ללא קבורה. ולכן כל זמן שאין וודאות שאנשים יראי-שמיים יהיו שותפים בקבלת ההחלטות הללו, אין להצהיר על תרומת איברים.

    ובמקרה שבית-החולים פנה אל משפחת ההרוג, וביקש מהם כי יסכימו שייטלו מגופת יקירם איברים כדי להציל חיי אחרים. באופן עקרוני ישנה מצווה לתרום, אולם כדי לוודא שהתרומה תיעשה כהלכה, יש להתייעץ עם רב המבין בתחום הרפואה. ונסיים בתקווה שבעתיד יווצר אמון רב יותר בין פוסקי ההלכה ואנשי הרפואה, ואזי תהיה מצווה לחתום על כרטיס התרומה.

    דברים אלו היו נכונים עד שנת תשס”ב, אולם לאחרונה נתבשרנו ששונו הנהלים, וישנה אפשרות כיום להוסיף סעיף בכרטיס התורם, שבו כתוב כי התרומה “בתנאי שאיש דת לפי בחירת המשפחה יאשר את התרומה לאחר מותי”. על כרטיס כזה מצווה לחתום. וזאת בתנאי שהחותם יודע שהוא יכול לסמוך על בני משפחתו שבמקרה וחס וחלילה יצטרכו לאשר את תרומתו אכן ידעו לדרוש פיקוח הלכתי ראוי.

  72. Since my previous question has recieved no response I consider the halacha to be as follows.
    A Jewish doctor may not harvest organs from Jewish patients but he may from non-Jewish patients.
    A non-Jewish doctor may not harvest organs either from Jewish or non-Jewish.
    This is all on the basis that at the time of the ‘harvest’ the patient is not considered dead.

  73. Aaron: I responded above that there is no difference between Jews and gentiles. I guess that was insufficiently clear so let me be absolutely clear: If a Jewish doctor can take organs from a gentile patient, then he can also take it from a non-Jewish patient. If he cannot take them from a Jewish patient, then he can also not take it from a gentile patient. No difference.

  74. Glatt some questions

    Aaron: I responded above that there is no difference between Jews and gentiles. I guess that was insufficiently clear so let me be absolutely clear: If a Jewish doctor can take organs from a gentile patient, then he can also take it from a non-Jewish patient. If he cannot take them from a Jewish patient, then he can also not take it from a gentile patient. No difference.

    ————————————-

    Gil is right. While I have major problems with the one-sided, agenda-driven document by Rabbi Bush on brain death, it never differentiated between Jew and non-Jew with respect to this matter. It’s important that this does not enter into the discussion when it comes to discussing the merits or non merits of the document.

  75. R’ Aaron,

    Thank you for your important question, and for patiently waiting for a response.

    According to RSZA’s analysis, a Jewish physician may never harvest an organ from a brain dead patient, whether the patient is a Noahide or a Jew, since it would be doubtful murder (unless all brain cells are confirmed to have died in the brain dead patient. As noted in my comment yesterday at 10:13 p.m., this latter provision of RSZA could be disputed in two opposite directions).

    However, RSZA innovated the proposal that – if the Noahide legislature/judiciary wishes – it may authorize Noahide physicians to harvest organs from any patient (Noahide or Jewish). As already noted, RSZA’s innovative proposition on this matter is questioned by RMF. It seems to me (S. Spira) that we do not have a sufficiently strong masoret on the Noahide Code to adjudicate between this dispute between RMF and RSZA. Therefore, if I were to be asked Halakhah Lima’aseh by a Noahide physician whether he may harvest an organ from a brain dead patient, I would tell the Noahide physician “Go consult the conference of the seven Torah luminaries identified by the recent RCA statement on brain death.” And my intuition is that the conference would end with the conclusion that this matter remains as a safek, and therefore I would have to tell the Noahide physician “In conclusion, out of doubt, you cannot harvest the organs, and all hospitals throughout the world should stop harvesting organs from brain dead patients.” Of course, my intuition may be wrong, and perhaps a conference of those Torah luminaries would arrive at a different conclusion.

    Now, RJDB quips that – to a very significant extent – the catholic church has the “masoret” on the Noahide Code, and the catholic church deserves great credit for maintaining that masoret.

    http://www.yutorah.org/lectures/lecture.cfm/710199/Rabbi_Dr._J._David_Bleich/Contemporary_Bioethical_Issues_

    But that is obviously not sufficient to pasken this question regarding the Noahide Code, and as RJDB himself acknowledges in the same lecture, (which evidently flows from the halakhic sentiments on how Jews should relate toward the church, expressed by RYBS in “Confrontation” and by RMF in IM YD 3:43).

  76. jew versus non jew is not the issue; willing to take but not give is ethically challenging despite one’s view of its halakhic status. in general one might argue one way in an actual life and death situation, but as public policy it is difficult to maintain as a general POV, unless the notion of ethics beyond halakha is also dismissed. i assume many who maintain the position also deny any validity to ethics beyond halakha; otherwise i would question their ethical compass.

  77. Dr. Leon Zacharowicz, re anonymity, this is blogging. Eschew the medium or deal with it, but raising the non-existent issue of “anonymity” in a medium which makes no pretenses of requiring everyone to name themselves is absurd. Frankly, it is easy as pie to call oneself, you know, Chaim Goldberg or Mendy Stern or Jay Cohen, or even Marilyn Monroe, so long as you don’t know the person, a name like “Chardal” or “Glatt” means no more than a first name-last name combination (which can also be faked quite easily). I can certainly understand the position of people who choose to use their real names and even the ma’alos of doing so, but the medium is what it is. By commenting here you are choosing to enter discourse with people who do not give their names.

    Respectfully
    S. (who is a real person regardless of what I call myself)

  78. What on earth does it mean to say that the ‘Catholic Church’ has the mesora on the Noahide code? Are millions of Aids deaths in Africa due to pig-headed refusal to advocate use of condoms what we would wish on Noahides? What about a policy on abortion that is simply inhumane? Note how the Catholic church is very quick to excommunicate hospitals is which life-saving abortions are performed, but does nothing about child-molesters, or, lehavdil, the Nazi doctors who presided over the concentration camps. Did you ever here of them being excommunicated. Or perhaps the Church’s approach to stem-cell research, which gives up on the most promising medical technologies due to ridiculous dogma.

  79. “it never differentiated between Jew and non-Jew with respect to this matter.”

    It may not have “differentiated between Jew and non-Jew” explicitly, but a reasonable case can me made that it did do just that through calculated ommission.

    To be specific, to the extent the Va’ad Halacha depends on RSZA precedent (superseding the RMF precedent), it opened this issue since RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population), but, per the referenced letter to R. Feivel Cohen, permitted receiving BSD organs in the US (where Jews happen to be 2% of the population).

    A choice was made not to articulate these as separable piskei din as they occurred in time and place. By not carefully delineating their context, this issue can legitimately be called to account – as it has.

  80. R’ J.,
    Thank you for raising these important questions. Here is an excerpt of RJDB’s exact words verbatim:

    “I hear tell that there is some moral tradition out there that takes this position, that says in effect that an abortion can never be sanctioned under any circumstances, even to preserve the life of the mother. And I submit that that position was transmitted to them some time way back in the early days of history by Jews, because they have the mesorah of the Sheva Mitzvos Bnei Noach that was transmitted to them by their teachers in Antiquity, who happenned to have been Jews.”

    (22:42 – 23:37 into the recording)

    Similarly, in Bioethical Dilemmas II, pp. 228-229, RJDB congratulates the catholic church for convincing (then-President) George W. Bush to discourage stem cell research.

    Regarding prevention of HIV spread in Africa, RJDB fully agrees with you in Benetivot Hahalakhah III, pp. 49-64. He holds that HIV infection control is consistent with the Noahide Code (contrary to the opinion of the catholic church).

    Regarding the Holocaust, you are correct: this was clearly both an awesomely terrifying violation of the Noahide Code, as well as an awesome Kiddush Hashem that six million Jews gave their lives for being Jews. RYBS and RMF both emphasize this fact in their respective responsa (slightly different as their responsa may be) in absolutely forbidding theological dialogue with outside religions.

  81. IH: The RCA paper did not depend on the RSZA precedent (nor did it reach any final conclusion). RSZA’s ruling was one of many that allows receipt of BSD organs, including those by R. Ahron Soloveichik, R. Hershel Schachter and others. I don’t know that any of them differentiate between Israel and the US. I haven’t seen it in their published writings. Please read the paper.

  82. Gil, I did scan the paper before commenting on any of these threads, although I admit that I did not study it in detail.

    I focused on RSZA because it was yourself who comdemned Rabbi Riskin et al. stating they were disrespectful of RSZA. And, you may recall that several hundred comments discussing the paper revolved around RSZA. So, which way is it?

  83. I picked RSZA because he was the most universally revered. It is disrespectful of many other poskim, as well.

  84. Nonetheless, it was you who volunteered and repeated multiple times what I summarized above. The ommission of this salient information in the study paper makes the Jew vs non-Jew issue a legitimate point of debate. As it has been (and continues to be).

    Or do you believe in conspiracy theories and this was some plot cooked up by a cadre of people with a specific agenda?

  85. “The ommission of this salient information in the study paper makes the Jew vs non-Jew issue a legitimate point of debate.”

    What? I don’t follow that logic at all. Its omission makes it a non-issue.

  86. As far as I understand when it comes to a Jew killing a gentile different laws exist which I wont go into on a public blog.
    Therefore I would also like ‘reasons’ why my previous post is not correct.
    Or should I put it even better. Let us say it is a sofek when death occurs one should be able to go ‘lkula’ in the case I mentioned.

  87. R’ IH,

    Thank you for your excellent points. I will take the responsibility for capitalizing on RSZA. It is my hypothesis that there was a historical progression of establishing the normative Halakhah on the subject of brain death (like the townspeople of Rabbi Eliezer in Shabbat 130a). Originally the normative Halakhah was like RMF/RYBS that brain death=death. [On this point I am slightly digressing from the RCA paper (with all due respect to the authors, who are tzaddikim gemurim). I hold there is no need for derishah vachakirah vis-à-vis the rulings of RMF and RYBS. I fully believe the testimony of RDF, RMDT and RBW.] It was RSZA who tipped the scales in the other direction, to persuasively interpret the Chatam Sofer to suggest that brain death might (possibly) only be doubtful death. I don’t regard R. Aharon Soloveitchik’s justification to receive organs based on Nedarim 22a as compelling, seeing as he is clearly refuted by RSZA on that point. To my mind, the only possible justification to register for organs is RSZA’s innovative proposal regarding the Noahide Code, a proposal which is itself questioned by RMF. That’s part of the reason why a conference of Gedolim is so urgent. If one is to assume that a brain dead patient is doubtfully alive, then I think we need to be morally consistent and ask all Jews to refrain from registering for organs, unless we can find proof to vindicate RSZA’s innovative proposal.

  88. True or false for each of these statement:

    1. The paper articulates the legitimacy of being restrictive in donation, put permissive in accepting.

    2. The paper uses RSZA (among others) in defending this position.

    3. The paper (p. 68) quotes RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)

    4. The paper omits that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population).

  89. Dr. Stadlan,

    Thank you for your very kind words. Vihamevarekh yitbarekh. Any aspect of clear writing on my part regarding this topic is only thanks to your erudite exposition which has illuminated the sugya and rescued me from many mistakes. Yi’yasher kochakha.

    Thank you, as well, for bringing to my attention the fascinating monkey head transplants conducted by Robert White. [Indeed, in a 1991 television program featuring actors Jonathan Frakes and Brent Spiner, this phenomenon was presciently foreseen. The script of that program has Frakes remove the cranial unit of Spiner and attach it to a computer, whereupon Spiner’s head continues to function as a normal talking head. “Ein lekha davar she’ein lo makom” (Pirkei Avot ch. 4) – a television script can teach me something of value for Torah study…]

    In IM YD 2:174 (sec. 1), penultimate paragraph, RMF writes that

    “And therefore if someone has been decapitated, even though the head and body both continue to spasmodically move, the person is literally dead. And even if we will say that there is a way to join the body with the head, and he will live, there is no obligation to do on a weekday, such that on Shabbat it will be forbidden. See Bava Batra 74b where Rav Yehudah mentions that there is a precious stone which can resurrect those who have been decapitated, and Hashem Yitbarakh has hidden it from human beings. And it is obvious that even if Hashem Yitbarakh would offer it [the precious stone] to a a person, he would not be obligated to use it to resurrect the dead, for the Torah only requires healing the sick – even to the extent of [obligating] the desecration of Shabbat, but not to resurrect the dead.”

    Thus, for RMF, it would appear that if a human being is decapitated, the human being is dead, even if it is possible to subsequently reconnect the decapitated head with the body. If such a reconnection occurs, we will say that the human being has undergone techi’at hametim.

    RSZA takes a different approach in Shulchan Shelomoh, Erkei Refu’ah I, p. 272. RSZA assumes that decapitation is only death because it is currently irreversible according to our medical technology (at the time he was writing). But if medical technology will improve in the future and it will become possible to reconnect a decapitated head with its body, then it is considered a form of piku’ach nefesh to reconnect the head with the body, and the patient is not dead just because he was decapitated.

    Both RMF and RSZA only address reconnecting the decapitated head with the same body, but not with a different body (or a machine, for that matter, which is essentially like a different body). Thus, your question (which has now been proven to be relevant by the monkey case) requires careful investigation.

    According to my hypothesis that a person needs “rosho virubo” to be halakhically alive, indeed such a decapitated head kept “cellularly alive” would be dead, even though the head keeps on talking and davening. The head would presumably have become “artifical intelligence” but would not be alive according to Halakhah. Even though we infer from the sugyot in Eruvin 18a and Menachot 37a that two heads attached to the same body can be considered two different people if they have separate consciousness (and those two different people are both alive according to Halakhah), I would hypothesize that there it might be different because the two heads were born with the same body, and human identity flows from birth, as per “The Problem of Human Identity in Rashi, Rambam and the Tosafists” (in Tradition 41:2). Tzarikh iyun.

  90. R. Shalom – there are varied opinions on the topic of abortion for noahides, sveral of which would allow abortion to save the life of the mother (see the rationalist medical halacha blog for more details). I for one think that it is morally problematic to maintain an absolute prohibition on abortion at all times, and would hope that halacha lema’ase, a posek would be hesitant to sentence someone to death, especially in a case where the fetus would die anyway. Regarding stem cell research, I absolutely disagree with R. Bleich and side with R. Tendler without hesitation. Stem cell research is extremely promsing, dogmatic opposition to it, especially when the halachic problems seem tenuous, is simply unnaceptable.

  91. J: I agree with you about abortion and stem cell research. But I don’t understand your usage of the term “unacceptable”. These are morally complex cases about which reasonable people can disagree. My strong feelings on this subject do not prevent me from seeing things from someone else’s perspective.

  92. Gil – as orthodox Jews we are happy to call non-orthodox positions unnaceptable. Are all orthodox positions legitimate by their very nature? Granted, there are complexities about abortion – but the latter case, in which amazing benefits have already come from using ‘maya be’alma’ which are simply a ball of cells, is very pashut.

  93. R’ J.,

    Thank you and yi’yasher kochakha for the important points you raise. I agree with you that if the fetus will die anyway, then there is no prohibition of abortion. The fetus is then a mere neoplastic growth of sorts, and it is a mitzvah to eliminate the fetus to save the mother.

    The problem of abortion arises, however, when the fetus is not going to die anyway, and now the obstetrician must choose between the life of the mother and the life of the fetus. In this regard, RJDB believes that there is a differentiation of roles between Noahides and Jews: Noahides are commanded (out of doubt) to be passive (and – in effect – save the life of the fetus), whereas Jews are commanded to be active and save the life of the mother. [By analogy: Noahides are commanded to perform melakhah everyday, as per the gemara in Sanhedrin 58b, whereas Jews are commanded – quite the contrary – to keep Shabbat. Likewise, a Noahide lady can escape a marriage by simply walking out of the house, as per Rambam in Hilkhot Melakhim 9:8, whereas a Jewish lady becomes an agunah in the same situation. It’s a differentiation of roles between Noahides and Jews.]

    Thank you for bringing the Rationalist Medical Halacha Blog to my attention. I will make sure to study it, and compare it with RJDB’s approach to Noahide abortion. Maybe our Rosh Yeshiva R. Student can feature a future post on this subject. [Though I’m happy to discuss it further in this forum.]

    Regarding stem cell research, I originally fully shared your sentiment, and so I asked RJDB why we can’t permit it based on a sfek sfeka likula:

    (a) Maybe there is no prohibition of abortion when the embryo is outside a human womb;
    (b) Maybe there is no prohibition of abortion within the first 40 days of gestation.

    RJDB answered me that “mai chazit” bars us from performing what may be an act of homicide, even when there is a sfek sfeka likula. [Maybe, this too, can be discussed in a future post, though I am happy to discuss it further in this forum.]

  94. J: Non-Orthodox positions are outside of the parameters of Eilu Va-Eilu. Is every time you personally are certain of an opinion all other opinions become invalid.

  95. R Gil-Mention was made of RHS’s comments on BSD in the name of RYBS at the OU convention. In light of RMDT’s most current statement, I think that RHS’s most recent comments should be made available for the listening readership herein.

  96. >J: Non-Orthodox positions are outside of the parameters of Eilu Va-Eilu. Is every time you personally are certain of an opinion all other opinions become invalid.

    What are these parameters of eilu veEilu. Is every time someone with orthodox smicha say something it is valid? Since we use our sechel to decide when a non-orthodox person says something whether or not its valid or invalid, why can we not use the same methodology when someone orthodox says something? Is eilu veEilu (which is being used here in a manner contradicted by almost all rishonim) some mystical shield against someone judging the validity or your postions (as long as you are orthodox)?

  97. Doron Beckerman

    Is every time someone with orthodox smicha say something it is valid?

    No.

    Since we use our sechel to decide when a non-orthodox person says something whether or not its valid or invalid, why can we not use the same methodology when someone orthodox says something?

    Because if someone who is an Orthodox Baal Horaah Muvhak (not just Orthodox with Semichah, whose opinion does not have Halachic weight) is aware of the opposing position’s counterproofs and sources, and still maintains his position, he is entitled to his position and it is credited as a Halachically valid one, and can sometimes even be used as a Snif Lehakel. If the Baal Horaah Muvhak maintains his position, then, from the perspective of Halachic theory (even if not in practice) it has not been conclusively disproven.

    The opinion of someone who is not Orthodox has no Halachic weight or standing, irrespective of its ostensible merits.

    Is eilu veEilu (which is being used here in a manner contradicted by almost all rishonim) some mystical shield against someone judging the validity or your postions (as long as you are orthodox)?

    Certainly not. But as long as the Baal Horaah maintains his position, it cannot be conclusively judged invalid, at least in Halachic theory, even if not in practice.

  98. How do you determine if someone is “Orthodox Baal Horaah Muvhak” then, Doron?

  99. IH: There might be a question at the margins but people who are famous poskim, to whom many rabbis go with difficult questions, who publish and speak widely about the most difficult topics, who are recognized by their peers, clearly fit the bill. People like R. Ahron Soloveichik, R. Shlomo Zalman Auerbach and R. Moshe Feinstein were unquestionably ba’alei hora’ah.

    Chardal: Please educate me. Why does this issue nit fit into Eilu Va-Eilu?

  100. Perhaps I misunderstood Doron, but I assumed he was speaking about people who are alive (present tense in his comment); hence, my question drawing him out further on his thoughts.

  101. What I wrote applies to living poskim, as well.

  102. BTW, Gil, if RMF addressed my father z”l as:

    ידידי הרה”ג מוהד”ר פלוני שליט”א

    Does that qualify as Orthodox?

  103. Lav davka. I know a Conservative rabbi to whom the Tzitz Elizer addressed a teshuvah. However, I’ve got nothing against Conservative rabbis. I frequently use their scholarship and respect their opinions. I’ve even published their books! Belonging to the Conservative movement 50 years ago was different than it is today. Some very traditional and believing rabbis who were Orthodox in practice and belief belonged to the movement. But we, as readers and students, have to be very careful about such people because we don’t know their full attitudes to things like the Sinaitic origin of the Torah and the nature of the evolution of halakhah. Did they believe that a vote of members of the Rabbinical Assembly constituted a takanah? Did they historicize halakhic positions? Did they believe in multiple authorship of the Pentateuch? Some did and some did not, and we often don’t know.

  104. You really are entertaining, Gil. Neither my father nor I were ever Conservative. I also have letters from Rabbi Bick, the Lubavitcher Rebbe, etc.

    Your arguments would be more coherent if you stuck to the issues rather than trying to label iconoclasts in orde to avoid debate.

  105. Oh, and some of my best friend are Jews as well 🙂

  106. Back to the subject matter of this thread, yesterday you stated that “omission makes it a non-issue” in regard to Jew vs. non-Jew.

    I disagree. My logic chain is:

    1. The paper articulates the legitimacy of being restrictive in donation, put permissive in accepting.

    2. The paper uses RSZA (among others) in defending this position.

    3. The paper (p. 68) quotes RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)

    4. The paper omits that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population).

    This is selective quotation, which is hardly “an unfettered search for the truth”.

  107. Then I’m sorry. I thought I remembered you saying that your father was Conservative. I don’t think being called a Gaon in a letter is particularly meaningful because that is how polite rabbinic correspondence takes place. But that doesn’t mean he wasn’t a Gaon. He could very well have been and maybe even the greatest posek of his generation.

  108. Shachar Ha'amim

    I don’t know what happned to my response to Doron
    I would hope it gets put back

    basically the gist of it was that the p’sak he quote dto me pre-dates the knesset laws enacted in 2008 which govern determining time of death and organ donations, and were passed with rabbinical approval. Thus there is no need for a religious authority advisor anymore – though the EDI organ donor cards still offer

    I also asked him if he follows the Chief Rabbinate on many other issues including shemitta produce.

  109. Accepted. Thank you. I said he was in regular contact with both RMF and RSL and that we davened in shteiblach with many JTS luminaries (and one from HUC). וְכָל-נְתִיבוֹתֶיהָ שָׁלוֹם

  110. IH: I don’t like anonymity on blogs but that’s a battle I concede that I’ve lost. But you have to be consistent. Either tell us who you are or leave your father (Rabbi Ploni) out of the discussion. And this is from someone who agrees with you on most issues and appreciates the substance of your comments.

  111. Doron Beckerman

    Shachar,

    Thank you for your up-to-date information. Much appreciated.

    I do not follow the Chief Rabbinate’s position on shemitta produce. I don’t follow it on brain death either.

    That doesn’t mean I think you can’t or shouldn’t. Based on my admittedly outdated information, I thought you might want to know what their position was, and if your signing the card was not in accordance with their position, I couldn’t see which valid Halachic position you were following.

    My apologies.

  112. This is an email that was sent last week from the the Maaleh Adumim yeshiva to all students and alumni:

    ב”ה שבט תשע”א

    לכל בוגרי ישיבתנו היקרים נ”י באשר הם,
    שלום וברכה.
    הננו פונים אליכם בבקשה דחופה בענין בעל חשיבות ממדרגה ראשונה. בוודאי כולכם שמעתם לאחרונה על פרשת הכדורגלן שנפטר באורח טראגי, ושלמרות שבחייו חתם על “כרטיס אדי” לתרומת איברים, נמנעה המשפחה מלהתיר לעשות כן, וזאת, לפי דיווחי התקשורת, “בהשפעת הרבנים”.
    מדובר בחילול השם נורא, ובזלזול בהצלת נפשות ממוות. כבר בשנת תשמ”ז פסקו הרבנים הראשיים לישראל דאז, הגרא”א שפירא והגר”מ אליהו זצ”ל, וכן הגר”ש ישראלי זצ”ל שעמד בראש ועדה לענין זה מטעם הרה”ר, וכן הגר”מ פיינשטיין זצ”ל ראש הפוסקים באמריקה (בפסקו האחרון בענין זה), שמוות מוחי הוא מוות גמור על פי ההלכה, ושאחריו ניתן לקחת איברים להשתלה, דהיינו להצלת חייהם של אנשים הנוטים למות. ראש הישיבה שליט”א פרסם את פסקו בעד חתימה על הכרטיס בשו”ת שיח נחום סי’ ע”ט ואף חתם אישית על הכרטיס. מאמר של הח”מ בענין זה פורסם לאחרונה באתר הישיבה, ומאמר הלכתי מפורט יותר פורסם בזמנו בספר ‘קביעת רגע המוות’, בהוצ’ מכון שלזינגר, י-ם תשס”ח.
    לפני כשנתיים נחקק בישראל חוק הקובע את סדרי הקביעה של מוות מוחי, ובו הוכרו בחוק המדינה דרישותיה המדויקות של הרבנות הראשית לישראל. בחוק זה תמכה גם ש”ס, בהסכמתו של הגר”ע יוסף שליט”א. בבתי החולים יש סמכות לקבוע מוות מוחי רק לועדת רופאים אובייקטיבית (שאינם שייכים למחלקה שבה אושפז החולה ולא למחלקת השתלות), ורק על פי התנאים שקבעה בזמנה הרבנות הראשית. בנוסף לכך הועדה חייבת על פי החוק למסור את פרוטוקול קביעת המוות לידי המשפחה לפי דרישתה, על מנת שתקבל עליו אישור של כל רב שתבחר. גם ב”כרטיס אדי” הקיים ישנו סעיף נוסף, למעוניין בכך, המתנה את התרומה בהסכמת איש דת מטעם המשפחה.
    בימים אלה מתנהל דו-שיח בין כמה רבנים מהציונות הדתית לבין אנשי המרכז הלאומי להשתלות, וזאת במטרה להכניס שינויים לא מהותיים לנוסח הכרטיס, וליצור נוסח מעודן יותר, כדי שלא לפתוח פה וכד’.
    בישיבת הר”מים האחרונה בישיבתנו הוחלט, בעידודו של ראש הישיבה שליט”א, לפנות אל כל תלמידינו ובוגרינו, ואחר כך אל כל תלמידי ישיבות ההסדר, לחתום על כרטיס לתרומת איברים. אנו מעוניינים לצאת במבצע החתמה גדול, שיהיה בו משום קידוש השם, ובעיקר: שיגרום לכך שהציבור הרחב של הציונות הדתית יירתם לענין זה, שעד היום הוא בבחינת “הן ולאו ורפי בידיה”, ונמנעת הצלת נפשות מיוסרות מישראל, המשוועות לעזרה.
    לצורך קידום הענין הננו מכינים בדחיפות רשימה של כל התלמידים והבוגרים שלנו (אפשר ורצוי כמובן לצרף בני משפחה) שמוכנים עקרונית לחתום. החתימה בפועל תיעשה רק אחרי ש”ייסגר” המו”מ עם מרכז ההשתלות, וניידע אתכם על כך.
    אנו קוראים לכולכם להעביר שם, ת.ז. וכתובת מגורים. מי לה’ אלינו! להרשמה לחץ כאן
    בשם ראש הישיבה והר”מים
    יצחק שילת

  113. Yi’yasher kochakha, R’ J.I. This e-mail you have publicized is highly valuable, and I believe reinforces my claim for the urgent necessity for a conference of Gedolim on this subject.

    Clearly, HaRav HaGa’on R. Yitzchak Sheilat assumes that it is a Kiddush Hashem that all his students will register to become organ donors based on brain death criteria. Clearly, he further assumes that it is a contradiction (ki’vi’yakhol) to Kiddush Hashem for rabbis to have contacted the soccer star’s family members and to have persuaded them to heroically maintain the soccer star in the ICU without harvesting his organs.

    But the point is that RJDB will say exactly the opposite. RJDB will say that it is a Kiddush Hashem that the rabbis contacted the soccer star’s family members and persuaded them to heroically maintain the soccer star in the ICU without harvesting his organs. And RJDB will say it is a great mitzvah to educated all the students at Sha’alavim about the need to heroically maintain brain dead patients in an ICU.

    Thus, we need the Gedolim to meet face-to-face to adjudicate this matter, so that all humanity will understand the proper moral guidance to follow.

    [See also my most new comment in the “Dog Death” forum of R. Enkin, which sheds further light on the brain death subject.]

  114. It’s a very interesting letter – it demonstrates that by the RZ in Israel, Rav Elyashiv’s pesakim are irrelevant. I think this is a good thing – not because I have anything against Rav Elyashiv’s method of pesak, but because why should a community who doesn’t follow his pesakim, and has its own poskim care about what another community’s posek has to say? It’s sad that this is no longer the case in America, whether for the charedim or the MO; both seem to be constantly looking over their (right) shoulders, except for the YCT style LWMO’s, who have other issues. As an aside, even if Rav Elyashiv thought brain death was death, and no charedi poskim disagreed with him, I am absolutely certain that no charedi yeshiva would ever send this kind of thing out to its talmidim.

  115. R. Shalom – it doesn’t take a great deal of insight to realize that this will never happen, and even if it did, do we really think that one side is going to convince the other to say, ‘I’m sorry, I really screwed this one up, sorry for all the murders/preventable deaths’? Many of the rabbonim who deal with this issue come at it from completely different starting points. Rav Shmuel Vozner and R. Nachum Rabinovitch/R. MD Tendler don’t disagree about this because they simply learn the sugya differently, but because they approach halacha and the canonization of previous halachic material in totally different ways. For R. Tendler, the Chacham Tzvi’s teshuva, although not dismissed outright, is less authoritative because it is based on scientific falsehoods., whereas for R. Shmuel Vozner, the Chacham Tzvi said that the neshama is ‘mishkana beleiv’, end of story (can a neshama live in a heart-lung machine? Can a person on such a machine say elokai neshama?). Every posek must strenuously advocate what he believes is right, and must seek to disprove the other side in the most vigorous way possible (for whoever is wrong is responsible for countless deaths), and each person/community/rav will decide who to go with. It seems, therefore, that both R. Bleich and R. Sheilat are both acting entirely properly. The fact that they think that there are other rabbonim who are terribly wrong, should not stop them promoting their own views.

  116. >Certainly not. But as long as the Baal Horaah maintains his position, it cannot be conclusively judged invalid, at least in Halachic theory, even if not in practice.

    Why? Or I guess the question is what you mean by conclusively. If you mean that I can not be 100% concinved that someone is totally wrong … then that is between me myself and I. No dogmatic assertion or appeal to the authority of he would holds the opinion with which I disagree can change that. The only thing that has a chance is arguments which give validity to the opinion itself. If by conclusively you mean, that I should refrain from stating my criticism publicly or that I should choose my words in such a way as to make it seem like I am less than 100% convinced that the authority is totally wrong on a topic – then it is still problomatic since I don’t think we should hold back just because someone who is much greater than us has an opposite opinion. All in all, absent some universally accepted higher religious legislative body to which everyone would answer (ie, sanhedrin, etc), where the opinion would get its legitimacy through the very nature of the institution, I don’t see how the lowest common denomantor of some abstract and undefined group of “baalei horaa muvhakim” can ever grap such power as you grant them.

    >Chardal: Please educate me. Why does this issue nit fit into Eilu Va-Eilu?

    As far as I have seen most rishonim either limit the category of eilu veEilu to beit shamai and beit hillel, or to the mishna and gemara, or if they extend it further, it is only given that category on a utilitatian level (both sides help us clarify the truth), or at best at a abstract theological level. I have not seen it applicable at a normative halachic level. I, of course could be wrong, but from what I can tell, the application of eilu veEilu to normative halacha is a phenomena we only strongly see in the modern period.

  117. > Every posek must strenuously advocate what he believes is right, and must seek to disprove the other side in the most vigorous way possible (for whoever is wrong is responsible for countless deaths), and each person/community/rav will decide who to go with.<

    100%, and liberal versions of eilu veEliu completely undermine this. The battle needs to be to arive at either rabbinic concensus, or minus that, to battle for the opinions of the lay people who in the end actually make the decisions. If 90% of layity ignore the anti BSD crowd, then that in itself is a sort of halachic veto. What I think will probably happen over the next couple of decades is that nearly all of RZ plus the vast majority of chareidi sephardim will fall on the pro BSD crowd – The ashkenazic chareidi and the RW MO in america will fall into the anti BSD crowd. Then the question will be decided by the next generation of rabbinic authorities but at that point the subhead to the articles on the subject will no longer be that a "minority accept BSD" since by that point, it will not be a minority. We are seeing the historical development of halacha before our very eyes – in many many areas – this is just one of them.

  118. Doron Beckerman

    If you mean that I can not be 100% concinved that someone is totally wrong … then that is between me myself and I. No dogmatic assertion or appeal to the authority of he would holds the opinion with which I disagree can change that.

    No argument there.

    If by conclusively you mean, that I should refrain from stating my criticism publicly or that I should choose my words in such a way as to make it seem like I am less than 100% convinced that the authority is totally wrong on a topic – then it is still problomatic since I don’t think we should hold back just because someone who is much greater than us has an opposite opinion.

    Here I don’t agree. You can believe in anything you want, but until you are somewhere in the Baal Horaah’s league, you should doubt your own ability to conclusively consider his opinion invalid, if he is aware of your counterarguments and still maintains his position. For an edifying illustration of this, see V’aleyhu Lo Yibol vol. II pg. 59, for RSZA’s editing of Rabbi YM Lau’s notes of RSZA’s Shiur

    ויש לדעת שהקשו קושיא גדולה על רש”י
    is changed to
    ויש לדעת דלכאורה קשה על רש”י

    אך דחו את דברי הרמ”א
    is changed to
    אך יש חולקים על הרמ”א

    אך יש להקשות על החזון איש… ואכן תמוהים דבריו מאוד… אך קשה מאוד על החזון איש… ולכן נראים דבריו תמוהים עד מאוד
    is changed to
    אך יש להקשות על החזו”א… ואכן תמוהים דבריו מאוד… אך צ”ע על פירושו של החזו”א
    RSZA deleted the final segment altogether.

    הרב לאו סיפר
    ניגשתי אל הרב ושאלתיו מדוע הוא מחק את הניסוח “קשה מאוד על פירושו של החזו”א, והעדיף במקום זה לכתוב “צ”ע על פירושו של החזו”א”, והרי מקובל לנסח דברים בלשון של קשה מאוד?

    ענה לי הרב: אני יכול לומר “קשה מאוד” על החזון איש!? מי אני שאקשה עליו באופן כזה!? עפר אני תחת כפות רגליו! צריך עיון בחזון איש ותו לא

    All in all, absent some universally accepted higher religious legislative body to which everyone would answer (ie, sanhedrin, etc), where the opinion would get its legitimacy through the very nature of the institution, I don’t see how the lowest common denomantor of some abstract and undefined group of “baalei horaa muvhakim” can ever grap such power as you grant them.

  119. Doron Beckerman

    Sorry, I repeated your last segment there, I forgot I copied and pasted it.

  120. IH, since I can’t email you, could you please email me? I’d like to ask you a question. [email protected]

    Many thanks.

  121. R’ Chardal,

    Thank you and yi’yasher kochakha for the important insights you raise.

    (1) Regarding the parameters of “Elu Va-Elu”, the gemara in Chagigah 3b applies it to all disputes among all the Sages of Israel, not only the disputes of Beit Shammai and Beit Hillel. Now, I can still hypothetically envisage an interpretation of that gemara as applying only to the disputes found in the Talmud. But RMF (IM OC 4:25) applies it even to disputes of poskim to our very day. So, now the question becomes: do we possess any evidence to counter RMF?

    (2) You state that the Sefardic pesak halakhah is to equate brain death with death. I must confess uncertainty on this point. On the one hand, R. Yitzchak Yosef in Yalkut Yosef, Hilkhot Shabbat IV, p. 276 interprets the Chatam Sofer to mean that circulation is a sign of life even if a patient who cannot breathe. On the other hand, R. Shlomo Moshe Amar (in his responsum published on the HODS website, p. 12 of responsum, final paragraph) interprets the Chatam Sofer to mean that circulation is not a sign of life. Both Yalkut Yosef and R. Shlomo Moshe Amar have a warm approbation from R. Ovadiah Yosef. Thus, if I was privileged to be a Sefaradi, I would have to conclude that I am totally uncertainty regarding the proper interpretation of Chatam Sofer, and hence totally uncertain regarding the status of brain death.

    [Also, R. Avigdor Halevi Neventzal writes in his Sichot Lisefer Bemidbar, p. 237, that Sefardic and Ashkenazic Jews are only entitled to follow separate piskei halakhah when it comes to disputes between the Mechaber and the Rema. But for disputes that arise among more recent authorities (specific example given by R. Neventzal – whether one may open soda bottle caps on Shabbat) both Sefardim as well as Ashkenazim must look through all the opinions and come to a clear conclusion.

    In truth, what R. Neventzal is claiming is actually itself subject to dispute among the poskim, as we have discussed in a previous forum (“Lady serving as cantor for Kabbalat Shabbat” post, a few months back). But certainly when it comes to deciding whether a person is alive or dead, where the entire House of Israel is obligated to save the living and bury the dead as well as dismember the dead to save other living patients, it seems obvious to me that there cannot be two different doctrines applied in practice in an Orthodox Jewish community. There must be consensus on who is alive and who is dead. In theory, of course, all the poskim are correct and will receive great reward from Heaven for their opinions, but in practice there can only be one way.]

    R’ J.,

    Thank you for your kind response. Theological dialogie is only impossible when different scholars belong to different religions, as is underscored by “Confrontation” and IM YD 3:43. By contrast, where different scholars belong to the same religion, they can communicate, and – on a matter like brain death which relates to “lo ta’amod al dam re’akha” in both directions – they are halakhically obligated to communicate and reach a consensus, whatever that consensus may be. We all know that RJDB and RMDT are completely righteous Orthodox Jews. They belong to the same religion, B”H. There should be no problem inviting them to communicate with one another. All Richard Joel needs to do is pay them enough money to do so, to recompense them for leaving their day jobs.

    I don’t think anyone committed a transgression here. As you say, both RJDB and RMDT did their best to reach the conclusions that they could reach. Until they realized that they were in serious disagreement with one another, each one’s community was obligated to follow each posek’s verdict (like the townspeople of Rabbi Eliezer in Shabbat 130a). Now, with the recent RCA statement, that is no longer the case. RJDB and RMDT know that they are in serious disagreement with one another how to interpret the Chatam Sofer. RJDB and RMDT know that there are Gedolim on both sides: RMF and RYBS vs. RSZA. At this point, no Jew anywhere is entitled to make any decision about brain death anymore. We must all wait for RJDB and RMDT (and their fellow Gedolim who are alligned with one position or the other) to arrive at a reasonable consensus.

  122. lawrence kaplan

    Maybe I missed this, but I am surprised that no one has mentioned that Rav Nachum Rabinbovitch has ruled that BSD is considered death halakhically. Here is the view of a first class MO posek.

    Rabbi Spira: In light of my first paragraph, the real point of the letter from Maaleh Adumim is not that Rav Shailat considers it a Kiddush ha-Shem for the students of Maaleh Adumim to register as organ donors, but that Rav Rabinowitz thinks so.

  123. Doron Beckerman

    At this point, no Jew anywhere is entitled to make any decision about brain death anymore. We must all wait for RJDB and RMDT (and their fellow Gedolim who are alligned with one position or the other) to arrive at a reasonable consensus.

    R’ Spira, I think you are going too far, for two reasons – both from the Chazon Ish YD 150.

    150:1
    ונראה דהא דאמר בשל תורה הלך אחר המחמיר אינו אלא בשאין אחד מהם רבו, אבל אחד החכמים הוא רבו הלך אחריו אף להקל, ומקרי רבו כל שהוא קרוב לו ושומע שמועותיו תמיד ברוב המצות, ובזה אם יש שני חכמים קרובים לו רשות בידו להחזיק בהוראותיו של אחד מהם ולהחזיקו כרבו והיינו דאמרינן הרוצה לעשות כדברי ב”ש עושה והיינו להחזיקם כרבו ולהלוך אחריהם תמיד בין לקולא בין לחומרא, ודין זה בין בחיי החכם בין לאחר מותו כל שידועות הוראותיו והלכותיו מפי תלמידיו או מפי ספריו. והנה רשאים להלוך אחר רבם אף להקל בשל תורה ואפילו החולקים עליו הם הרבים כל זמן שלא היה מושב ב”ד ודנו זה כנגד זה והכריעו את ההלכה, והיינו דאמרו יבמות יד א’ במקומו של ר”א היו כורתים עצים כו’ במקומו של ריה”ג כו’ ומיהו ב”ש וב”ה אחר ב”ק חשבוהו חכמים כהכרעה של מושב ב”ד

    So to say that nobody can make a decision anymore is, I think, somewhat overstated.

    150:8
    אם אמנם מן הקושי הוא אצלי לבא במשא ומתן עם החכמים שיחיו, ואני מתרחק מזה כמה דאפשר, מצד אחד בטבעי, ומצד השני אין תועלתו מצויה כי אין דעות בנ”א משתוות, ושינוי הדעות הם על הרוב בסיבות מוקדמות יסודיות

    I don’t see anyone changing their positions, which, pretty clearly, are based on differing first priniciples.

  124. lawrence kaplan

    Rabbi Spira: RMDT and RJDB have realized FOR YEARS that they are in serious disagreement with one another on this issue. For anyone who is even slightly familiar with both of these eminent poskim, the idea that they will ever agree on this issue, even if closeted together until eternity, can only be viewed as a complete fantasy.

    I remember that in the early 1990s RMDT spoke in Montreal. He defended the idea of BSD as haakhic death and said that all knowledgeable poskim were now on board. In the question period I noted that RJDB and RAS were evidently of another view — I emphasize that I mentioned them by name– and asked RMDT if he would care to coomment. He replied: “I repeat. No posek who is familiar with both the halakhah and the medical realities disagrees with my view.” QED!

  125. Let me add to what my brother wrote that R. Tendler said something very similar when he discussed this issue in Teaneck in the 1990s. (But I wasn’t the one who asked the question.)

  126. The episode of Nova ScienceNOW that aired on PBS stations last night had a segment on advances in lab-grown organs for transplantation: http://www.pbs.org/wgbh/nova/body/can-we-live-forever.html

    The segment starts at the 07:00 minute mark and ends at 20:40.

  127. Larry and Joseph Kaplan’s post illustrate that the dispute over brain death or brain stem death has had its proponents ( and opponents) for years and that RMDT’s approach has remained consistent both in its content and manner of presentation, both with respect to the elements in support of the thesis that BSD is halachic death and his unfortunate attitude towards other eminent Talmidei Chachamim who have the broad enough shoulders to express a contrary view for decades.

  128. I do think that R Gil or RJR should post a link to RHS’s comments at the OU convention on brain death.

  129. >Here I don’t agree. You can believe in anything you want, but until you are somewhere in the Baal Horaah’s league, you should doubt your own ability to conclusively consider his opinion invalid, if he is aware of your counterarguments and still maintains his position.<

    Here lies the cultural, ideological devide. I see transparency in leadership as an immense value which needs to increase the higher you go on the "chain of command." Challenges to the opinions of the leaders need to be voiced loud and clear AND need to be answered inteligently by said leadership. The very existance of the authority and the fact that they heard the arguments and did not change their mind is simply insufficient to my mind. They MUST give the reasons, whether halachic, meta-halachic, medical or anything else for their decisions. Their power needs to come from their abbility to make well-reasoned and compelling arguments, not from their persona or their achievement in other areas of learning.

    The ultra-reverence that is given to the highest levels of rabbinic leadership is in my eyes counter productive to the search for truth. The layity must be considered and the decisions have to make sense to people who are not elite talmudists. There DOES need to be a minimal common-sense test for public policy decisions. This is of course a much broader issue than medical ethics.

    This is one of the problems with the nature of this debate. We are not just debating which side is right, but also which side has the right to even say anything on the topic. Seems to me, that people will not stop calling rabbinic leaders out when their policies seem problamatic. The question is, will the response ever change from "you have no right to present a public opinion on the matter" to an actual detailed and reasoned answer to the public challenge (along with an increased sensitivity to the importance of transperancy in leadership)

  130. “the dispute over brain death or brain stem death has had its proponents ( and opponents) for years”

    And the kerfuffle is about the Va’ad Halacha’s selectively quotation of RSZA on Page 68 which has led to the statement that “to adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable”.

    This is for the Va’ad Halacha to clarify as they see fit (and silence, too, is a response).

  131. Thank you and yi’yasher kochakhem, R. Student and R’ Steven Brizel, for the audio link to RHS’s most recent remarks on brain death.

    If I may synopsize the remarks: During a question and answer session, RHS is asked what a Moreh Hora’ah should do when faced to adjudicate a case of brain death, given the recent statement of the RCA. RHS responds with a story that after RYBS retired from teaching at RIETS but before he became incapable of conversation, an American Yeshiva boy visited RYBS in Boston and told him the good news that a Moreh Hora’ah was in Boston delivering a lecture on the halakhic status of brain death. RYBS expressed surprise (twice – once in Yiddish and then in English) to the Yeshiva boy, telling him that if the Vilna Ga’on was alive today, he could not adjudicate the status of a brain dead patient. RHS then adds that he wrote an article explaining the sides of the safek of brain death.

    S. Spira’s observation: Although it is not articulated overtly, the implications of RHS’s remarks is that he believes that he has filled in the blanks in RYBS’s overarching ruling. I.e. RYBS correctly diagnosed brain death as a safek, and he (yibadel lichaim) RHS has now elucidated the details of what precisely the safek is. Obviously, RHS’s second-hand testimony of what RYBS said is contradicted by RBW’s testimony that RYBS paskened in 1983/1984 that brain death is definitely death. Apparently, RHS will assert that RYBS changed his position after he spoke to RBW. This is, of course, an enterprise fraught with difficulty, since one may counterclaim that once RYBS retired from teaching at RIETS, he was no longer in a cognitive position to retract his pesak halakhah to RBW. [I never had the awesome privilege to meet RYBS so I can’t comment further on his cognitive capacities before and after retirement.] To my mind, the simpler approach for RHS to take is to note that although RMF equated brain death with death, RSZA understood the Chatam Sofer the way he (RHS) understands the Chatam Sofer.

    In my (flawed) opinion, this also explains RMDT’s remarks to Mori ViRebbi R. Kaplan as well as R’ Joseph Kaplan (-both of whom I thank for their fascinating testimony in this regard) when RMDT visited Teaneck and Montreal in the early 1990’s. RMDT’s pesak halakhah was supremely normative at the beginning of the 1990’s, because basically there was no credible alternative to RMF in learning the Chatam Sofer at that time. [As for RYBS, RMDT followed RBW’s testimony that RYBS agreed with RMF.] This (doubtfully?) changed when RSZA entered the picture, and read a new peshat into the Chatam Sofer. It was RSZA who would claim, based on Chatam Sofer:

    “Since time immemorial, the death of a human being has been established according to Halakhah when the person is laying motionless as a stone, and the respiratory and cardiac functions have completely stopped. This is true only on condition that all efforts at resuscitation have failed, and after waiting 20-30 minutes.”

    (Shulchan Shelomoh, Erkei Refu’ah II, p. 26)

  132. R Gil-thanks for the link. Due to a lack of time, I hope to listen to the shiur in question either Motzaei Shabbos or Sunday.

  133. R. Shalom; the simple fact is that ‘time immemorial’ here means (at the earliest) the late 18th century, as reflected by the fact that there are no teshuvos from before this period which discuss it. The Chasam Sofer is describing how you ensure someone is dead. If RMDT would have lived at the time, he would, have described it in the same way. The most strident brain death advocate would certainly check someone’s heartbeat. R. Shlomo Zalmen’s statement could not have been ritten in the 16th century – veha’raaya – it wasn’t.

  134. Lawrence Kaplan

    Rabbi Spira: I am surprised that you did not respond to Rabbi Beckerman’s citation from the Hazon Ish that the ruling that one must act stringently (le-hahmir) in matters of Torah law subject to dispute applies only when neither of the disputants is one’s Rav, but if one of the diputants is one’s Rav one may follow his view even in the lenient direction (le-hakel).

  135. I thank Mori ViRebbi R. Kaplan for prompting me to respond to R. Beckerman. Moreover, yi’yasher kochakha and thank you to R. Beckerman for presenting the Chazon Ish’s important rulings on the topic of rabbinic sovereignty. In response, I suggest as follows:

    (1) It is true that Chazon Ish regards rabbinic sovereignty as absolute. Others, however, disagree with Chazon Ish. A digest of both positions (in the particular context of the synagogue partition, but which could be applied to brain death as well) is presented on pp. 42-44 of a composition available at http://www.wepapers.com/Papers/129638/Synagogue_Partition

    (2) Even according to Chazon Ish, the absoluteness of rabbinic sovereignty applies only between oneself and his Creator. If I am a full-time student of Reb So-and-So, and Reb So-and-So believes I can open soda bottle caps on Shabbat, I have immunity to follow his ruling and ignore the views of all other poskim, because I believe HKB”H grants me such special immunity. But this will not allow me to take away money from someone else in a Din Torah, as Chazon Ish himself mentions in YD 150:8, because “hamotzi mechaveiro alav hare’ayah”. It seems to me (S. Spira, and, as always, I could be wrong) that – by the same token – I cannot take away someone else’s status as a Gavra just because my posek holds that way. Just as – to take away money from someone else – I need a consensus of poskim, so too – to take the status of living away from someone else – I need a consensus of poskim. It seems to me that this is encompassed in RSZA’s statement (in forbidding Israeli organ transplants dependent on brain death) that “this concept of barei li only applies to a matter pertaining between a person and his Creator, but not to [possibly] spill someone else’s blood” (Shulchan Shelomoh, Erkei Refu’ah II, p. 32). Except that I take RSZA’s logic one step further and it seems to me that even in the Diaspora we have a problem, such that all organ transplants (dependent on brain death) everywhere in the world should be prohibited. This is obviously condemning a lot of people in organ failure to probable death, since they can no longer register for organs (-unless a solution like the one identified by R’ IH in the recent Nova television program is employed. Yi’yasher kochakha, R’ IH; a very nice discovery!) Ergo, an urgent meeting of the Gedolim is needed to verify that all these people should be indeed be condemned to probable death.

  136. Let’s dream a little bit. Who would win a jury trial in the courtroom, between the forces of cardio-respiratory death, and brain stem death? It would be a battle of the experts. The jury will hear the respective credentials. Rav Moshe Dovid Tendler has the Ph.D. in biology from Columbia. His father-in-law, Rav Moshe Feinstein, addressed him, in writing, as HaGaon, HaRav. They collaborated on many medical cases. It may not be Q.E.D., which I had to look up to refresh my memory, but its pretty close.

  137. Elliot: Please do not go there. We don’t want to start discussing the credentials and credibility of various disputants. It will get ugly.

  138. R’ Elliot Pasik,

    Well said, and that’s why before RSZA entered the scene, I am convinced the Halakhah was like RMDT. But then, after the 1991 RCA vote, RSZA arrived. RSZA was also advised by world class medical experts, just like RMF. RSZA specifically acknowledges the major contributions of RMDT to the sugya and identifies him by name (Shulchan Shelomoh, Erkei Refu’ah II, p. 39). But RSZA proceeds to nevertheless rule – contrary to RMDT – that circulation in a brain dead patient is a possible sign of life. So, what do we do now?

    R’ J.,

    Thank you for your important objection (posted at 2:22 a.m.), which I value quite seriously. This is a key question: what did Chatam Sofer mean.

    I am saying that RSZA interpreted Chatam Sofer the way that R. Shabtai Rappaport interprets Chatam Sofer in his HODS interview as well as his HODS debate with R. Tzvi Flaum. Viz., Chatam Sofer is ruling that circulation is an intrinsic sign of life when it benefits from a patient’s breathing. This is also the interpretation to Chatam Sofer offered by R. Gedaliah A. Rabinowitz in his HODS interview. [S. Spira’s observation: Therefore, whether or not the artificial circulation of a brain dead patient is considered to be a legally meaningful sign of life should depend upon the unresolved dispute among the poskim whether a cow’s lactation on Pesach is considered the result of the food it ate many days before Pesach, and we are left with a safek, which parallels RSZA’s safek.]

    But you are offering a different reading of Chatam Sofer. Maybe neither pulse nor hearbeat was important to Chatam Sofer at all. Maybe his reference to circulation was only a way of proving irreversibility of respiratory arrest, and now that we can prove irreversibility of respiratory arrest through brain death diagnosis, we don’t pay attention to circulation. Maybe “ki hadam hu hanafesh” means only that – when a person is breathing – then his circulation carries the soul, but if he is not breathing, circulation is meaningless. Maybe the Chiddushei HaRan to Chullin 32b [where he professes that an animal can live without lungs but not without a heart, which according to RJDB proves that it is circulation and not respiration is the ultimate source of life] should be ignored because Chiddushei HaRabbeinu did not necessarily know the medicine that we know. Maybe… but are you 100% sure… can you disprove RSZA, R. Shabtain Rappaport and R. Gedaliah A. Rabinowitz beyond cavil? This is the 64 * 10^6 dollar question.

    RJDB tried to gloss over this point in his 1977 Tradition article entitled “Neurological Criteria of Death and Time of Death Statutes” (republished in Jewish Bioethics, and republished yet again in “Time of Death in Jewish Law”). RJDB wrote that:

    “Hatam Sofer, Yoreh De’ah no. 338, states that a patient may be pronounced dead only if three criteria are manifest: 1) the patient lies as an “inanimate stone”; 2) no pulse beat is discernible; 3) respiration has ceased. Hatam Sofer adds the forceful statement: “These are the three clinical symtoms of death which have been transmitted to us from the time that the nation of G-d became a holy people. All the forces in the universe will not cause us to deviate from the position of our Holy Torah.”

    However, with all due reverence manifest before RJDB, that is not exactly what Chatam Sofer writes. Chatam Sofer never wrote the words “these are the clinical symptoms of death”. Nevertheless, one might possibly interpret the Chatam Sofer to be saying the same, and such was RSZA’s opinion (as well as R. Shabtai Rappaport and R. Gedaliah A. Rabinowitz).

  139. Glatt some questions

    Who would win a jury trial in the courtroom, between the forces of cardio-respiratory death, and brain stem death?
    ——————-
    Don’t know who would win, but my guess is that RMDT (despite being factually correct in all that he says) would be put in contempt of court 🙂

  140. “Hirhurim on January 28, 2011 at 2:55 pm
    Elliot: Please do not go there. We don’t want to start discussing the credentials and credibility of various disputants. It will get ugly.”

    Really? I view credentials as relevant, and may I add, track record too. R’ Tendler, on some difficult issues, has been way out there, and spot-on. Metzitzah b’peh should be banned. Who can ever forget his magnificent act of raising his hand to stop a mohel from potentially infecting an 8-day old infant? Much longer ago, he reported a confessed “frum” murderer to the police – no mesira there.

    In the legal profession, its up to the jury to assign “weight” of testimony, and credentials play a part. Its up to the jury to assign more or less weight to one particular expert’s testimony because his credentials may exceed those of other experts. At least as far as I’m concerned, I do take into account R’ Tendler’s credentials as a biology Ph.D., and his professional immersion in science for more than one-half century. I’m not saying his credentials and experience are decisive on the issue, but that I give them significant weight.

    As for the “credibility” of the competing experts, I’m not raising that issue. I assume the truthfulness and good faith of all the rabbis.

    An interesting project would be to poll the frum doctors and scientists, and see how they stand on cardio-pulmonary death versus brain stem death. The results of the poll would be another factor in the mix for guiding those members of the hapless religious public who, like me, can’t make up their mind, and look for various points which may tip the decision one way or the other.

  141. Doron Beckerman

    Rabbi Spira,

    Thank you so much for your reference to your paper. It cites many sources I was unaware of, I’ll have to do some research.

    For now – RMF. I skimmed the Diberos, and it seems from section 4 that he agrees with the CI. But I haven’t read it very carefully. Do you have the precise citation where he reverses course?

    Your two citations from Igros Moshe seem to say differently than what you attribute to them.

    The citation from IM EH IV is
    שו”ת אגרות משה אבן העזר חלק ד סימן ק

    דקודם שנפסקה הלכה בלשכת הגזית רשאי כל חכם להורות כדעתו והשואלים אותו צריכין לעשות כמותו בין לקולא בין לחומרא, ומכיון שכל בני המקום היו תלמידיו ושואליו נעשה ממילא הדין לכל בני המקום אף לדורות אחרים הדין כפי שהורה כל זמן שלא קם שם חכם הגדול ממנו בחכמה ובמנין.

    His later reference to Diberos is only regarding what constitutes a Horaah, but does not effect this point.

    The citation from his preface, AFAICT, does not at all indicate that the people in Rabbi Eliezer’s town were unaware that there were those who disagreed. Where do you see that? Indeed, if they were unaware of any dispute (as you claim in order to resolve the contradiction that the CI raises), what did they get rewarded so richly for?

    I will say, however, that RHS in Be’ikvei Hatzon 37, while agreeing that one may follow his Posek even if he is in the minority, based on Eruvin 6b, avers that this is not the case regarding brain death, because:

    מכל מקום הלא מצינו בכ”מ בש”ס דאף דחכם פלוני היה סבור להקל, מכ”מ היה חושש לדעת הבר פלוגתא שלו ובפרט בענין של פיקוח נפש. דאף דהרמ”א כתב בשו”ע יו”ד שמורה הוראה רשאי לפסוק בעניני או”ה ע”פ נטיית הדעת בעלמא, אפילו אם אין לו ראיות חותכות, מכ”מ בדיני נפשות לא אמרינן הכי [וכמבואר אצלנו בספר ארץ הצבי סימן לה] וכן בנידון חמור זה, אפילו לדעת הסוברים שזה שמת מוחו דינו כמת, אין להם ראיות חותכות וברורות אלא נטיית הדעת וסברא בעלמא, אשר בודאי אסור לסמוך ע”ז בעניני פיקוח נפש.

    I’m not sure how applicable this is now, for two reasons:

    1) Is it so that those who hold this way are doing so based only on נטיית הדעת? (Granted that there are no clear-cut proofs, but is it nothing beyond an inclination at this point?)

    2) Is it true that the opinion of Rov Haposkim is that he is not a מת ודאי? I don’t know. If we accept that RMF held of BD, that tips the scales significantly.

    On your second point – re donation it isn’t relevant, and re receiving, don’t Rov Poskim allow it, within certain parameters?

  142. Hirhurim
    Elliot: Please do not go there. We don’t want to start discussing the credentials and credibility of various disputants. It will get ugly.

    Isn’t this exactly what the RCA statement did, at least implicitly, to Rav Tendler and Rav Walfish?? While how one wants to pasken may be one thing, one can not argue that Rav Moshe was against brain stem death withou impugning rav tendler as a reliable witness (something that many don’t seem to have any issue with…)

    Same thing with Rav Walfish – the clear message of the RCA statement is that Rav Walfish lied – or, at best, was too ignorant to properly phrase his question and understand the response of RYBS.

    If you don’t want to go there, have the integrity to condemn those who have…..

  143. Isn’t this exactly what the RCA statement did, at least implicitly, to Rav Tendler and Rav Walfish??

    Yes, and I think that’s an important discussion to have. But a blog’s comments are not the place.

  144. “Shalom Spira on January 28, 2011 at 2:55 pm
    R’ Elliot Pasik,

    Well said, and that’s why before RSZA entered the scene, I am convinced the Halakhah was like RMDT. But then, after the 1991 RCA vote, RSZA arrived. RSZA was also advised by world class medical experts, just like RMF. RSZA specifically acknowledges the major contributions of RMDT to the sugya and identifies him by name (Shulchan Shelomoh, Erkei Refu’ah II, p. 39). But RSZA proceeds to nevertheless rule – contrary to RMDT – that circulation in a brain dead patient is a possible sign of life. So, what do we do now?”

    Wait for artificial organs? One neurologist told me, about 20 years.

  145. Glatt some questions

    Wait for artificial organs? One neurologist told me, about 20 years.
    ——————————————-
    There will probably be major advances soon in the ability to harvest other organs (besides corneas and kidneys) even after cessation of heartbeat, which would hopefully allow for everyone to donate organs with halachic comfort, even if one holds by the stricter halachic definition of death. The question is will there still be resistance to organ donation in the Orthodox community at this stage. Intellectually and rationally speaking, there shouldn’t be; what actually occurs is often a different story.

  146. Me
    Isn’t this exactly what the RCA statement did, at least implicitly, to Rav Tendler and Rav Walfish??
    Hirhurim
    Yes, and I think that’s an important discussion to have. But a blog’s comments are not the place.

    This blog (and its comments) were perfectly willing to talk about the credentials and credibility of the people who signed the statement for organ donation…
    This may not be the place for such a discussion – but then that should apply to the positions one disagrees with, as well as with one’s own…

  147. If one reads the RCA position paper, it is obvious that the authors merely sought additional sources from within RYBS’s family as to what was RYBS’s stance, which is hardly an uncommon modus operandi, unless one is absolutely convinced that simplistic answers, devoid of nuance and detaul, are warranted on complex issues. It was hardly a slight of R Walfish’s POV.

  148. Meir Shinnar wrote:

    “This blog (and its comments) were perfectly willing to talk about the credentials and credibility of the people who signed the statement for organ donation”

    Nope. The comments in question objected to the idea of halachic determinations of complex halachic issues being subjected to a Kol Koreh, whether plastered on a wall in Ir HaKodesh, in the Charedi media or via Internet petitions.

  149. I hope that one day they amend the organ transplant laws to allow the publication of data of transplant recipients – age, organ they received, disease they had, had they previously signed a donor card, city of residence.
    Then we can find out if people really are takers and not givers and where they live. So when we see addresses in Bnei Brak, Elad, Beitar Ilit for people who received BSD organs and who didn’t sign cards the resulting chilul hashem will force their rabbanim to send out letters similar to Rav Shilat’s

  150. Lawrence Kaplan

    Steve: I just reread the paragraph in the RCA paper about the Rav. The paragraph clearly implies that R. Walfish’s testimony is unreliable. What is worse is, as my brother has pointed out numerous times, that the paper’s authors did not interview R. Wlfish to ask him, among other things, how he would respond to the apparently contradictory testimony, exactly what were the cirumstances under which the Rav told him that BSD definition is acceptable halakhically, etc. Did the paper’s authors interview the Rav’s grandchildren? And where is this letter of RYT and RAS? Your comment, Steve, is sheer apologetics.

  151. Before commenting further on this matter of piku’ach nefesh, I would like to express a word of nuanced concern at the events that occurred this past Friday morning in Takoma Park, Maryland, where six distinguished police officers shot dead an individual who was holding a hostage at gunpoint outside a bank. While on the one hand I appreciate that the brave police officers meant well, and were eminently successful in saving the life of the hostage, on the other hand Rambam rules in Hilkhot Melakhim 9:4 that a Noahide may not kill a pursuer who could have been neutralized less dramatically. I am not one to judge the heroic police officers, but the strategy they employed impresses me as requiring investigation. I believe this event calls for “cheshbon nefesh” (introspection) in our global society, to better inform itself on the minutiae of the Noahide Code (which will in turn be a Kiddush Hashem). [E.g. maybe all police academies should offer their trainees a course on the Noahide Code.] May the individual’s death in this episode serve as a source of atonement and blessing for his soul.

  152. Meir Shinnar wrote:

    “This blog (and its comments) were perfectly willing to talk about the credentials and credibility of the people who signed the statement for organ donation”

    Nope. The comments in question objected to the idea of halachic determinations of complex halachic issues being subjected to a Kol Koreh, whether plastered on a wall in Ir HaKodesh, in the Charedi media or via Internet petitions.

    So you objected as strongly to the agudah declaration (which was the subject of a special hirhurim post)??? let’s be honest…

  153. Doron Beckerman

    Dr. Kaplan,

    I don’t know is Rabbi Walfish is the protagonist of this piece in Be’ikvei Hatzon 37, but if he is, then I understand what’s going on:

    ובענין זה דקביעות רגע המות שמעתי בשם מו”ר הגריד”ס הלוי ז”ל שאמר בזה”ל, אפילו היה הגר”א בחיםם בדורנו, כמודמה לו שלא היו הכתפיים שלו די-רחבים להכריע בענין ספק זה. ובער”ח תמוז תשנ”א השתתפתי בכנס של הסתדרות הרבנים, ובקשר לדיון של קביעות רגע המוות והשתלת אברים עמד אחד על רגליו ואמר, שבשנת תשמ”ב שמע ממרן הגריד”ס שלשה דברים: א’ שהוא מסכים על הסוברים שמי שמת מוחו דינו כמת. ב’ שמותר להשתיל קארניע של מת בגוף החי, ואף דמת אסור בהנאה, מכ”מ סומא חשיב כמת, והר”ז נידון כמצב של פיקו”נ, וג’, שכל זמן שאחוז ההצלחה בהשתלת אברים מסויימים היה רק כששים אחוז, והשאר היו מתים תיכף ומיד, אסור היה להשתיל אברים מטעם רציחה על המקבל, אך לאחר שישתפר המצב, ויעלה אחוז ההצלחה לשמונים אחוז, שאז יהיה רובא דמינכרא, אז יהיה מותר להשתיל, ולא נצטרך לחוש לרציחת המקבל מחמת עשרים האחוז.
    ואני שמעתי ונשתוממתי, ולא רציתי לבייש את הרב שאמר כן ברבים, והמתנתי עד לאחר שעה וחצי, ואמרתי בצנעא לזה שמסר הדברים בשם רבנו, שאני אינני יודע מה אמר מרן הגריד”ס בקשר לקביעות רגע המות, אך העדות השניה והשלישית דבר ברור הוא אצלי שלא יצאו דברים אלו מפי רבנו, דסומא חשוב כמת הוא מאמר אגדה, ואין דרכו של רבנו לפסוק עפ”י מליצות באגדה, וענין רובא דמינכרא שייך רק לברכת הזימון, דבעינן שבעה שאכלו לחם, ולא סגי בששה, ומה זה ענין לניתוחים ולעניני רפואה.

    וכעבור כמה ימים דרשנו וחקרנו ונתודע אלינו מכמה וכמה מקורות נאמנים, שאכן עדות שבטלה מקצתה בטלה כולה, שלא רק העדות השניה והשלישית היו בטעות, אלא אף העדות הראשונה ג”כ בטעות היתה, ושמעולם לא הכריע רבנו בדבר זה כלום, ואף הקפיד על אלו שסברו להכריעו באומרו שאף אילו היה הגר”א חי בדורנו לא היה יכול להכריע כלום בדבר זה, וכאמור

    וכשמוסרים דברים הנוגעים להלכה בשם איזה אדם גדול, כמה צריכים ליזהר ולדייק… וכאן בנידון זה, זה שמסר ג’ העדיות בשם רבנו היה רחוק רחוק מאוד מדרגת “גברא רבא”, ואילו אלה שהעידו בשם רבנו להיפך, ת”ח מופלגים המה, ואין סםק אצלי כלל שזה שמעיד טעה בעדותו.

    ואני מוחה בכל תוקף בעד אלו שמזייפים דעת רבנו ז”ל, במה שמפיצים דברי שקר בשמו ותולים בו בוקי סריקי. וכל תלמידיו שמכירים דרכו של רבנו בהלכה יודעים בברור שלא יצאו דברים אלו מפיו, ותו לא מידי.

  154. Meir Shinnar wrote :

    “So you objected as strongly to the agudah declaration (which was the subject of a special hirhurim post)??? let’s be honest”

    Sure. see my earlier post re RYBS’s comments re the controversy in the 1950s about microphones and his views re the stances of the Agudas HaRabbonim knowing halacha but not science and the RA knowing science but not halacha. Unfortunately, Psak Halacha by Kol Koreh and by those who claim to know science but not Halacha has an old history. The stances of the Agudah and those who signed the Internet petition merely reflect a contemporary illustration of this unfortunate trend at work.

  155. Rav Beckerman

    I don’t know is Rabbi Walfish is the protagonist of this piece in Be’ikvei Hatzon 37, but if he is, then I understand what’s going on

    the issue is the reliability of someone who says he heard, versus someone who cites anonymous sources that this is false. the second one may be a reliable indicator of his beliefs – but not that the first one is wrong…

    there is also an issue of chronology. Rav Walfish states that he wrote to Rabbi Silver in 1983-84 when Pennsylvania was considering its law, about his conversation with Rabbi Soloveichik, and that this is should be in the archives of the RCA. Furthermore, the RCA answered individual questioners after 1984 based on that conversation, and he discussed this ~ 1986 with the rav shapiro zt”l, the former chief rabbi of israel, before the rabbinate’s acceptance of brain stem death. This did not seem to have been a private position that no one knew about…

    1983-84, the rav, while not very active, was still receiving visitors and questions. It is puzzling that RHS only hears about this (which has been in the public sphere for many years) in 1991 – and is unable to cite any direct source (only anonymous ones) against it (except his sense that the rav would have been against it…). In 1991 the rav was not taking public visitors – so he can’t answer….
    (BTW, about being blind, I can’t answer for the rav’s answer, but it is a well known position to equate blindness with pikuach nefesh…)

  156. Lawrence Kaplan

    Re the exchange between Rabbi Beckerman and Dr. Shinanr: The point is that the Vaad might have been able to clear up at least some of these issues had it interviewed the protagonists involved, instead of Rabbi Beckerman and Dr. Shinnar having to speculate.

    And re Steve Brizel: To reiterate: I think a fair reading of the paragraph about the Rav indicates that from a rhetorical point of view it is casting doubt on the reliability of Rabbi Walfish’s testimony– and then it turns out the Vaad never interviewed him!

  157. Shalom Aleikhem R. Beckerman,

    Thank you for your kind words and response. You are correct that I need to eleborate on what I claimed in footnote 49. It is also possible that I was mistaken and that I should retract foonote 49. But before any retraction, here’s my reasoning.

    The reason I think the RMF’s introduction to IM is possibly compatible with the Chikrei Lev is because RMF writes that a moreh hora’ah can have confidence that it is the Will of HKB”H that he deliver his verdict to his congregation “me’achar shelo nir’eh hapeirush kemo shepassak, velo hayah setirah lidevarav” – his analysis appears cogent to himself, and there has been no contradiction to his words. RMF then proceeds to cite Shabbat 130a as an instance of this. Therefore, I infer from RMF that if the moreh hora’ah is apprised that there *is* a contradiction to his words, i.e. that a different moreh hora’ah has announced an alrernate ruling (with a cogent basis, and it is not possible to resolve the dispute), then the first moreh hora’ah no longer possesses absolute sovereignty over the issue (-rather: if it concerns a din di’oraita his congregation will have to be stringent, and if it concerns a din dirabbanan his congregation is entitled to be lenient). RMF’s point in the introduction is that even though he (RMF) humbly does not feel himself as being as worthy as R. Akiva Eger, still he (RMF) is publishing his halakhic decisions because so long as no contradiction has been brought to his attention, it is his responsibility to apply the Halakhah as best as his intelligence can do (even if his intelligence is not as great as that of R. Akiva Eger).

    Regarding IM EH 4:100 (sec. 4): here (at least as far as I can tell) RMF appears ambiguous in choosing between Chazon Ish and Chikrei Lev. RMF is confronted with a request that he explain two seemingly contradictory past responsa – in one instance he told a lady she must bald her head to follow her husband’s practice, whereas in another instance he told a lady that she can employ a wig even contrary to her husband’s opposition (-opposition that was grounded in mar’it ayin). Must a lady follow her husband’s practice or need she not?

    In the first paragraph, RMF answers that balding the head is a custom of an entire city from which the husband originates; thus the lady must follow the custom of the city. The wig case, by contradistinction, is not an issue of city custom but is rather a straightforward dispute among the poskim (whether mar’it ayin prohibits a wig). The husband holds like the poskim who are stringent, but he does not have the authority to impose this on his wife, even though the wife now lives in the husband’s jurisdiction. [Apparently, the reason for this is the gemara in Avodah Zarah 7a that regarding an unresolved dispute among the poskim, if it concerns a mitzvah di’oraita one must be stringent, and if it concerns a mitzvah dirabbanan one may be lenient. Mar’it ayin in the case of a wig is a rabbinic concern, and so everyone – including the disciples of the stringent posek in the unresolved dispute – is now entitled to be lenient.] Thus, the first paragraph in IM is seemingly like Chikrei Lev.

    In the second paragraph, however (s.v. aval levad zeh), as you correctly observe, RMF follows the Chazon Ish. RMF believes that in the gemara in Chullin 18b, Rav & Shmuel and Rabbi Yochanan each knew the others’ reasoning, and the dispute (which concerns a biblical prohibition of neveilah) was known by them and by the entire public to be unresolved, and yet still the Jews in Eretz Yisra’el were all entitled to act leniently (and eat food which Rav & Shmuel held was biblically prohibited) because they were all disciples of Rabbi Yochanan. This is following Chazon Ish.

    Finally, in the third paragraph, RMF refers us to his previous discussion in Dibberot Mosheh. [Regarding the Dibberot Mosheh itself, I don’t have access to it at the moment, but I will hopefully see it tonight to confirm (what I seem to recall) that in the last section of the analysis he potentially retracts his support for Chazon Ish.]

    That’s why I wrote in footnote 49 and its accmpanying text that I found RMF ambiguous in adjudicating between Chazon Ish and Chikrei Lev. However, if I am shown to be mistaken, I will be happy to immediately change footnote 49 and its accompanying text.

  158. Doron Beckerman

    Sholom Rabbi Spira,

    Thank you very much for your response.

    RMF in his introduction is undoubtedly speaking of an outright סתירה whereupon the Posek must retract because he has been undisputedly refuted, not “that a different moreh hora’ah has announced an alternate (cogent) ruling.” Otherwise he would have to end off every Teshuva where he disputes R’ Akiva Eiger (or any Moreh Horaah Muvhak where the argument is on Shikul Hadaas) on a Deoraysa with a Lemaaseh you can’t follow my Psak because RAE holds otherwise.

    Regarding EH IV:4, the basis for calling a wig a chumrah is not because we can be meikil on a derabbanan, but because, as he writes explicitly in EH II:12 –

    אף שאיכא מאן דחושש לאסור פאה נכרית משום מראית עין עיין בעטרת זקנים או”ח סימן ע”ה, מ”מ רוב רבותינו וגם מאלו שסומכין עיקרי ההוראה עליהם מתירים והם הרמ”א שם ובסימן ש”ג בד”מ והמג”א והפמ”ג, וכן משמע גם מהגר”א שסובר כן שלא אסרו בזה משום מראית העין. וכמעט שמוכרח מהגמ’ פ’ במה אשה

    And again:

    , וכיון שהיא עושה כדין שהוא כרוב הפוסקים ושגם נראה כמותם,

    I must also respectfully disagree (although not conclusively) with your attribution of Rav Avigdor Neventzahl Shlit”a (Derashos Bamidbar 237) as holding of the Chikrei Lev. (This is all I have seen so far of your sources, other than RMF). He writes that one must follow:
    a) The greatest Posek
    b) Rov Poskim
    c) If it is equal, he then quotes R’ Yehoshua BK’s rule.

    The upshot of that whole piece is that one must select his Rebbe based on his qualifications as the greatest Posek, not one who is Ashkenazi, or Sefardi, or the biggest meikel, or the biggest machmir. It emerges that one should decide what to do based on his Rebbe – who should be the greatest Posek. Only if there is no way to detemine who is the greatest, or what the position of Rov Poskim is, do we go to option c) of RYBK.

  159. Doron Beckerman

    Sorry, that should be EH IV:100

  160. Thank you, R. Beckerman. You are correct that RMF challenges R. Akiva Eger in seven responsa (or – given my meagre experience with the IM – I should say *at least* seven responsa), all catalogued by R. Yom Tov Halevi Schwartz on p. 17 of Ma’aneh La’iggerot.
    http://www.israel613.com/books/MEANE_IGROT-H.pdf
    But perhaps RMF will simply say that R. Akiva Eger erred in all seven places. In other words, Rabbi Yehoshua Ben Korchah’s principle in Avodah Zarah 7a only applies when both sides are equally weighted, and it becomes a judgement call how to pasken in practice. [As the Rambam says in codifying Rabbi Yehoshua ben Korchah’s rule, “im ein atah yode’a loheikhan hadin noteh” (Mamrim 1:5).] But when one side is clearly mistaken, then we can clearly reject that side out of hand and award victory to other side. [Obviously, R. Yom Tov Halevi Schwarz takes umbrage at the claim that R. Akiva Eger could have possibly ever erred. I’m just explaining how I see RMF advocating for himself.] Indeed, this is reflected in the fact that everyone agrees that the poskim themselves who participate in the original debate [-as distinct from their disciples-] may follow their own opinion (even to be lenient on a potential biblical prohibition). The posek who himself said that one may open soda bottle caps on Shabbat may himself open soda bottle caps on Shabbat. Obviously, when a posek announces an original ruling (such as permission to open soda bottle caps), it is because he is convinced that he is correct, and that any alternative approach is totally mistaken. [As RJDB writes in Contemporary Halakhic Problems V, p. xii – “Each may regard his assessment as crystal clear and regard the opposing view as ill-informed.”] Were it not so, the posek who attempts to announce his original view would be forced to admit that the matter actually remains a safek.

    I think this also explains R. Avigdor Neventzal. If one side is clearly superior in wisdom or numbers, the Halakhah will obviously follow that side. [It is not a situation of “im ein atah yode’a liheikha hadin noteh”, in Rambam’s parlance.] But where there is no superiority one way or the other, then R. Neventzal invokes R. Yehoshua ben Korchah’s rule, like the Chikrei Lev and contrary to the Chazon Ish.

    That said, you have definitely refuted me on my (mis)reading of RMF’s responsum regarding a wig. Yi’yasher kochakha, and thank you for bringing this to my attention. Clearly, as you correctly say, the issue was not an unresolved dispute regarding the wig, but rather that the consensus of authorities (in RMF’s estimation) permits a wig. Accordingly, footnote 49 will have to be rewritten, and you will certainly be credited. Ultimately, the key question is what Dibberot Mosheh says on this matter.

  161. Doron Beckerman

    Thank you so much Rabbi Spira.

    Your reading of the preface to the IM seems very forced to me. He is talking about how a psak gets the status of דברי אלקים חיים even if it is objectively wrong, and this is when he tries his best to ascertain the truth and there is no contradiction to what he says. According to what you are saying, the psak is no longer דברי אלוקים חיים when it is opposed by an equally cogent opinion (which is how you understand what RMF means by סתירה), because he must now tell his community that it is a Safek? This doesn’t make sense to me.

    His proof from Shabbos 130 is that even though Rabbi Eliezer was objectively wrong, he still got Schar for paskening that way for his community.

    A general question on the Chikrei Lev – what should emerge is that Ashkenazim cannot ever Pasken like the Rema against the Shulchan Aruch on a Deoraysa Lekulla, or the reverse for Sefardim, because we cannot decide who is right. Does he deal with this?

    I agree that R’ Neventzahl is inconclusive.

  162. Larry Kaplan wrote in part:

    ” To reiterate: I think a fair reading of the paragraph about the Rav indicates that from a rhetorical point of view it is casting doubt on the reliability of Rabbi Walfish’s testimony– and then it turns out the Vaad never interviewed him”

    Let me offer two responses. The assumption that R Walfish’s comment is correct can not be rationalized by a simple comparison with any of the other quoted views re RYBS’s alleged stance. That alone would have given the authors of the position paper a rational basis for either qualifying the same or indicating that other Talmidie Chachamim either heard a different or contrary answer. Assuming that the Vaad did not interview R Walfish, one would be hard pressed to find any reliable and verifiable, let alone documentary evidence that RYBS ever supported brain death since the issuance of the Harvard criteria.

  163. “Assuming that the Vaad did not interview R Walfish, one would be hard pressed to find any reliable and verifiable, let alone documentary evidence that RYBS ever supported brain death since the issuance of the Harvard criteria.”

    There’s no “assuming.” R. Walfish and his son expressly said he was not interviewed. The report does not say the authors spoke to him, and in none of the articles in the various newspapers did they claim they did. Moreover, R. Folger, who participated in the discussion her, did not say they interviewed him. So they ignored possibly “reliable and verifiable” evidence.

    Which is exactly the point. THEY REJECTED DIRECT EVIDENCE ABOUT THE RAV’S POSITION WITHOUT SPEAKING TO THE PERSON WITH SUCH EVIDENCE. No one is assuming R. Walfish comment is correct; no one says the authors had to accept what R. Walfish said. What has been said is that if they were doing their job properly and fairly they would have spoken to R. Walfish to find out the full details of what he says happened between him and the Rav. And this failure to interview R. Walfish was, at best, such incredibly shoddy research that it severely undercuts any conclusion they reached about the Rav’s position; at worst, it is evidence of a rigged report than the supposedly a fair and balanced educational document the authors and the RCA claims it is.

  164. Lawrence Kaplan

    I believe that in the debate bewen rabbis Beckerman (RDB) and Spira (RSS) regarding the meaning of RMF’s comment ” ve-lo nireh setirah lidevarav,” RDB clearly got the better of the argument. The plain meaning of the phrase supports him, as does RMF’s disagreeing with RAE seven times. To say, as does RSS, that RMF in all seven places considered RAE to be in error is a counsel of desperation.

  165. Lawrence Kaplan

    To continue: RSS’s forced reading of RMF is so troubling because it effectivly ties the hands of a a mara de-atra on all matters of a mahloket ha-poskim on deoraita issues in general and regarding the issue of mehtzah in particular. To say that a mara de-atra cannot follow the geographic of a 10 tefahim high mehitzah but has to follow the 18 teafhim view, when RSS admts that the geographic view is as cogent as the others, seems ently oblivious of what it means to be a mara de-atra. Particularly in the matter of a mehitzah where a Rav has to deal with real-life baalbtim and has to choose his battles, the approach of RSS is not only textually dubious, for all its great learnig, but oblivious to reaiity, dangerous and potentally destructive.

    I ca sure you RSS that Rav hmhidman ZT’ll woul NOT have been convinced by your essay.

  166. Steven Brizel
    Let me offer two responses. The assumption that R Walfish’s comment is correct can not be rationalized by a simple comparison with any of the other quoted views re RYBS’s alleged stance. That alone would have given the authors of the position paper a rational basis for either qualifying the same or indicating that other Talmidie Chachamim either heard a different or contrary answer.

    What is striking – in the RCA report, in RHS tshuva in beikve hatzon, and in what was cited from RHS’s answer to a question in the recent OU – is the anonymity. Rav Walfish states clearly that he, as an officer of the RCA, when the RCA was asked a question at a specific time, , he asked RYBS a she’ela and got an answer to that question, which formed the basis of further RCA actions for some time.

    All the other citations of RYBS are far more anonymous – some one spoke to RYBS at some point and got this answer against Rav Walfish – and RHS makes clear that he believes on other grounds that the rav held differently – but never are we ever told that rav x(with an actual name)actually spoke to the rav (preferably at a time after Rav Walfish, but for sure after the Harvard criteria came out, and should be within some time frame) who gave a different answer.
    This type of anonymous discussion to discredit a very real and known individual is something that is distasteful (and stronger language is actually appropriate), and reflects poorly on those doing it.

  167. I thank R. Beckerman and Mori ViRebbi R. Kaplan for their valuable responses.
    The Chikrei Lev is now available at
    http://www.hebrewbooks.org/pdfpager.aspx?req=1725&st=&pgnum=834
    The Minchat Shelomoh is available at
    http://www.hebrewbooks.org/pdfpager.aspx?req=15096&st=&pgnum=302

    As Mori ViRebbi R. Kaplan correctly notes, at hand is a very important discussion as to how great or how limited the powers of a Mara Di’atra truly are. At least for Chikrei Lev, Minchat Shelomoh, Or Litzion and R. Neventzal, a Mara Di’atra would have to resign his job rather than officiate over a ten-handbreadth high partition. It is possible, though, that I have misconstrued RMF. I will carefully review the Dibberot Mosheh.

  168. Doron Beckerman

    Rabbi Spira,

    Thank you for your time.

    Regarding the Or Letziyon – while it is true that in the source you referenced he states that the Gemara in Eruvin is referring to a Posek’s right to decide, he concedes that an established Minhag based on one Posek is valid.

    More interestingly, though, is in his treatise at the beginning of vol. II, where he discusses whether a Baal Teshuva should follow the customs of his father or his Rabbeim, he cites the Chazon Ish, and states – in your favor – that the story with Rabbi Eliezer was that they were indeed initially unaware of a dispute, and were allowed to follow Rabbi Eliezer even after the found out about it.

    However , he later states that he subsequently saw the Ran to Chullin 43b ד”ה הרוצה – money quote:

    הרוצה לעשות כב”ש עושה… וא”ת אמאי והא קי”ל היו שנים… בשל תורה הלך אחר המחמיר… י”ל דכי אמר הכי ה”מ לאדם שאינו מן החולקים, אבל שני חכמים שווין שהם חולקין, כל אחד יכול לעשות כדבריו…
    ומהאי טעמא נמי אמרינן בפרק רבי אליעזר דמילה דבמקומו של רבי אליעזר היו כורתים עצים… לפי שכל אנשי מקומו היו כתלמידיו והיו רשאין לעשות מעשה כדבריו

    IOW, you have a Ran who holds explicitly like the Chazon Ish! (Chacham Ben Tzion states that this means that one may follow his Rebbe, not that he must, but he concedes that one is allowed to follow his Rebbe.)

  169. Doron Beckerman

    I must also disagree with your applications of the Chikrei Lev and the Minchas Shlomo, as follows:

    It is true that the Chikrei Lev (CL) resolves the apparent contradiction between Eruvin and AZ by asserting that Eruvin is speaking of a limited case, but that is because the CL assumes that Eruvin is a directive for everyone , not students, and the only way to resolve that with AZ is by saying that anyone can choose whether majority or Chochmah is superior.
    That does not at all affect the question of whether a student may follow his Rebbe. Since the CL cites a later portion of the Ran I cited above, and does not even relate to the section of the Ran regarding Rabbi Eliezer, I cannot accept that he disagrees with the CI without his explicitly saying so.

    The Minchas Shlomo is speaking about someone who came to ask both Poskim, so indeed the practical Halachah would be that since the meikil on a derabbanan is הגיע להוראה, the questioner may be lenient.
    But if he were to ask only one Posek, and he is Machmir, he might say that his position is lechumrah.
    By extenstion, there is no indication that he means that a student who follows his Rebbe on everything must be apprised of a contrary lenient or strict position and act based on R”Y ben Korchah’s principle.

  170. Lawrence Kaplan

    Rabbi Spira: Thank you for your courteous reply despite my strong critcism of your views. Regarding matters of substance,however, Rabbi Beckerman has shown that your readings of the sources are open to serious objection. In light of this, your position is even more troubling. On the basis of a learned but open to objection reading of the sources, you are askng that every mara de-atra of a shul with a 10 tefahim mehtzah resign his position, unless it is changed to a 18 tefahim mehitzah. Do you truly not have any idea how completely divorced from reality, how very destructive for modern Orthodoxy such a position is?! After Orthodoxy sucessfully fought for decades Conservative Judaism and got almost all Orthodox shuls to install mehitzot, are you seriously suggesting that the rabbis of ten tefahim mehitzah shuls resign? And then what? Your essay, I am compelled to say, shows that for all your great learning you have no idea of what pesak is. I know you are a modest person, which is why I am convinced that you do not appreciate just how arrogant your conclusion is.

  171. Meir Shinnar-my reading of the same passage indicated that R Walfish was the sole person who reached the unequivocal conclusion, despite much proof to the contrary from within RYBS’s own family ( RAL, R Mayer Twersky and R D CS) that RYBS never reached or supported such a conclusion at any time between the adoption of the Harvard criteria and when RYBS had all but ceased issuing any written or even oral Piskei Halacha in the early 1980s, as stated by RAL. The notion that R Walfish’s report must be accepted simply because it fits the agenda of the supporters of brain death, despite much evidence to the contrary, strikes me as intellectually dishonest.

  172. Joseph Kaplan

    The only one who is intellectually dishonest is you, Steve, with your setting up strawmen that don’t exist. NO ONE has said that R. Walsfish’s statement must be accepted. What a number of us have said is that the failure of the authors of the RCA paper to speak to R. Walfish before branding his account as wrong was either shoddy research or unfair bias — or, to use your language, intellectually dishonest. And I also note that R. Walfish did not “reach[] [any] unequivocal conclusion.” What he did was report on what the Rav told him. It was the RCA that reached a conclusion, albeit without hearing critically important evidence.

  173. Steve Brizel
    Meir Shinnar-my reading of the same passage indicated that R Walfish was the sole person who reached the unequivocal conclusion, despite much proof to the contrary from within RYBS’s own family ( RAL, R Mayer Twersky and R D CS) that RYBS never reached or supported such a conclusion at any time between the adoption of the Harvard criteria and when RYBS had all but ceased issuing any written or even oral Piskei Halacha in the early 1980s, as stated by RAL. The notion that R Walfish’s report must be accepted simply because it fits the agenda of the supporters of brain death, despite much evidence to the contrary, strikes me as intellectually dishonest.

    I would say that your ability to read casts doubt on the ability of your teachers. Rav Walfish did not reach a conclusion – he reported a direct response of the rav in response to a she’ela asked of the rav, as head of the RCA halacha committee, by Rav Walfish representing the RCA. This isn’t a conclusion.

    It is true that other talmidim and associates of the rav don’t report a similar response = and that they understood the rav to have a different approach, but, TTBOMK, no one who has been named had said that they specifically asked the rav a she’ela about this in
    One has very limited options.
    1) Reject Rav Walfish as a liar – something people seem ready to do (and reflects more on them – this readiness to discount the opposition is on par with joking on shooting people one disagrees with..)
    2) Suggest he misunderstood the rav – quite difficult, as he reports this as a direct answer, rather than something that he inferred.
    3) Suggest that the tshuva was limited to the specifics of the she’ela – and here one would need to clarify with Rav Walfish what they were.
    4) Say that the rav’s response might have changed from the time the others spoke with him – there wasn’t much time between the Harvard criteria and the rav’s complete ceasing fo public activity, and rav walfish represent the latest version
    5) The rav’s response as a posek to a she’ela may be different than the rav’s learning of a sugya

    Therefore, one does not have to accept rav walfish – but one has to be honest about what one is accepting or rejecting and the basis for it..

  174. Rav Spira has shown remarkable erudition in arguing that a posek (and his community) are obligated to follow the principal of safek d’oraita lehumra – meaning that in every case where there is a major source who holds that a certain issue is d’oraita, and paskens lhumra, one has to follow that humra – unless (perhaps)one believes that the other side is clearly mistaken – and those occasions are quite limited.
    While he can marshall sources that seem to suggest this as a theoretical possibility, and there might be specific tshuvot on specific issues that seem to take this approach, I wonder how many if any, of the major acharonim poskim (say,starting with noda biyehdua ending with RSZA and ROY), either ashkenaz or sefarad, actually consistently (rather than in a few tshuvas use this to reach a lehumra position) take this position in their shut…
    While my knowledge of shut is far more limited, every posek I have looked at does not take this position consistently.
    This would suggest that regardless of polemical or theoretical positions, this position is not one that is part of halacha – (actually constitutes what I call chareform – charedi reform – the invention of a new torah , but lehumra..)

  175. If we can never go against a major posek who holds that something is a issur de’oraysa, we will never be able to move. Do all of us have to start conducting ourselves like the Tzemach Tzedek who held that cutting one’s beard is a de’orysa violation of lo yilbash? Do we have to refrain from wearing non-distinctly Jewish clothes (there are opinions which regard this as chukas hagoy mideoraysa)? There are hundreds of examples of this, and nobody has ever suggested that we go round collecting examples of where poskim have brought in de’orysa consideration and automatically conduct ourselves like that. What about when what one posek advises, another considers it assur mi’deoraysa? None of us will be able to learn any non-Torah literature, or gain a secular education (see R. Baruch Ber’s teshuva on the subject to R. Schwab at the end of Birkas Shmuel on Kiddushin). None of us can help a nachri who has fallen over if we won’t be seen not doing so(Mishne Halachos). None of our wives can wear a sheitel (Many poskim). This is obviously silly; rather we pick a posek, or a mehalech or we evaluate each sugya ourselves, giving appropriate weight to different opinions, but don’t get caught in the ridiculous game of trying to fullfil everyone’s opinion on everything.

  176. Rabbi Walfish suggesting that RYBS held that brain death is death, in light of all the family members and students who say there is no way he held of it, is just about like a third-tier student of Rav Hershel Schachter saying that Rav Hershel Schachter holds of Women’s Prayer Groups.

    There is no need to interview the student who said it… and speculating whether the student is lying, misunderstood, or misheard, is beside the point.

  177. Lawrence Kaplan

    Meir: Rabbi Walfish served for many years as the Executive Director of the RCA, and Rav was head of its Halakhah committe. As such, he consulted with the Rav on regular basis on all sorts of critical halakhic issues. Your nasty comparison of him to third tier student of Rabbi Schachter is absurd and insulting and reflection on your ignorance.

  178. Lawrence Kaplan

    To continue; We also do not know under what circumstances the Rav discussed this matter with family members and exactly what he said. Also, the letter of Rabbis Aharon Soloveitcihk and Yitzhak Twersky, to my knowledge, has not been made public, and it is difficult to evaluate it. All this serves as further testimony to the poor research of the Vaad Halakhah.

  179. Lawrence Kaplan

    In fairness to Rabbi Spira, he would presumably argue that in many of these cases we can create a sefek sefeika. But I agree that his learned but mechanistic approach betrays a misunderstnding of what pesak is all about.

  180. Dr. Kaplan: I have to disagree with your conclusion. The Vaad Halakhah evaluated all the pieces of evidence you mentioned and concluded they are relevant. Your complaint is, I believe, that you do not trust their evaluation and wish to make your own determination. That does not reflect on the Vaad’s poor research but on your lack of faith in it.

  181. Lawrence Kaplan

    Gil: At the least the letter of RYT and RAS ought to be made public.

    Also the failure to interview Rabbi Walfish is inexcusable.

    And yes, given the extreme one-sidedness of the report as a whole, I do lack faith in its assertions re the relevance as to what the Rav’s family members reported without much more further clarification.

  182. Rav Yitzchak Lichtenstein, (the son of Rav Aron Lichtenstein) is, for the purpose of this discussion, considered a Chareidi on all issues. He in no way followed in the footsteps of his grandfather and was never in “that world.” For him to be looked at as a source of what the Rav might have held, in contradiction to direct testimony of Rav Walfish, is disingenuous at best.

  183. Just a Yid: Do you trust the divrei Torah in the Siach HaGrid haggadah? I do because I recognize the difference between hashkafah and reliably quoting your grandfather.

  184. Shalom Aleikhem R. Beckerman,

    Thank you for your kind response. I have reviewed the Dibberot Mosheh, and I believe that in sec. 7 (beginning with the words “vilakhen tzarikh lomar lihaRambam derekh acher) RMF expresses the possibility that his previous thesis (presented in sec. 2-6, that the disciples of a posek may follow him to be lenient even on an equally weighted dispute regarding a mitzvah di’oraita) is not correct.

    Regarding the Minchat Shelomoh, I assume when he speaks of “asking two sages” this is an expression on RSZA’s part to mean asking a sage who is involved in a dispute with a different sage. After all, one is not supposed to ask the same halakhic question to two sages. [My interpretation of RSZA is shared by RJDB as quoted in footnote 51.]

    Regarding the Chikrei Lev, I will carefully investigate. Thank you for bringing the Chiddushei HaRan (and second volume of Or Litzion) to my attention. I think Rashba there in Chullin disagrees with the Ran. Rashba writes that one can only choose a posek to follow on an equally weighted dispute regarding a mitzvah di’oraita when the dispute involves both a kula and a chumra.

    The bottom line is I could be totally wrong regarding approaching the dispute in the context of synagogue architecture (and all unresolved disputes regarding a mitzvah di’oraita), but I don’t think I can be wrong regarding approaching the dispute over the definition of death, since “hamotzi mechaveiro alav hare’ayah”. I can’t bury (or dismember) a person until I can prove he is dead in a manner that all credible poskim would accept. Only if we say “RSZA is totally refuted and his interpretation of the Chatam Sofer should be granted no credence” can I bury or dismember a brain dead individual. I would be willing to accept the proposition that RSZA is totally refuted if a consensus to that effect will be achieved. [As it stands, there is no such consensus. Rav Yigal Shafran says quite explicitly in his HODS interview “ee efshar livatel et hapeshat shel HaRav Eliashiv”.] That’s why I think it is quite urgent that Richard Joel and R. Moshe Kletenik attempt to convene a conference to achieve consensus. Certainly, Dr. Arthur Eidelman’s newly posted powerful testimony on the HODS website confirms that RMF ruled in 1975 that brain death=death. [Admittedly, it is a little inconsistent with RMDT’s testimony because Dr. Eidelman says that at the 1975 meeting, RMF told him it’s a mitzvah to donate organs, whereas RMDT testifies that the 1976 responsum (which assuredly relates to the 1975 meeting with Dr. Eidelman) only concerned deactivating a ventilator and not organ transplants. Nevertheless, that’s a minor detail, which may have become obscured after 35 years. The main point is that RMF told Dr. Eidelman that brain death=death.]

    Shalom Aleikhem Mori ViRebbi R. Kaplan,
    I thank the Rav for his kind words. Yes, it is true, I admit I exaggerated regarding a rabbi resigning from his congregation. Only RMF in the IM (Orach Chaim II, no. 43) requires this. R. Yosef Eliayhu Henkin has a more accommodating attitude, as quoted in footnote 42. He holds that even if the congregation has no partition, the rabbi should remain so as to beneficially influence the congregation for the future.

  185. Doron Beckerman

    Sholom Rabbi Spira, and thank you.

    a) RMF in that section is explaining what the Rambam might have held, despite RMF’s leaning toward his earlier analysis as being the more cogent one.
    b) It isn’t relevant – the only idea he is retracting (for the Rambam) is that a Horaah not given to an individual, but has become widespread, can count as a Horaah to be relied upon when there is a dispute. But one who asked a Posek, and was told, can certainly follow his Posek as he has received a Horaah from him.

    RSZA seems to be saying that he asked both simultaneously. But I have to look into what RJDB says.

    The Rashba does not relate to a situation of a Talmid and his Rebbe(or a Mara D’asra for that matter) – where the primary source is Rabbi Eliezer in Shabbos 130, not the resolution of the contradiction between Eruvin and AZ.
    (That is the major flaw in your line of reasoning in your paper. An alternate suggestion of the resolution of the AZ-Eruvin contradiction (such as by the CL) does not, ipso facto, mean a dispute with the CI’s conclusion, since there is still Shabbos 130 to contend with. Suggesting that they were unaware of the opposing position, as you do, does not easily reconcile with their receiving such great reward for following Rabbi Eliezer. The only one suggesting something along those lines, that I have seen, is Or Letziyon vol. II, stating that they were originally unaware of the dispute, and then continued their minhag, but he promptly retracts that after being apprised of the above Ran.)

    The Ran, on the other hand, relates directly to Shabbos 130, and writes in accordance with the CI.

    Regarding brain death, I’m more inclined to agree with you, based on what I cited from RHS above.

    However, I should somewhat amend my comment where I cited RHS, because, closely read, his objection is not so much with those who follow the lenient position, but with Poskim who decide that brain death is death based on אומד הדעת. If we accept that RMF and Rav Yisraeli etc. were unequivocal about it, then I would maintain that one may follow their position if they are his Rabbeim for all matters as the Chazon Ish explicitly stipulates, which is rare.

    How many HODS option 1 card signers follow RMF on all matters? I would guess, very, very few.

  186. I also want to point out that R. Eidelman specifically testifies that a key consideration in RMF’s 1975 conversation with him to equate brain death with death was that a disembodied frog heart continues to beat indefinitely when placed in an electrolyte solution. Although RMF could not have known it at the time, his disciple RJDB would refute this proof thirty-three years later, with the publication of “The Problem of Identity in Rashi, Rambam and the Tosafists” in Tradition 41:2. Thus, it seems to me that the RCA was absolutely correct in 1991 to define brain death as death (based on the pesakim it possessed from RMDT and RBW), and was also absolutely correct to subsequently reconsider its position in 2010, given the new evidence that had accumulated during the intervening years (RSZA’s countervailing pesak, and RJDB’s “identity” article), as per IM YD 3:88. Translation in simple language: today in 2011, to be safe, please keep the brain dead patient on the machine.

  187. Yi’yasher kochakha, R. Beckerman, for your insightful response. But logically speaking, should it really matter whether I directly speak to the posek or not? Is it like “harei at mikudeshet li” – if I utter those words to the lady she is married to me and if I don’t utter those words to the lady she is not married to me? Seemingly, if (according to RMF in sec. 7 of that Dibberot Mosheh) one possibly cannot follow a widespread hora’ah on an unresolved dispute among the poskim regarding a mitzvah di’oraita because safek di’oraita lichumra, it should not make a difference whether or not I actually speak to my posek. I know my posek believes his own opinion; my posek is a man of integrity. But the point is that there is another posek who also has integrity and who has announced an opposed ruling.

    But maybe my logic is all twisted, and so let’s assume you are correct, and that everyone (including Chikrei Lev, RMF, RSZA, R. Neventzal and Or Litzion) agrees with Chazon Ish on how to explain the Rema in Choshen Mishpat 25:2. Okay, so the synagogue partition essay has been refuted. Mazal tov; this a wonderful vindication for all synagogues everywhere. Still, that’s only on inyanei Bein Adam LaMakom. But for Bein Adam Lachaveiro, Chazon Ish says in YD 150:8 that I can’t take away someone else’s money based on what my posek has to say, since “kim li” is always invoked in the defendant’s favour. When I decide that a brain dead patient is dead, I am taking away his money (so to speak), because a dead person’s money is immediately inherited by his family members. And I submit I cannot take away his money until RSZA will agree with this, or alternatively we will demonstrate that RSZA doesn’t know what he is talking about. I recognize this argument is a double-edged sword, because yerushah also applies for Noahides. Thus, according to what I am saying, a Jew could never register for organs even in the Diaspora, since to pasken that for Noahides brain death=death, I am taking away the Noahide’s money without consensus. [RSZA will agree that for Noahides brain death=death, but RMDT doesn’t agree with an inconsistent standard between Jews and Noahides. RMDT holds that if I say “kim li” to regard the brain dead Jew as doubtfully alive, I must also say “kim li” to regard the brain dead Noahide as doubtfully alive.]

  188. Joseph Kaplan

    R. Spira’s erudition and vast knowledge of sources is so much greater than mine (an understatement to say the least) that it would be foolish for me to challenge him in those areas. So I leave that to others. But one comment of his does concern me: “Translation in simple language: today in 2011, to be safe, please keep the brain dead patient on the machine.” Safe? Not so safe for the 1 or 2 or 3 or more people who are, according to all halachic positions, alive, and whose lives may be lost, also lechol hadayot, if the brain dead person is considered alive. It may be an easy way to make a decision (no need for serious analysis, just follow the strictest opinion) but it’s not safe.

  189. Glatt some questions

    How many HODS option 1 card signers follow RMF on all matters? I would guess, very, very few.
    ——————————-
    Many folks would like to make the entire brain stem death debate a right wing-left wing debate, but if you look at many of the folks who support brain death as halachic death, they are definitely not the usual suspects who support left wing Orthodox causes.

  190. lawrence kaplan

    Gil: In this very post, posted on Jan. 24, you yourself said that the letter of RAS and RYT ought to be made available. Since you have not posted it as yet, I assume it is not available. Doesn’t this trouble you? Should we accept the position paper’s reference to the letter’s potential sighificance on faith?

  191. Yes, I am annoyed that it has not been made public. But I do not think the RCA is a bunch of liars. They haven’t been very forthcoming publicly in general.

    Note that R. Marc Angel is on the board of HODS yet the HODS website doesn’t have the letter on its website. Does that trouble you?

  192. Thank you, R’ Joseph Kaplan, for your very kind words. Vihamevarekh yitbarekh. Your erudite counterargumentation is what makes this sugya a success. [As Rabbi Yochanan says in Bava Metzi’a 84a, he arrived at clear understanding in Oral Torah because Reish Lakish refuted him in twenty-four different dimensions on every issue. (Hence the benefit of this marvelous website – which facilitates such Oral Torah communication.)]

    You are eminently correct. What I suggested is not necessarily a safe solution vis-à-vis the would-be organ recipients. Clearly, as you indicate, the only safe solution is for a sequel to the RCA report (-which in my opinion should include a conference of Gedolim). [Obviously, I’m very proud of R. Asher Bush, and I think he produced a masterpiece report. At the same time, thanks to your counterpoints (and those of scholars like you), it’s clear a sequel is needed, for now it’s uncertain what anyone should do vis-à-vis the practical definition of death. Is a person dead if his brain dies (-and if so, is that including or excluding the hypothalamus)? Or is a person only dead if his brain and heart both die? Or is a person only dead if not only his brain and heart both die, but his body also decomposes sufficiently that even an ECMO machine could not artificially restore circulation? These are all cogent possibilities, as unappetizing as decomposition may sound. And also: is the definition of death the same for a Jew and a Noahide as HaRav HaGa’on RMDT claims, or can the definition be different as HaRav HaGa’on RSZA claims?]

    Parenthetically, may I ask our Rosh Yeshiva R. Student when we will see R. David Shabtai’s treatise on brain death? I for one cannot resolve these issues, whereas his treatise will surely shed further valuable light on the topic.

  193. I try to look at issues through the lens of tachlis, and as interesting as this debate over brain stem death versus cardio-pulmonary death is, all of us know there will never be a resolution. This war has been fought at least since the 70s. I’m actually more concerned about the RCA utilizing the Agudath Israel halachic living will, and foregoing Rabbi Tendler’s health care declarative, which was patterned on Dr. Emmanuel’s model. Putting aside the brain stem death issue, I strongly prefer Rabbi Tendler’s form, because it compels the signer to research and deeply consider the typical kinds of health care treatment, and declare that he wants them or rejects, e.g., dialysis, antibiotics, ventilator, etc. Aguda’s halachic living will is open-ended, saying that if I become mentally incompetent, I appoint R’ Ploni as my health care proxy. Back in the 80s, I wrote an article about the Aguda halachic living will, where I expressed my disagreement with a couple of points. I saw a problem with tiruf ha’daas, because the halachic living will also provides for post-mortem instructions. Towards the end of life, when its already difficult to talk to an elderly patient about what treatment he wants should be become incompetent, is it really necessary to talk about post-mortem treatment? I proposed that two forms be utilized, depending on the kind of patient we’re talking about. Additionally, halachic living will is a potentially confusing term. “Living will” is almost always known to the public to mean withdrawal of treatment. Hospital workers make mistakes. “Living will” was first coined by the founder of the Euthanasia Society of America.

  194. lawrence kaplan

    Gil: Has ve-shalom I should ever imply that that RCA are a bunch of liars. I am sorry if anything I said even inadvertantly gave that impression, which I do not, however, believe to be the case. But it is difficult to evaluate the significance of the letter if we do not know exactly what it said, know in what circumstances it was written, etc.

    Re Rabbi Angel: The RCA said that the letter was written to Rabbi Angel in his capacity as the then President of the RCA. Did he keep a copy for his own archives when he left that position? I imagine a copy of the letter ought to be in the RCA archives. Since the Vaad Halakhah referred to this letter, they ought to be the ones to make it available. Perhaps, though, you ought to ask R. Angel if he has a copy. I will note that the HODS has scrupulously posted articles and documents from both sides of the controversy. The proof: That you looked at its wenbsite to see if it was posted there!

  195. Joseph Kaplan

    And, Gil, to add to my brother’s response, is the RCA report calling R. Walfish a liar? That is one, of number, of possibilities, though another deficiency of the report on the topic of the Rav is that it doesn’t explain its conclusion. Of course, not having interviewed R. Walfish, it would have been difficult to do so. It just cries out for a second look and revisions.

  196. I agree with you that they should have interviewed R. Walfish but I think it would not have changed anything. They accepted his testimony — which is available in video online. All they did is present other testimony about which he cannot have anything to say because he did not witness it.

    I don’t they are calling him a liar. It wasn’t their place to speculate but my interpretation is that he bothered the Rav enough times until the Rav essentially told him to do what he wants.

    It’s not like the pro-brain death doesn’t have great poskim on their side. R. Shaul Yisraeli and R. Avraham Shapira are big guns.

  197. Hirhurim
    I don’t they are calling him a liar. It wasn’t their place to speculate but my interpretation is that he bothered the Rav enough times until the Rav essentially told him to do what he wants.

    He himself states that this was in response to a specific focused question generated by an RCA member who needed an answer to a public policy she’ela – not that he kept calling the rav on this – and his position as executive director of the rca meant that this is what he was supposed to do (and did on other occasions on other issues..)

    It seems far more that his position was out of sync with the RCA position – and the tshuva from beikve hatzon already suggested a solution – not based on evaluating what happened, but on ad hominem arguments (my sources (anonymous) are better..)

    While it is nice that you recognize the prominence of Rav Shaul Israeli and Rav Shapira (not to mention Rav Rabinovich and others), that prominence is hard to see in the RCA paper – that suggests a preponderance on one side. You are right that interviewing Rav Walfish would not have changed matters for the authors – but not because he could not have given details – but because the conclusion was clearly predetermined – and the omission proves that the conclusion was predetermined.

    BTW, the notion that the rav would tell the executive director of the RCA, on a major public policy issue that he disagreed with, to do what he wanted because he bothered him too many times is itself highly problematic….

  198. Lawrence Kaplan

    Rabbi Spira: Thank you again for your courteous response to my rather sharp criticisms, and even more so for your willingness to modify your position. I must point out, however, that RMF is only speaking about the obligation of a rabbi to resign from shul without any partition at all. The notion that he would also have required a rabbi to resign from a synagogue with a 10 tefahim high mehitzah is your own–in my view highly dubious– extrapolation.

    Also, while it is theoretically possible that all who have written on this issue are “tzaddikim gemurim,” it is impossible that the critics of the report can be right in claiming that is grossly one-sided and deeply flawed while at the same time it is |”masterpiece” as you claim. There really are limits to squaring the circle.

  199. Meir Shinnar: While it is nice that you recognize the prominence of Rav Shaul Israeli and Rav Shapira…

    Let me add that, unlike some people, I don’t recognize their prominence just because they say what I want them to say.

    …that suggests a preponderance on one side.

    I find it hard to deny the preponderance on the other side and don’t understand why aclnowledging the few important poskim on one side implies a denial that the majority is on the other side.

    You are right that interviewing Rav Walfish would not have changed matters for the authors – but not because he could not have given details – but because the conclusion was clearly predetermined – and the omission proves that the conclusion was predetermined.

    You mean the way the paper denied that the Chief Rabbinate, various chief rabbis and R. Shaul Yisraeli paskened in favor of brain death? Clearly, that conclusion was predetermined and inevitable, with no amount of evidence standing in the way of those devious RCA rabbis.

  200. One wonders why R Walfish’s testimony per se is considered proof of RYBS’s position when so many members of RAL’s own family ranging from RAS ZL to Yivadleinu LChaim RAL, Dr C S and others listed in the RCA position paper state unequivocally that RYBS never publicly or privately supported brain death, and may have even viewed the subject as one that would have defied the abilities of the Gaon of Vilna, from the date of the issuance of the Harvard criteria to the early 1980s, when as RAL opinted out, RYBS was no longer issuing Piskei Halacha.

    Perhaps, the issue is that the supporters of brain death are using the opinion of R Walfish as a means of support for a position that was never advocated by RYBS, either to the RCA Halacha Commission, or otherwise, especially in light of the views of RSZA and RMF that cannot be viewed as 100% supportive of brain death.

  201. Note: Rabbi Angel is not on the board of HODS as far as I know. The link labelled “rabbinic board members” actually goes to a list of those who have cards. As it states on the mission statement, one of HODS goals is: “To educate Jews about the different halachic and medical issues concerning organ donation.” If there are significant articles or information that anyone feels is missing on either side of the debate, please feel free to email to me(noamstadlan-at-gmail-dot-com) or to Robby Berman. Interestingly, while HODS does have a position in the debate, the organization is committed to posting information supporting both sides. On the other hand, Rabbi Bush’s paper purports not to take sides, but gives only one side of the information.

    Rav Spira, the article you cited regarding personal identity is quite interesting, but I am not sure what impact it has on the current discussion.

  202. “One wonders why R Walfish’s testimony per se is considered proof of RYBS’s position when so many members of RAL’s own family ranging from RAS ZL to Yivadleinu LChaim RAL, Dr C S and others listed in the RCA position paper state unequivocally that RYBS never publicly or privately supported brain death…”

    Steve, you’re a lawyer so you should know better. It’s not that anyone considers R. Walfish’s statement “proof”; rather, it is that his personal knowledge is important evidence that needs to be considered carefully before any conclusion is reached. However, the RCA paper reached a conclusion without hearing all the evidence. As for your sneaking RAL’s name in as someone who allegedly made some statement about the Rav’s position, even the RCA report says “Rav Aharon Lichtenstein reports that he never discussed the matter with the Rov.”

  203. I am stunned. Dr. Stadlan, a board member of HODS, just publicly admitted that the organization is misleading the public about the membership of its rabbinic board! Does it even have a rabbinic board? I am sure you will be having words with Mr. Berman about how unacceptable this is. If HODS was a publicly traded company, it would be facing shareholder lawsuits over this.

  204. R. Gil, your sarcasm only highlights your biases, and is not very becoming for someone who is hosting a symposium on the topic, unless you want the reading public to assume that you have stacked the deck from the begining. The board page is clearly marked as the board, and the page of rabbis holding cards is clearly marked as rabbi’s holding cards. That particular page says nothing about those rabbis being board members. You are making a mountain out of one molehill sized link. Since I dont navigate this area of the HODS site with any frequency, I hadn’t noticed the link before, and I am not sure why it is there. What I am sure is that there is not and has not been any intent to deceive anyone. If there has been, I will be the first to admit it. I will certainly mention it to Mr. Berman and I assume that the situation will be resolved. If this is the worst you can say about HODS, I think we look quite good, thank you very much.

    If we are going to start sparring already, I would note that this sentence makes absolutely no sense: “Due to the limitations in including as broad a group of contributors as possible, I unfortunately could not invite any of the authors of the RCA paper” I dont see how having a broad group of contributors precludes having one of the authors of the document. Having 9 instead of 8 is such a problem? I think the vast majority of your readers would consider such a contribution crucial to trying to understand the 110 pages that were published. My guess is that it is not too late to invite them.

  205. 1. To Steve Brizel. You might have misunderstood the claim/ counter claim.

    Rabbi Walfish testifies that Rav Soloveitchic understood Yoma to mean respiration and haveing a beating human heart is not enough for a sign of human life. When Rabbi Walfish told him that the apnea test can detect for irreversible cessation of respiration (coupled with lack of consciouness) Rabbi Soloveitchik told him that if Rabbi Tendler reviewed the apnea test and feels comfortable with that that medical test then he accepted. This is direct testimony!

    The counter claim that you quote (family members and talmidim) all simply say they never heard the Rav discuss the issue. I am sure you can now appreciate who appears to have a better understanding of the Rav’s position. By the way, if you can find one, just one, claim of someone who spoke with the Rav and the Rav told him that he viewed a beating heart as a human sign of life even in a brain dead patient, please let me know so we can post that info on HODS site. As far as I know there is none. I hope this subtle but significant point is now clear to you and other.

    To Rabbi Student: HODS has an executive board that meets annually and makes decisions etc. HODS also has a rabbinic advisory board and that consists of all rabbis who have signed up for our organ donor card. Rabbi Angel has never, in our close to 10 years of existence, every showed up to a board meeting because he is not a board member. The board members are clearly listed on our website and they have been for the past 10 years.

  206. Gil – but the RCA paper did, effectively, pretend that Rav Ovadiah Yosef, who is, by all measures, a ‘big gun’ in the world of psak, does not exist, by not mentioning his position (there is a sefer written by his grandson with his haskama, to explain his view which they could have referred to) That, in and of itself, is proof of an agenda.

  207. Dr. Stadlan: Sarcasm? I meant it entirely honestly. Based on the website, I fully believed that those rabbis were on a rabbinic advisory board. If that were not true, as I thought last night, I would consider that to be a serious misrepresentation. I was not being at all sarcastic.

    I can explain that sentence to you offline.

    Robby: Thank you for clarifying that the term “rabbinic board” is correct, even if not quite what I thought but close enough.

  208. J: You are right about R. Ovadiah Yosef. I can’t imagine why his position was omitted, although I’ve never seen his teshuvah on the subject or his grandson’s book. Why must you assume it is proof of an agenda? Maybe there is some legitimate explanation.

  209. Glatt some questions

    J: You are right about R. Ovadiah Yosef. I can’t imagine why his position was omitted, although I’ve never seen his teshuvah on the subject or his grandson’s book. Why must you assume it is proof of an agenda? Maybe there is some legitimate explanation.
    —————————————————–
    All the more reason why Rabbi Bush owes us an explanation as part of your symposium. His silence is deafening, and speaks volumes about his ability to defend the many questions that have been raised about the paper he authored.

  210. From the halacha yomit website which is run by R. Ovadia’s grandson (who wrote the sefer on brain death which has his grandfather’s haskama):

    מרן הרב שליט”א חיוה דעתו באופן כללי, כי מי שמת אצלו גזע המוח בצורה ברורה מעל לכל ספק, ואין הוא מרגיש שום הרגשה ואינו מגיב כל תגובה שהיא, ונבדק בצורה אחראית ויסודית שאינו נושם כלל בכחות עצמו, אפילו בנשימות חלושות, הרי דינו כמת לכל דבריו, אף על פי שבעודו תחת המכונות הוא נראה כחי, ונשמר כך לאורך זמן בחמימות אברים ושאר פעילויות הגוף הבסיסיות. וכבר נתבאר ענין זה בספר “רוח יעקב” באריכות רבה.

    אולם, מכיון שלעת עתה אין בידינו בירור מספיק על מדת אחריותם של הרופאים שביצעו את הבדיקות לקביעת מיתת המוח בצורה נכונה, ופעמים רבות נודע בודאות שהרופאים מיהרו לקבוע מוות מוחי על אף שלא היה זה מוות מוחי, לכן, ללא בירור מדוקדק של רופא ירא שמים המתמחה בתחום זה (כגון הרב ד”ר מרדכי הלפרין, או הרב פרופ’ אברהם סופר), או על כל פנים לאחר התייעצות טלפונית איתו, אין למהר להחשיב את החולה למת.

    כל זאת בענין ניתוק חולה שכזה ממכונות ההנשמה וכדומה. אבל לענין הפסקת הטיפול התרופתי וכיוצא בזה, יש להקל יותר, ויש להוועץ עם תלמיד חכם הבקי בענינים אלה.

    לגבי תרומת אברים, השאלה מורכבת יותר, שהרי יש בדבר חששות הלכתיים כבדי משקל, כגון ענין ניוול המת, ואיסור הנאה מן המת, ועוד ועוד, וכפי שנתבאר בספר הנ”ל.

    One would have thought that the authors of the RCA paper could have at least bought the sefer, or done a google search!

  211. Thanks for the offer I am not sure I want to know. The explaination in the comments are enough

  212. Re R. Ovadiah Yosef: I am told that he was omitted from the paper because he has never written nor publicly spoken about the subject even though he is an extremely prolific author and has had over two decades and much urging by interest parties to do so.

    I’m not sure I would have done the same but presumably if the authors had included the various reports in his name and questioned their authority for the above reasons, they would have also been criticized.

  213. I agree with our Rosh Yeshiva R. Student that Moreinu ViRabbeinu R. Ovadiah Yosef has been ostensibly cautious regarding arriving at a decision regarding the definition of death, as evidenced by:

    (a) R. Ovadiah Yosef giving his approbation to contradictory responsa regarding interpretation of the Chatam Sofer. Namely, as demonstrated in my comment earlier on Jan. 27, at 2:23 p.m., Yalkut Yosef supports RSZA’s interpretation of Chatam Sofer, whereas R. Shlomo Moshe Amar supports RMF’s interpretation of Chatam Sofer. Both Yalkut Yosef and R. Amar have ROY’s signed support.

    (b) R. Ovadiah Yosef has recently published a responsum in Yabi’a Omer X (in the Yoreh De’ah section) explaining that it is permissible to remove a pacemaker from a dead person in order to save the life of a dangerously ill choleh lifaneinu. The obvious “elephant in the room” in this responsum of ROY is “and what about removing the heart itself to save a dangerously ill choleh lifaneinu”? The fact that ROY did not wish to address this issue in his responsum seemingly suggests that he regards it as doubtful.

    However, this is just speculation on my part, and I don’t want to place words in ROY’s mouth.

    Shalom Aleikhem Dr. Stadlan,

    Thank you and yi’yasher kochakha for prompting me to elaborate on the identity article. The apparent refutation from RJDB to RMF is that human identity depends upon birth, and so since the heart as an individual organ per se is not sufficient to create a status of birth, the disembodied frog heart is not the equivalent of a living frog. However, rosho virubo is by definition what creates a status of birth, and so perhaps the brain dead patient is alive because he possesses rosho virubo. Indeed, one might further speculate that perhaps the reason decapitation=automatic death (as per the gemara in Sotah 45b) is because decapitation negates the reality of rosho virubo. [This is obviously not RMF’s mahalakh at all. This is a “RJDB new mahalakh” to decapitation.]

    Honestly, I’m not chas vichalilah criticizing Moreinu ViRabbeinu RMF for overlooking this point in 1975. [I didn’t even exist then. Who am I to criticize?] As the leader of Klal Yisra’el, RMF successfully paskened the issue to Dr. Eidelman in 1975 based on the facts that were available then. It was only after RMF ascended to the Heavenly Academy, that RJDB materialized with his 2008 article in Tradition and brought a new perspective to the brain death debate. [I’m not sure if RJDB realized the significance of his article at the time he published it. But hopefully he listens to his telephone messages, in which case he should now.]

  214. So the law in Israel which only passed because Rav Ovadiah allowed it to never happened. His grandson who wrote a book on the subject and runs the website which publicizes his grandfather’s pesakim is making it up. The haskama on the sefer was forged etc. etc. Gil – an agenda is an agenda is an agenda. There is no excuse for this.

  215. Re ROY: And, of course, nothing stopped the RCA from trying to contact ROY directly to clarify matters. Once again, at best shoddy research; at worst an agenda. Once again, call it back and revise.

  216. R’ J.,
    Thank you for your excellent questions. Regarding the passage of the 2008 law in the State of Israel, R. Avraham Steinberg publicly explained at a conference in Lake Placid this past Shabbat Pinchas (which I was privileged to attend), that R. Yosef Shalom Eliashiv instructed R. Moshe Gafni: “Vote against the legislation in Knesset, but make sure the legislation passes.” In other words, R. Eliashiv wants to publicize that he acknowledges the viability of RSZA’s interpretation of Chatam Sofer (and therefore “vote against the legislation” which follows RMF but not RSZA), but at the same time, R. Eliashiv applauds the fact that the Knesset legislation allows as a matter of freedom of conscience for a family to request that a brain dead loved one be maintained on a machine (and therefore “make sure that the legislation passes”). Whether or not this is identical to ROY’s pesak halakhah, I admittedly cannot say.

  217. Joseph: I believe they did try to contact him but I’m not 100% sure.

  218. Doron Beckerman

    Rabbi Spira,

    Thanks again for your time and patience with me.

    Thus, according to what I am saying, a Jew could never register for organs even in the Diaspora, since to pasken that for Noahides brain death=death, I am taking away the Noahide’s money without consensus

    I don’t understand your argument here. Kim li means that I (the one who stands to lose) can say that your Posek (who says you can take my money) is not correct, so you can’t take my money away.

    The Noahide donor (who stands to lose) allowed his organs to be taken (kim leih that brain death is death), so you’re saying kim li (the recipient) that he is wrong, when my Posek says he’s right?

  219. An article about the sefer mentioned above:
    http://www.kikarhashabat.co.il/%D7%94%D7%A8%D7%91-%D7%A2%D7%95%D7%91%D7%93%D7%99%D7%94-%D7%99%D7%95%D7%A1%D7%A3-5.html
    The sefer is available for purchase online:
    http://store.medethics.org.il/index.php/ruachyakov.html
    It has a very warm haskama from Rav Ovadia (bit strange that he would do that if R. Sasson writes lies about his grandfather’s opinion WITHIN the sefer, as some would have us believe).

  220. Rav Shalom Spira
    Thank you and yi’yasher kochakha for prompting me to elaborate on the identity article. The apparent refutation from RJDB to RMF is that human identity depends upon birth, and so since the heart as an individual organ per se is not sufficient to create a status of birth, the disembodied frog heart is not the equivalent of a living frog.

    It is not clear to me how this is relevant to the issue – if anything, a ra’aya listor. The issue was not that the beating heart preparation had the identity of the frog – but rather, that the function of the heart could persist independently of any other physiological function – and therefore, one could have physiological death of the entire organism (as in decapitation)except for the heart, and maintaining the heart beat for a long time – so therefore, as decapitation is recognized as death, death can occur even while the heart beats. (BTW, this also shows problems with knowledge of physiology. I can do a beating heart preparation keeping the head attached, and the heart in the thorax -just severing the arterial and venous connections to the head and the body- – the brain will receive no blood flow, there will be no respiration, but the heart will continue to beat… It is technically easier to remove the heart from the body, but not actually necessary.- and one will have rosho verubo, and death,but living heart..would you call that frog alive or dead?…….)

  221. Thank you, Dr. Shinnar, for your kind response and for prompting me to better explain the matter. Dr. Eidelman testifies in the HODS interview that RMF told him that because the frog heart can beat outside the frog, this shows that circulation is never a sign of life. RMF is refuted by RJDB because RJDB’s article establishes that we only begin to consider whether a human being is alive if the human being is the continuity of the entity that was born from his mother many years earlier. That condition is not met (vis-a-vis the heart) when the heart is physically removed from the frog. That condition is met for the rest of the frog, which has rosho virubo, but since there is no circulation in the frog anymore (seeing as its heart has been removed), the frog is dead. I suppose I should add, though, that now that we presumably have the technical ability to build an “ECMO-like” machine that could artificially circulate blood through the heartless frog (much like R. Yonatan Eibeshutz claimed occurred in the celebrated heartless chicken controversy between himself and the Chakham Zvi, where R. Eibeshutz said another organ had taken over the functions of the heart), perhaps the frog is not dead until it decomposes so much that circulation could not be reinstituted by a machine. This latter point requires analysis. [On the other hand, perhaps only by human beings we say that the definition of death can be modified lichumra with the advance of medical technology and not with animals, just as we say by treifot. Therefore, perhaps the heartless frog is instantly dead, whereas the human being whose brain and heart have both died but who can be maintained on ECMO is not dead.]

    Thank you also for the fascinating question of what will occur if the arterial and venous connections of the heart to the frog body have been severed. I was not aware this is possible and it presents a fascinating investigation.

  222. Thank you, R. Beckerman, for your important question, which introduces a new factor into the equation (i.e. where the person himself announced in advance that he wants to be treated as dead if he is brain dead, and therefore he is mochel in advance on “kim li”). If a person signs an organ donation card, it runs into a problem of asmakhta (just like the RCA pre-nuptial agreement). If one should assume (like RJDB in opposing the RCA pre-nuptial agreement) that the asmakhta problem is unsurmountable, then “Kim li” is automatically claimed in the favour of the defendant by Beth Din, even if the defendant is too absent-minded (or brain dead, as the case may be), to advance a “kim li” claim before Beth Din. [Happily, RJDB has an alternative pre-nuptial agreement which avoids asmakhta. I definitely recommend that the RCA adopt it, but that’s a different post.]

    But more importantly, your comments have prompted me to research klalei hora’ah further and I have found (thanks to Encyclopedia Talmudit IX, p. 267) that the gemara in Shabbat 129a seemingly establishes that when there is a dispute regarding piku’ach nefesh, we follow the side that says to desecrate Shabbat. Thus, my whole “kim li” line of argumentation was superfluous. Thank you for saving me from my own absurdity. A brain dead patient should be treated as possibly alive simply because of the gemara in Shabbat 129a.

  223. Rav Shalom Spira
    Thank you, Dr. Shinnar, for your kind response and for prompting me to better explain the matter. Dr. Eidelman testifies in the HODS interview that RMF told him that because the frog heart can beat outside the frog, this shows that circulation is never a sign of life. RMF is refuted by RJDB because RJDB’s article establishes that we only begin to consider whether a human being is alive if the human being is the continuity of the entity that was born from his mother many years earlier. That condition is not met (vis-a-vis the heart) when the heart is physically removed from the frog. That condition is met for the rest of the frog, which has rosho virubo, but since there is no circulation in the frog anymore (seeing as its heart has been removed), the frog is dead.

    I remain puzzled by your logic.

    The issue is not whether the removed frog heart is still alive – where you argue that RJDB proves that since it is not continuous with the birth process, it can’t be considered alive. Even assuming that RJDB proves that – and whether or not he actually proves his thesis is one step, and whether it applies here is another step – but even assuming that both steps are correct, that is irrelevant to RMF’s fundamental thesis.

    Circulatory death argues that as long as the heart is beating, the organism is alive (ha beha talya..). The experiment shows that the heart can still be beating,and function (either outside the organism, as in what RMF saw, or inside the organsim, which is a simple variant) while the organism as a whole is clearly dead – and RMF therefore concluded that the presence of circulatory function can not be part of the definition of life – circulation (heart beat) persists while organism is dead. That is not dependent whether or not, based on some diyuk on a sevara of RJDB, one wants to call the heart technically alive…- it is beating…

  224. Thank you, Dr. Shinnar, for your important response. I believe that we are both saying the same thing regarding the dispute between RMF and RJDB. RMF paskened to Dr. Eidelman that he could dismiss the Chatam Sofer’s reference to circulation because he saw that a heart beats outside a human, frog, etc. Therefore, RMF thought that circulation is never a sign of life.

    What RMF did not realize – which has now been clarified by RJDB (and if it makes everyone more comfortable saying “RJDB as elaborated by Shalom Spira”, then so be it, I’m willing to take the blame for putting words in RJDB’s mouth) – is that the Chatam Sofer’s mention of circulation is dependent on there being rosho virubo, since all of life is dependent on rosho virubo. Without rosho virubo, a collection of cells with human DNA is not the same entity that was born from the mother many years ago. Thus, the beating heart outside of the frog or human is irrelevant, and RMF proved nothing by appealing to the frog or human heart beating outside the frog or human. [This does not mean a brain dead patient is necessarily alive. RMF may still be correct that a brain dead patient is dead for other reasons. But RJDB has effectively disproven RMF’s claim that the frog experiment proves that circulation is never a sign of life.]

    The new case you raise regarding a heart whose arterial and venous connections to the frog circulatory system have been severed is unique, and requires independent examination. Dr. Eidelman never testified that RMF discussed this.

  225. Rav Spira
    One last time:
    1) What you call a new case is something any one with physiology training will tell you is not fundamentally different than the other case (I am sure that Rav Tendler would be aware of) – from a biological perspective, it isn’t the location of the organ that is important, whether outside or inside – but what it is connected to. The fact that rav moshe did not discuss this case separately is rather proof that he didn’t think the issue important…
    2) The question is not whether the beating heart can be consider alive, it is whether the beating of the heart is intrinsially related to the rest of the organism – and the experiment separates the two.
    (A true circulatory death person would have argued that the experiment proved nothing, because the beating heart was still alive…)

  226. That said, I applaud you and I do affirm your conclusion, Dr. Shinnar, that RMF definitely held that brain death=death. “It is impossible for the living to contradict the living”, as per the gemara in Berakhot 27b. The testimony that HODS now presents is incontrovertible: RDF, RMDT, RSR, RMT and Dr. Eidelman. [I therefore apologize for what I originally wrote, as cited in footnote 135 of the RCA report, questioning what was RMF’s position.]

    I appreciate that the RCA report (p. 57) cogently focuses on the fact that RMDT wrote in 1989 that brain death “seems to be supported by Rav Moshe Feinstein”. However, this does not contradict the HODS testimony. RMDT is a tzaddik gammur, and RMDT was simply writing in a manner of humility. When a Gavra Rabbah like RMDT writes “seems to be supported by Rav Moshe Feinstein”, he means by way of gracious understatement “is supported by Rav Moshe Feinstein”. Indeed, in his 1988 symposium, RMDT explicitly testifies that RMF paskened on multiple occasions to deactivate the ventilators of patients who manifest signs of brain death.

    R. Aaron Felder and R. Shmuel Fuerst’s testimony (cited on pp. 61-62 of the RCA report) establishes that RMF never told them that brain death is death. [Likewise, R. Efraim Greenblatt reports in Shu”t Reevivot Efraim VIII, no. 319 that RMF never told him that brain death is death.] But RMF did tell others that brain death is death, and that is sufficient to trigger Tosafot in Yevamot 77a. Yes, it is a little surprising (as the RCA report sagaciously notes on p. 54) that RMF published IM, CM II, no. 72 in 1985, at a time when heart transplantation was now safe. But as they say “from a kashya a person doesn’t die” (-no pun intended, that’s the classic Yiddish expression). I.e. it’s a little strange why RMF chose to publish the responsum the way he did, but it can’t contradict the testimony of RDF, RMDT, RSR, RMT and Dr. Eidelman.

    In the end, I support the RCA report and I feel a brain dead patient must be medically treated as possibly alive, but not because of RMF. On the contrary, RMF ruled brain death=death. I must respect the greatness of RMF and humbly acknowledge that this was RMF’s conclusion. Nevertheless, the major events that occurred after RMF ascended to the Heavenly Academy (viz. RSZA’s responsa and RJDB’s 2008 Tradition article) creates a sfek piku’ach nefesh to counter RMF, and paves the way for the RCA report. Unfortunately for us who are bereaved on earth (but much to the delight of the Heavenly Academy which is rejoicing with the awesome presence of RMF), RMF is no longer here on earth to respond to these developments.

Leave a Reply

Subscribe to our Weekly Newsletter


The latest weekly digest is also available by clicking here.

Subscribe to our Daily Newsletter

Archives

Categories

%d bloggers like this: