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R. Jonathan Sacks on organ donation
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About Gil Student

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

430 comments

  1. GIL:

    “HODS vitriol continues”

    where is the vitriol?

  2. Berman slammed Sacks’s “declaration that encourages Jews not to donate organs upon brain death but not forbid Jews from taking organs from gentiles who are brain dead” as being “morally reprehensible.”

  3. GIL:

    could you please clarify your working definition of vitriol

  4. Rabbi Student. When do you intend to publicly defend Rabbi Broyde, who has been a not infrequent poster on this site. Do you intend to stand up for Rabbi Maryles? Why the silence on his high tech lynching by Matzav?

  5. Abbas’ Rantings: “something highly caustic or severe in effect, as criticism” In this case, has statements are also false and dangerous (re gentile organs).

    Artscrawl: I don’t respond to insults.

  6. I agree with Robert Berman (and at the same time I assert that R. Student is a tzaddik gammur). Normative Halakhah would seem to indicate “neither donor nor recipient be”, since there is an unresolved safek regarding whether a brain dead patient is alive, and therefore (pursuant to the principle in Yoma 83a that all doubts regarding piku’ach nefesh are adjudicated to the side of life) an unresolved doubt whether a person who registers for an organ is guilty of geram retzichah. R. Sacks – like every great Moreh Hora’ah Bi’Yisra’el – is the unenviable position of having to guide people through decisions of life and death. But it would seem that R. Sacks – like every great Moreh Hora’ah Bi’Yisra’el – has little choice but to direct his congregants to refuse to register for an organ.

    The situation is analogous to the problem with which R. Zvi Hirsch Meisels was confronted during the Holocaust, as he describes at
    http://www.hebrewbooks.org/pdfpager.aspx?req=1924&st=&pgnum=12
    A father’s son was captured by the Nazis for purposes of execution, and the father inquired whether he could redeem his son when he knew that another Jew would immediately be taken in his place. R. Meisels hemmed and hawed, but the bottom line was (-and to the credit of both the righteous Rabbi and the righteous father, the message was implicitly communicated and the Halakhah was followed) that the father had to let his son die in sanctification of the Name of Heaven, rather than be guilty of geram retzichah. Here the situation is a more emotionally complex because there is a legitimate safek to assume that a brain dead patient is already dead (depending on the unresolved cow lactation and Eli Hakohen disputes that long preceded the brain dead question) and one that according to reliable testimony was even followed by such luminaries as RMF and R. Joseph Ber Soloveitchik [apparently without their realizing the countervailing safek], but – as every safek ipso facto implies – there is an equally legitimate countervailing safek to assume that a brain dead patient is alive, thereby denying would-be-recipients the ability to register for organs.

  7. The point, though, is that no one has said that you can only take gentile organs. They have said that you can take any organs already removed — whether Jewish or gentile.

  8. Michael Rogovin

    Except that organs are not removed and then offered to a donee. Organs are removed only for that donee. This is the common factual error that has been made repeatedly in the comments section.

    While R Gil’s point at 11:42 is technically correct, still, the immorality of the position of take but not give stands, and even with respect to Gentile vs Jew, since if the position is followed, the likelihood is that the donor would be Gentile and the Jew would be complicit in murder by agreeing to take organs from someone who, at the time of the agreement was still halachicly alive (according to the LBD position).

    All in all, I found your headline is misleading and insulting — Mr Berman’s statements are in total no more vitriolic than Rabbi Tendler’s, but somehow you feel that you have more license to publicly censure Mr. Berman while being silent about R Tendler. Your headline could easily have been “R Tendler Attacks RCA”

  9. Michael Rogovin: You’re OK with a false statement in the press that rabbis encourage Jews to use gentile organs??? These issues are sufficiently complex that we don’t need hysterical calls that are easily used to stir anti-semitism — especially when they are wrong.

    I have chosen not to start up with Rabbi Tendler.

  10. Gil,I totally agree with you that this is very irresponsible of HODS.

    This is no way to have a Halachic debate – agree with me on brain death or your family members have no moral right to be listed for a transplant.

    That is an emotional argument. If one’s source of major halachic guidance have thoroughly studied the matter & view the brain death criterea as not being congruent with Halacha, there’s nothing a Halachic Jew can do about it.

    It’s irresponsible for one party to ask people to reconsider based on the libelous opinions that party will now share with the world.

    To be perfectly honest though, HODS would bever have the backbone to do this if it weren’t for the fact that RMDT has been saying and writing the exact same charge at every opportunity he can find.

  11. ” the donor would be Gentile and the Jew would be complicit in murder by agreeing to take organs from someone who, at the time of the agreement was still halachicly alive”

    This sounds like a blood libel! But I don’t see how this would not be accurate unless the halachah is according to Rav Tendler.

  12. GIL:

    “The point, though, is that no one has said that you can only take gentile organs. They have said that you can take any organs already removed — whether Jewish or gentile.”

    this point is irrelevant, because as has been pointed out numerous times to you, for the most part critical organs are *not* banked (actually i don’t think critical organs are banked at all, but i’ll hedge my bets here). i.e., they are not removed (or the host is not murdered, if you prefer) unless there is a waiting recipient.

    STU:

    “This is no way to have a Halachic debate – agree with me on brain death or your family members have no moral right to be listed for a transplant. That is an emotional argument.”

    No. It’s not an emotional argument. To the contrary, it’s one of practical policy.

  13. “Artscrawl: I don’t respond to insults.”

    I did not insult you. I merely asked whether you intend to come out publicly in support for Rabbi Broyde, who has been nice enough to occasionally post on this site. I also ask whether you agree with Matzav or Rabbi Maryles. I wonder why you find this question to be insulting.

  14. I think that vitriol is an extremely inappropriate word to use here.

  15. Artscrawl: I’m not saying you insulted me. I’m saying I won’t respond to R. Broyde or R. Maryles being insulted.

  16. STU:

    “This is no way to have a Halachic debate – agree with me on brain death or your family members have no moral right to be listed for a transplant.”

    maybe in america we can have the luxury of labeling that utilitarian application of organ donation as an emotional argument. we can sit back and argue the halakhah with the same ramifications as arguing the halakhot of one who falls into a pit or is gored by his neighbors ox. but in israel they don’t have this luxury. i mean gil is worried about the anti-semitic fallout of HODS’s rantings, but what about the fact that israelis seem to be implicated every time an international organ trafficing ring is busted? or that it was necessary for RYE (kol hakavod to him) for assur using chinese organs?

    as we sit back and argue the halakhic issues

  17. R’ Artscrawl and R. Student: You are both tzaddikim gemurim. R. Student didn’t mean to say that R’ Artscrawl insulted him. R. Student meant to say, that – as per the gemara in Yoma 23a – he follows the noble practice of being “ne’elavin vi’einan olvin”.

    Rabbi Abba – You are 100% correct. That’s why I would “just say no” to ever registering for an organ that depends upon brain death. Even for organs that don’t depend upon brain death, there is a question in my mind (no pun intended) because I am uncertain how much time must elapse following circulatory arrest for resuscitation by an ECMO machine to be impossible. [Presumably, until that time, it would be problematic to take an organ.] Dr. Stadlan’s article beautifully illustrated this point. It is a real enigma that deserves exploration.

  18. GIL:

    “I’m saying I won’t respond to R. Broyde or R. Maryles being insulted.”

    but you respond to “vitriol” against r. sacks?(and i’m sorry, but imho you misunderstand what vitriol means.)

  19. R. Shalom:

    “for organs that don’t depend upon brain death, there is a question in my mind (no pun intended)”

    there can be no pun here. the part of the brain that for the most part is involved in “thought” is the cerebrum. however, for the context of this debtate we are concerned not with the cerebrum but rather the brain stem.

  20. “Berman slammed Sacks’s “declaration that encourages Jews not to donate organs upon brain death but not forbid Jews from taking organs from gentiles who are brain dead” as being “morally reprehensible.”

    How is that any different from what R. Cherlow published? Ah, you’ve probably chosen “not to start up with” R. Cherlow and who you wish to start up with. Pretty selective in your insults.

  21. The only acceptable “clarification” from the RCA would be a retraction of its paper and starting over from scratch, this time resulting in a fair and balanced or at least honest paper.

  22. I decided not to link to R. Cherlow’s letter to the editor. But R. Cherlow at least did not attack anyone.

    Vitriol is precisely the right word to use here, but I quoted above from a dictionary definition. Robby Berman’s bringing in the distinction between Jews and gentiles is inaccurate and irresponsible. If I were in charge of the world, I would have him tarred and feathered for that level of irresponsibility.

  23. No, I think the responsible thing would be for the RCA to pasken. Not in a way that is binding on its members but as a guide to rabbis who are interested.

  24. GIL:

    “Robby Berman’s bringing in the distinction between Jews and gentiles is inaccurate”

    as a matter of practical policy, how is it inaccurate?

  25. Because it applies equally to organs from Jews and gentiles.

  26. Rabbi Abba: Touché. Thank you for rescuing me from error.

  27. Lawrence Kaplan

    Gil: Since for whatever reason, you chose “not to start up with” Rabbi Tendler, you ought to have, for consistency’s sake, not “started up” with Robert Berman Or, speaking of vitriol, should that be a kal ve-homer?

    Joseph: In an ideal world you would be right, but surely you know that a “clarificition” is, more often than not, a euphemism for a retraction. It seems to me that the RCA here is trying to extricate itself from the pickle it got itself into, while trying to save some face– not that anyone is fooled.

  28. GIL:

    “Because it applies equally to organs from Jews and gentiles.”

    true or false: if r. sacks, etc. had their way, brain-stem dead jews would not be harvested for organs.

  29. That is irrelevant. In reality, most Jews, including many Orthodox Jews who follow other poskim, will allow organ donation. Does the London Beth Din allow Jews to use organs donated by those other Jews? Yes.

  30. GIL:

    that’s not what i asked.

  31. I know. Instead of asking about the theoretical underpinnings of the ruling or its practical implementations, you asked about a messianic scenario.

  32. “Joseph: In an ideal world you would be right, but surely you know that a “clarificition” is, more often than not, a euphemism for a retraction. It seems to me that the RCA here is trying to extricate itself from the pickle it got itself into, while trying to save some face– not that anyone is fooled.”

    Sorry, brother, I don’t agree. In its “clarification” the RCA repeats what it says in the paper; that it is not taking a position, just presenting the relevant facts, Ma’am (remember Jack Webb in the original Dragnet?) in a fair and balanced way, and leaving it up to each of their members to decide the halachic issue if and when it arises with their halachic authority. In reality, the thrust of the paper is an argument 9based on faulty research and, we have been told, faulty medical information) that brain death is not halachic death, but they were not, and still are not, honest enough to admit that is what they have done.

    Others have used legal analogies about this issue so let me use one. Very early on in my first job I was asked to draft an appellate brief on a case that my firm lost at trial (before I joined :-)). After I submitted a first draft (it was the first one I submitted; it was probabky my fifth or sixth), the senior associate on the case, with whom I had worked as a summer associate and with whom I had a friendly relationship, came into my office and said something like this: that was a really fine law school legal memo you wrote; now let me tell you something about an advocate’s brief. The RCA claimed to have written a legal memo but what they issued was a brief, and they still won’t admit it. That’s neither fair nor honest.

  33. GIL:

    “Instead of asking about the theoretical underpinnings of the ruling or its practical implementations, you asked about a messianic scenario.”

    messianic scenario? a lot of your comments seem to imply that you (and others) think organs are harvested and banked, and you are then drawing halakhic implications from this misunderstanding. organ banking is what is a messianic scenario, in the meantime organs for the most part are not banked or otherwise removed unless there is a matched recipient ready to recieve.

    you want a practical question? shimon has 3 months to live unless he gets a heart transplant. may he add his name to the waiting list, knowing full well that the only way he will get a new heart is if a patient with no brain stem activity will be murdered for his benefit?

  34. let me clarify that question: shimon has 3 months to live unless he gets a heart transplant. may he add his name to the waiting list, knowing full well that the only way he will get a new heart is if a patient with no brain stem activity matches him and will be murdered specifically for his and only for his benefit (and who otherwise would not be murdered)?

  35. Sorry for being vague. I was equating all Jews following halakhah with a messianic scenario. Until that happens, the chief rabbi allows Jews to accept organs from any donor, Jew or gentile, under specific circumstances that do not often happen.

  36. SrtszrrzzaseZzzyzsews2Su

  37. Hirhurim
    Michael Rogovin: You’re OK with a false statement in the press that rabbis encourage Jews to use gentile organs??? These issues are sufficiently complex that we don’t need hysterical calls that are easily used to stir anti-semitism — especially when they are wrong.

    Why is it a false statement? It seems a perfectly accurate description of the position maintained by RSZA (who permitted receiving organs outside of Israel as the donors are mostly gentile), and as well of the position that the RCA paper seemed to support – that said that Jews should not donate, but may accept organs. (One could argue that the RCA, and Rav Sacks and the English bet din, should be that rabbis encourage Orthodox Jews to use nonOrthodox organs – but that is hardly better)
    The probem is that the position of the RCA (even though it denied having a position…), of Rav Sacks and the English bet din, etc – are morally indefensible as a communal policy. Focusing on those who expose this moral morass seems more akin to shooting the messenger – rather than on focusing on the problem (at least the response by Gil suggests a realization of the moral problematics of the position being proposed – which is a step in the right direction)

  38. One general remark on Shalom Spira’s posts. While he shows erudition, the underlying thesis of his posts (as I read them), is the concern that if one psak is challenged by another major posek of suitable stature, on an issue of this importance, we have to be choshesh. the issue is not deciding between competing opinions – but being hoshesh lechol hashitot (or, at least, the shitot of poskim that he recognizes).

    Far be it from me to pasken on a major issue – but there are clearly other opinions on how to resolve a machloket haposkim than just being hoshesh for all of them…

    Furthermore, while the issue of what the halachic criteria of death and what would allow organ donation is a major halachic issue (it is interesting that rav Spira cites Rav Elyashiv in a way that would at least partially disassociate halachic criteria of death from organ donation, because he holds that gram retzicha to a gosses is not assur (a similar (although not identical) position was articulated about 40 years ago by hagaon rav regensburg – that views what may be done to a gossess differently than to a regular person), what does not quite resonate in this discussion that we are dealing with dine nefashot – in two different ways. While the discussion has focused on the donor, we should realize that given the current shortage of donors, anytime someone dies who could donate and doesn’t, other people will therefore die (more than one, because the vast majority of the time, more than one organ is donated, and goes to more than one person) – and when one is here machmir on dine nefashot – the question is which life one is machmir on…..(and I would say that while there may be a safek about the donor, there is no safek about the recipient…)

    This is the current medical reality – very different when rav moshe’s initial tshuva on heart transplantation was written – that one is doing a double murder – both of the donor and the recipient – and while one can argue about the donor, today, one is giving a chance for life to the recipient.

    That does not necessarily change the halachic conclusion – and the issue of whether it is permitted is a difficult one – requiring both halachic knowledge and integrity (and, as discussed previously, the RCA statement demonstrated a lack of integrity) – but it needs to be done in full awareness of the implications on the lives of many. That does not lead to a particular decision – eg, rav ahron soloveichik’s psak, while against donation, shows a full awareness of the moral issues to the individual donor and implications on the lives of others – but there has to be awareness of the moral implications of a decision in both directions – and merely being hoshesh lechol hashitot is problematic.

  39. Michael Rogovin

    I understand how you read Mr Bermans statement as a false assertion that Rabbis encourage Jews to use gentile organs. However, I think most people read it (and the RCA/LBD) as: (1) Jews may not donate organs, it is murder; (2) Jews may accept donated organs, even though it is murder; (3) Thus, practically, the only organs on the market (since only Jews listen to Rabbis) would be gentile. I realize that the Rabbis are NOT saying it is OK to kill gentiles, but I do not think it likely that the majority will see that distinction. The majority or organ donors are not Jewish. If we say it is OK to harvest organs from people who are still alive, we are saying it is OK to kill people, most or all of whom are gentiles (since we already said it is not OK to kill Jews) to get their organs and preserve Jewish life. There are no banked organs, one must (other than accepting R Tendler’s psak) kill the donor to get them. Mr Berman may be irresponsible in adding his voice to the chorus, but I don’t think that he is incorrect as to the logical consequence.

  40. Again: the poskim allow Jews to receive organs that have already been harvested from anyone, Jew or gentile. It may not be a common phenomenon for organs to be already harvested, but they do not distinguish between Jew and gentile.

  41. Michael Rogovin: Where does the RCA say that Jews may only accept organs from gentiles? They didn’t. They didn’t pasken at all but those who think they did would have to say that the RCA allows Jews to accept organs from anyone. Anything else is an inference, and a faulty one. In the hospital today, a Jew who wants to follow what Robby Berman incorrectly believes is the RCA’s position, will accept an organ already harvested from any person, Jew or gentile. Until the day comes that every Jew in the world follows what Robby Berman incorrectly thinks is the RCA’s position, that will remain the same. And if gentiles also want to follow what Robby Berman incorrectly thinks is the RCA’s position, they have every right to do so.

    His statement is incorrect and irresponsible.

  42. From what I understand based on the comments of doctors and scientists on related posts, saying “the poskim allow Jews to receive organs that have already been harvested” is like saying “the poskim allow magic carpet flight on shabbos.” It is just a completely irrelevant and strange statement. No vital organs are put into banks for later use ever.

  43. But what about someone whose other vital organ was already removed?

  44. Gil – let’s call a spade a spade – in the halachic discussions of certain of R. SZ’s talmidim (I’m not implicating R. SZ in this), reference is made to organ donation being retzicha but being muttar davka by a nachri, because it is muttar to cause the death of a nachri in ways that may not be for a yehudi. We might as well stop pretending that this view exists. Once we realise that this view is the basis of many who allow receiving organs ‘to order’, we might realise that Robby Berman has a point.

  45. Anonymous: I am not aware of such discussions. I did not see it in the RCA paper and have not read every treatment of this subject. If Robby Berman wants to criticize the RCA, he should do it based on what they said.

  46. ” the poskim allow Jews to receive organs that have already been harvested from anyone, Jew or gentile”

    R’Gil,

    The organs are not harvested unless somebody asks for them.

  47. Then what is the big problem?

  48. R’ Anonymous,
    Thank you for the illuminating insight. But, as cited approvingly by R. Bleich in Benetivot Hahalakhah III, p. 155, the Meshekh Chokhmah to Exodus 21:14 declares that it is even *more* important for a Jew to eschew killing a Noahide than for a Jew to eschew killing a Jew, since by the Jew eschewing killing a Noahide, the Name of Heaven is sanctified. That message is underscored by the gemara in Yevamot 79a, and RSZA certainly did not contest this. Thus, RSZA never permitted killing a Noahide, even to save a Jew. Rather, RSZA proposed the chiddush that the Noahide Code allowed the Noahide legislature/judiciary to modify the parameters of homicide such that – for Noahides – the laws of homicide will be different than for Jews (if that is what the Noahide legislature/judiciary truly wants). However, as demonstrated in the “Brain Death in the News” forum, in my comment on Dec. 7 at 5:30 p.m., RSZA’s chiddush is not normative.

    That said, I definitely agree with Robert Berman that a Jew should not register to receive organs that are dependent upon brain death. Indeed, probably the best solution to that effect is for the United States government (and other governments) to pass a constitutional amendment defining death as whatever standard is accepted by halakhic consensus. This would rescue the healthcare profession from being subject to a crisis of conscience.

  49. “That said, I definitely agree with Robert Berman that a Jew should not register to receive organs that are dependent upon brain death.”

    That just made me laugh out loud.

  50. Lawrence Kaplan

    Hi Joseph: I often mention Dragnet in class, and my students look at me in complete bewilderment.

    Re the “clarification”: While I certainly agree with you re your criticism of the RCA position paper and your wish for a more honest “clarificaton,” I think the “clarification” is more slippery than you acknowledge. The “clarification” never quite says that the paper just presented the facts and did not take a position. They say that that is what they are doing now. Moreover, they acknowledge that the paper received strong reactions, implicitly admitting that it was controversial. I am struck by how little they defend the paper. The statement does not say, for example, that the paper was misconstrued. Moroever, the fact that the statement speaks about the possibility of issuing further papers on the subject presenting a variety of issues again seems to me to be an indirect admission that the paper was unbalanced.

    I think a lot of negotiating went into the statement. It was not case here of simply circling the wagons.

  51. “Then what is the big problem?”

    Unless you hold by Rav Tendler, by signing up to potentially receive an organ transplant, a Jew is asking that someone (Jew or non-Jew) be deliberately murdered.

  52. Assuming the quote is accurate Berman should be removed from his position forthwith. Nobody making such statements should be leading a Jewish (or serious) organization.

  53. Shalom Aleikhem Dr. Shinnar,

    Thank you for your very kind words, which are much appreciated. I think you have excellently identified the concepts, and have provided us with enriched food for thought. You are 100% right: a decision to regard the brain dead patient as potentially alive is automatically a decision to condemn the would-be-organ-recipient to death (-unless the would-be-recipient is placed on ECMO to maintain his circulation artificially even while in the patient is in a state of multiple organ failure, but I imagine that only a limited number of ECMO machines are actually available in any given hospital ICU). Thus, it is impossible to safely cover both bases (of caring for the lives of both the putative donor and putative recipient) with room for error. By my being “choshesh likhol hasheetot”, I am condemning countless innocent patients (who desperately need organs) to death.

    Why, then, am I “choshesh likhol hasheetot”? I am motivated by the Rema in Shulchan Arukh Choshen Mishpat 25:2, who directs that when there is an unresolved conflict of poskim, regarding a matter of Torah law we must be stringent. The cow lactation and Eli Hakohen disputes seem unresolved to me, so I think we’re forced to be stringent. [And since this is a doubt regarding piku’ach nefesh, we are even further prompted to be stringent by the Mishnah in Yoma 83a.]

    As the gemara in Gittin 6b remarks “is there any doubt before Heaven?” HKB”H knows the Halakhah crystal clear, and it is entirely possible that He knows that Shalom Spira is totally wrong and that a brain dead patient is totally dead. But that information is top secret and not disclosed (at least not yet). Hence, I regard ourselves as being “anoose” (in circumstances beyond our control), and “anoose Rachamana patreih” (as per Nedarim 27a) to exempt us for moral responsibility from the inevitable deaths of the would-be-organ-recipients (again unless an ECMO machine is available), so long as the underlying disputes remains unresolved.

    I acknowledge that RMF and RYBS did not see it this way. They paskened that brain dead patients are definitely dead. [I accept the testimony of RDF, RMDT and R. Binyamin Walfish as authoritative.] But RMF and RYBS never authored a responsum explaining how to be makhri’a the cow lactation and Eli Hakohen disputes. So, I think we’re stuck, and since “Kol Di’aveed Rachamana litav aveed”, our being stuck is for the ultimate good.

  54. R’SS,
    True-but if one imho studies halacha (e.g. mlachot on shabbat) one sees many cases where there are “yesodesdik”(as we say it the velt :-)) disputes where we blithely accept onw opinion even though it means that according to the other we are committing a capital crime by doing an actio on shabbat. See yoma 2a – ein ladavar sof!
    KT

  55. That’s the one with Joe Friday and Col. Potter, right?

  56. Yes.

  57. “Lawrence Kaplan on January 10, 2011 at 6:23 pm
    Hi Joseph: I often mention Dragnet in class, and my students look at me in complete bewilderment”

    Je me souviens Dragnet-but I guess natives of la belle province don’t.
    Maybe make references to the pocket rocket-and see how many understand it.

  58. According to MDJ who is a doctor it is not uncommon for an organ recipient to be the only recipient from the brain dead donor. So – if a person who holds by brain death wants to receive an organ and doesn’t want to rely on the distinction between goyim and Jews when it comes to retzicha he should tell the hospital that he will only take an organ from someone who is already donating to non-Jews. I don’t think this is what most rabbis who don’t hold by organ donation recommend, which is what has lead various proponents of organ donation to call the strict position “morally reprehensible.”
    If I didn’t hold by R. Moshe and I therefore wouldn’t donate organs I would be perfectly comfortable accepting one if I needed it(ch”v) relying on RSZA without the above stipulation. I am sorry if that makes me a morally reprehensible person. I trust RSZA when it comes to the technical halacha about whether goyim can rely on their own ethicists for a real gray area like this (I say “real” because some of what they call gray isn’t – like partial birth abortions). Once I trust that they are allowed to determine what is or is not murder for them, I have no problem benefiting from a perfectly muttar action that one of them carried out. I would reciprocate, but my hands are tied because my ethicists will not allow me to donate organs.
    If someone who keeps yoshon as halacha hears someone making havdala on chadash beer he is not yotzei. However, if he keeps yoshon as a chumra and he hears someone make havdala on chadash beer he is yotzei. In both cases he would not have done it himself. The difference is that in the second case he doesn’t think it was wrong for the havdala maker to drink the beer. It is wrong (and therefore doesn’t halachically work) to benefit from an action you believe is wrong. It is not wrong to benefit from an action you would not have done yourself but which you do not believe is wrong.

  59. I’d just like to say that I find the Schiffman news fascinating and intriguing. Waiting to hear more…

  60. FTR, I didn’t say it was uncommon. I said that it can happen and I don’t know how often it happens.

  61. mor
    According to MDJ who is a doctor it is not uncommon for an organ recipient to be the only recipient from the brain dead donor. So – if a person who holds by brain death wants to receive an organ and doesn’t want to rely on the distinction between goyim and Jews when it comes to retzicha he should tell the hospital that he will only take an organ from someone who is already donating to non-Jews.

    As someone who was involved in transplant, it is quite uncommon – but possible. every donor (and donor family) can designate if they wish to donate everything – or just some organs – but also, the organ has to be suitable for transplant (eg, someone with signficant heart disease, his heart will not be accepted ) – which requires some testing to determine. However, if any organ is donated, it is likely to be the kidneys – and most people have two kidneys saving two lives.

    However, I can’t see ANY hospital or transplant team willing to accept as a condition based on the religion of other recipients – if anyone insists on such a request, he will not receive an organ.

  62. Shalom Spira
    Why, then, am I “choshesh likhol hasheetot”? I am motivated by the Rema in Shulchan Arukh Choshen Mishpat 25:2, who directs that when there is an unresolved conflict of poskim, regarding a matter of Torah law we must be stringent.

    As far as I know, most shut by most poskim, do not follow this systematically in other areas of halacha eg, – we do not do this in hilchot shabbat, kashrut, aguna, etc etc

    My understanding is that in hilchot pikuach nefesh, saying we are machmir on pikuach nefesh – does not mean that we take every possible rabbinic humra – but rather, that we take every possible kula to save a life….
    Therefore, rav spira is entitled to pasken as he does – but I am surprised that he does not recognize that his position is not mainstream..

    Meir Shinnar

  63. “I can’t see ANY hospital or transplant team willing to accept as a condition based on the religion of other recipients ”

    In the United States that would be illegal, in fact the hospital would be shut down rather quickly.

  64. Correction: My last comment should have said that I never said that it was common, not UNcommon.

  65. >My understanding is that in hilchot pikuach nefesh, saying we are machmir on pikuach nefesh – does not mean that we take every possible rabbinic humra – but rather, that we take every possible kula to save a life….

    However that cannot apply in this case as we may be taking one life in order to save another life, which is never allowed.

  66. another instance where yu rabbis are not seen as the only leaders of mo anymore: now its organ donation
    http://organdonationstatement.blogspot.com/
    as i said previously – the schism is only starting but it may happen faster than i thought. many the rabbis are from israel as well. but will the list grow?

  67. Drs Meir Shinnar and Charlie Hall illustrate the fact that brain death is viewed as the only definition of death in the American medical world, which proves my point that the real conflict is between the Harvard criteria which have been viewed as the only definition of death that in the medical and hospital worlds despite the fact that prior to their being disseminated and accepted therein, Chazal, Rishonim and Acharonim were using definitions based on the cessation of respiratory and circulatory function.

    The real issue is that brain death has never been univerally embraced and viewed by all, or even a majority of the major Poskim as completely compatible with Halacha and that in the absence of such an opinion, it is irresponsible IMO for anyone to claim that any other opinion to the contrary is immoral or reflects a lack of knowledge of the medical metzius, especially if the issue revolves the following issue-a Safek involving a possibility of Rtzchicha in order to save another person’s life.

  68. steve b. – its irresponsible that with new technology and science the that one clings to outdated criteria(that do not make any sense scientifically) in the case of pikuach nefesh. its like saying if we had dinim based solely of the fact the world is flat and then we found out its not to keep those same dinim (assuming the not flat effects the mitziut). its divorcing science and its new reality from halacha. i may understand (but not agree) if its the charedei world – but the mo world? the morality is only based on the ramifications of the issue.
    next you will insist on bringing back astrology because chazal believed in it.

  69. “it is irresponsible IMO for anyone to claim that any other opinion to the contrary is immoral”

    Steve, there is no one (at least on this thread) saying that rejecting brain death is immoral. People are arguing that refusing to donate because you think it is safek retzicha but then accepting donated organs which are a product of that safek retzicha is immoral.

  70. “brain death is viewed as the only definition of death in the American medical world”

    Most of the rest of the world as well. See below.

    “the Harvard criteria which have been viewed as the only definition of death ”

    It is more complicated than this. 2 1/2 years ago I attended a neurology conference in Europe where one of the sessions featured the report of a committee that was trying to operationalize the criteria for brain death, which at that time had been legally defined as the official criteria for death in most of Europe. (IIRC Denmark was a holdout.) The committee was having a very difficult time developing guidelines.

    “a Safek involving a possibility of Rtzchicha in order to save another person’s life”

    Safek? If you don’t hold by Rav Tendler, there is no safek. Harvesting organs requires murder!

  71. Of course chazal used respiration and circulatory function to define death and not brain function. If they didn’t know how the brain worked and its importance to the body, how could they possibly have adopted ‘brain death”? But that leaves the question of whether we should simply ignore everything we have learned about the workings of the body in this area because chazal ‘s scientific knowledge was lacking. Sure, Mycroft, they get to make the decision of when death occurs, but if they have to understand the brain before they can evaluate brain death and that’s one area where doctors come into play. And saying we’re bound by their decision which was based on incomplete information doesn’t sound like MO to me.

  72. Charlie Hall –

    I think your statement:
    “Safek? If you don’t hold by Rav Tendler, there is no safek. Harvesting organs requires murder”!
    is simply incorrect. Rav Schachter and, according to some, Rav Elyashiv hold that harvesting organs from a brain dead patient is a safek retzicha.
    RSZA is different. He says it is retzicha for a Jew but not for a non-Jew. Not because, G-d forbid, non Jews have some kind of sub-human status, but because they have the right to determine their own laws for these kinds of things.
    A person who follows R. Schachter, R. Elyashiv, or Rav Shlomo Zalman, (and I am sure I have missed some others) cannot donate his own organs but does not consider organ harvesting to be murder.
    Furthermore, you could have someone who follows Rav Tendler/Rav Moshe, as far as believing that the halacha is like them, but who, out of respect to the more machmir poskim chooses not to sign an organ donation card anyway. This is like someone holding that shkia is like what the Gra said but keeping Rabbeinu Tam. (If you want to say that in this case the chumra is a kula I will say in hachi nami, just you could have someone like that.)
    We have just listed four possible positions which a person could have which would lead him not to sign an organ donation card but at the same time not to consider organ harvesting to be murder.

  73. I can’t believe what my eyes have seen. The statement of the left-wing rabbis is beyond disgusting.

  74. What specifically is “disgusting” to you? The assertion that if one can’t donate the organ because it would be retzicha, then it is morally untenable that one can receive organs (as a result of retzicha)?

    “In Israel the rate of organ-donation agreement is only 45 percent, a rate that is about 50 percent lower than in most Western countries. The percentage of signatories that have a donor card (“ADI” cards) in Israel is only 8 percent; in Western countries the percentage of signatories to similar cards is 30-40 percent. With a rate similar to that in the West, we would be able immediately to double the number of organ transplants each year, and to shorten the waiting list, which now stands at about 1,000 patients, in just a few years.” (http://tinyurl.com/3amswau)

  75. To be clear, for those who believe it is halachicly acceptable to accept, but not donate: le’ma’aseh, what does that mean for Israel where Jews constitute 75% of the population? The (illegal) int’l black market?

  76. R’ Joel Rich and Dr. Shinnar,

    Thank you for your excellent responses. You are both correct: the Rema in Choshen Mishpat 25:2 (based on Avodah Zarah 7a and Rambam, Hilkhot Mamrim 1:5) refers only to unresolved disputes. Where there is a resolution possible (e.g. Beit Yosef has investigated, and has come to a certain conclusion), and the resolution is in favour of the lenient position (even regarding a mitzvah di’oraita), then the Halakhah will authoritatively follow the lenient position. But at this stage in the Oral Torah, I don’t see anyone with the answer to the longstanding disputes regarding cow lactation and Eli Hakohen. That’s why I think the Rema is applicable. [I could be wrong… I’ve been wrong many times before… life is about learning from my mistakes…]

    Actually, R’ Mor has correctly pointed out in the “Death by Neurological Criteria” forum, on Jan. 10, at 6:37 p.m., that there is a sfek sfeka likula (at least when the entire brain, including the hypothalamus, has died), in order to regard the brain dead patient as dead. Since the Rema’s principle is based upon “safek di’oraita lichumra”, when there is a sfek sfeka, even the Rema should countenance leniency. R’ Mor caught me unprepared with his excellent case (-I tip my hat to him), and my response is now posted in the following comment there: viz., sfek sfeka likula often works, but not in cases of chazakah, and not in cases of piku’ach nefesh. Thus, even though there is a sfek sfeka likula (at least when the entire brain dies, including the hypothalamus) still we are compelled to treat the brain dead patient as potentially alive (albeit only remotely doubtfully so) since the brain dead patient is a case of both chezkat chaim and piku’ach nefesh.

  77. The signatory list looks suspiciously similar to that of the “Statement of Principles.”

    Why must the Devil have all the best tunes?

    (For those who don’t get the reference, I agree with the former but not the latter.)

    Gil: Perhaps set up an “organs” open thread, so it doesn’t hijack the “news” one?

  78. Interesting that R. Meir Lichtenstein (Rav Aharon’s son) has signed the ‘rabbinic statement regarding organ donation and brain death’.

  79. “Interesting that R. Meir Lichtenstein (Rav Aharon’s son) has signed the ‘rabbinic statement regarding organ donation and brain death’.”

    He and a lot of other authoritative rabbinic leaders signed the statement-of course others clearly did not sign it. What is so interesting about his signing it?

  80. Lawrence Kaplan

    R. Meir Lichtenstein is his own man.

  81. R’ Tendler will be speaking on the subject Monday night in Jerusalem.

  82. I suppose it would be more interesting if we were talking about the son and grandson of Charedi rabbinic figures, say the Belzer Rebbe’s son (and grandson of the Satmar rebbe). In that case we could probably deduce something about his father’s position, and his understanding of his grandfather’s position; here that is probably less true; although I fail to see why R. Twersky’s interpretation of his grandfather’s opinion should carry more weight than R. Lichtenstein’s, unless the latter really does consciously disagree with his grandfather.

  83. Sorry – the Belzer Rebbe’s son is the grandson of the Vizhnitzer Rebbe, not the Satmar rebbe.

  84. “mycroft on January 12, 2011 at 8:09 am
    “Interesting that R. Meir Lichtenstein (Rav Aharon’s son) has signed the ‘rabbinic statement regarding organ donation and brain death’.”

    He and a lot of other authoritative rabbinic leaders signed the statement-of course others clearly did not sign it. What is so interesting about his signing it?

    Lawrence Kaplan on January 12, 2011 at 8:17 am
    R. Meir Lichtenstein is his own man.””
    Agree with Prof Kaplan-in general I think way too much is assumed by people if there are family relationships. Children do not necessarily follow their parents views and siblings views. It is a mistake to try and ascertain peoples views by what “close family members” state. The most obvious example is probably from Prof Kaplans article about Revisionism and the Rav showing how RMM is not an accurate source. But even moire obvious, I believe Prof Kapln has blogged about another nephew of the Rav -L Gerber- who has different viewpoints on the Ravs hashkafa than RMM does.
    It is a mistake to rely on family members to determine what public figures believed-look attheir published writings andthen of course what they did during their lifetime-especially what was done lifnei am vedah.

  85. Steve Brizel
    The real issue is that brain death has never been univerally embraced and viewed by all, or even a majority of the major Poskim as completely compatible with Halacha and that in the absence of such an opinion, it is irresponsible IMO for anyone to claim that any other opinion to the contrary is immoral or reflects a lack of knowledge of the medical metzius, especially if the issue revolves the following issue-a Safek involving a possibility of Rtzchicha in order to save another person’s life.

    No one ever made this point (not atypical for many of Steve;s posts) . I think that people have argued several separate issues:

    1) Medical metziut. Classical understandings of time of death become to apply consistently when circulation and respiration can be artificially supported – or rather, their consistent application would lead to conclusions that no one has argued for (eg, duration of CPR) – and the question is how to formulate the appropriate response. Whether one ends up accepting brain death in the form of the Harvard criteria, brain death in another form (that may not allow transplant), or is able to formulate a coherent cardiorespiratory death formulation for the current medcial reality (something not yet done…) – is a different issue. We value halacha enough to give those poskim who pasken with integrity and knowledge of the metziut. What was problematic for some of us is that the RCA document showed a clear lack of understanding of the medical metziut – this is a factual, not a value, assessment – and furthermore, seemed intellectually dishonest in its approach – and it is the RCA that therefore seems to disrespect the integrity of halacha – they have a predefined position they wish to achieve, and will do anything to get there..

    2) There is a moral dimension to the argument about the recipient as well as the donor (and Steve can check that I agreed that one can be opposed to brain death and be moral, as in Rav Ahron Solovechik’s psak – who is aware of the moral dimension while opposing brain death). One may legitimately value the safek on the donor over the vadai of the recipient – but one has to be aware of the existence of the recipient.

    3) The main moral argument is the asymmetry between the belief that donation is wrong (with some variants on why it is wrong) – but that it is generally acceptable for a community to argue that it does not want to give, but does not want to receive. I am more tolerant than some, in that I find it difficult to judge an INDIVIDUAL (or his halachic advisor), who, facing death, chooses to receive from what he considers murder.

    However, for a community to publicly state that this is its policy – we will not give, we will recommend those Jews who follow us not to give – but insist on our right to receive (and receive equally with others) -no matter how many technical reasons one can find to allow this, this is morally repugnant, and a hillul hashem befarhesya. Robby Berman of HODS nailed it properly (albeit too mildly – he should have been vitriolic…) – and the condemnation of him shows a moral obtuseness. It is fine for the community to declare that it is opposed to donation because it does not believe in brain death – but not to wish to benefit from what it thinks is the murder of others. It is not something that is defensible – and the best thing that can be said about the attacks here on Robby Berman is that they suggest the beginning of an awareness of the indefensibility of this position.

    Gil had a post about zero tolerance for moral lapses – and the RCA position is one of those moral lapses for which we should have zero tolerance.

    it is IMHO

  86. ” Rav Schachter and, according to some, Rav Elyashiv hold that harvesting organs from a brain dead patient is a safek retzicha”

    So is safek rechitza permitted or not??? Yes or no?

  87. It would seem that RSZA’s position would not apply in EY, nor to Jewish surgeons in Chutz l’Aretz.

  88. Gil – why the snide comments? Look up the latest edition of Nishmas Avraham – he explicitly talks about why it may be muttar to be gorem retzicha by a nachri as a justification for receiving organs. Unless you want to clearly promote such a position in public, and I promise you there are plenty of journalists waiting for an explanation of why Orthodox Jews take organs but rarely give them, and would be very intrigued to hear that it is related to a distinction between yisrael ve’ha’amim, I would advise you to keep your snark to yourself.

  89. Charlie Hall wrote:
    “So is safek rechitza permitted or not??? Yes or no?”

    Perhaps one is allowed to be the goreim (as a patient) but not (as a Jew) the surgeon.

  90. Strange that Rabbi Tendler didn’t sign – though he normally would not associate with many of the names on the list

  91. GIL:

    apropos your concerns, apparently the r. sacks doesn’t need robbie berman’s help to stir up the pot.

    http://www.vosizneias.com/73219/2011/01/11/london-doctors-criticize-chief-rabbis-edict-against-donor-cards

    this article indicates that the like the rca, the british chief rabbinate has engaged in a volte face with regards to brain stem death organ donation. i don’t think there is anything wrong with changing one’s opinion, particularly when confronted with new evidence, but what is the reason that previously held positions of the rca and the chief rabbinate are no longer considered apporpriate?

  92. That final paragraph was totally unnecessary in the statement. My description of it is entirely accurate.

  93. What’s immoral about saying that “it may be muttar to be gorem retzicha by a nachri,” as they are entitled to form their own definitions? In other words, they don’t consider it retzicha.

  94. Note the difference. The London doctors criticize but “respects the views of all religions”. They don’t call the chief rabbi’s decision immoral. His ruling, by the way, is consistent with that of previous chief rabbi, and the father of Jewish bioethics, R. Immanuel Jakobowitz.

  95. No Gil – the final paragraph is exactly the point. You are being evasive. Do you believe that it is muttar to cause the murder of a nachri for the sake of harvesting their organs? Those who forbid donating organs but advocate receiving them as public policy clearly do. If you do, then I don’t see why you refuse to recognise that this can legitimately be conceived as immoral. If you don’t, then you are de facto agreeing with the statement of these rabbis.

  96. Gentiles are not obligated to follow Jewish law. If they want to donate their organs, they do not have to follow our definitions of life and death. According to R. Shlomo Zalman Auerbach, a Jew in the US may accept organs from anyone — Jew or gentile.

  97. If you are instructing the doctor to do it, and it would not be done if it were not for you, then the retzicha is your responsibility. It’s irrelevant how they define it – you can’t do retzicha as WE define it. And it’s a massive chiddush to start saying that they can define retizcha away anyway, especially when a yehudi is involved. How do you even know the organ donor is a nachri? Are you going to start checking his yichus before you do it? Start relying on kol de-parish?

  98. >The London doctors criticize but “respects the views of all religions”. They don’t call the chief rabbi’s decision immoral.

    The London doctors are just being PC, and we are insiders and brothers and have a right to struggle with each other and call it like we see it.

  99. Anonymous: I appreciate your willingness to pasken in an anonymous blog comment, but I respect R. Shlomo Zalman’s pesakim even more. On matters of this magnitude of complexity, I can’t see how we can avoid deferring to great scholars.

  100. We are obligated not to murder them according to our definition of life. If we hold that a brain dead person is alive, and we instruct a doctor to kill them for their organs, then we are responsible for murdering them. You seem to be laboring under the misconception that someone justs ‘donates’ their organs; this is simply not the case. Rather if there is a match, and the recipient DECIDES to go ahead, the organs are removed form the donor, thus (if you don’t hold of brain death) murdering the donor in the process.

  101. Guest: Once you go to the media, you are speaking to the whole world and not just arguing internally. And even internally, we show respect to Gedolei Torah like R. Shlomo Zalman.

  102. Anonymous: Do you think it is possible that R. Shlomo Zalman was aware of such issues and that he has a reasoning which he believes avoids such problems? You realize, I am sure, that he was well advised by expert doctors who are themselves famous medical ethicists. Didn’t R. Tendler himself discuss this issue with R. Shlomo Zalman? Not to mention Dr. Steinberg and Dr. Abraham.

  103. GIL:

    “On matters of this magnitude of complexity, I can’t see how we can avoid deferring to great scholars.”

    but that’s not what the RCA has done. some RCA members may be great pulpit rabbis, but they aren’t all great scholars.* yet the RCA is leaving it up to each one of these non-scholars to decide for themselves?

    *this is in no way intended as an insult. they may be great professional rabbis, which in some capacities is more important than being a great rabbinic scholar.

  104. As R. Student has correctly emphasized, RSZA was a saint. R’ Mor and R’ Shlomo D have explained his ruling in a manner which is perfectly logical (-kudos on the nice analogy there with havdalah over chadash beer), assuming that the Noahide Code empowers the Noahide legislature/judiciary to control the definition of homicide. The problem – as R’ Anonymous has cogently noted – is that RMF was uncertain about that thesis which RSZA took for granted; RMF saw this as a possible explanation to the Rabbi Chananya ben Teradyon episode, but was unable to endorse it definitively. The distinguished rabbinic signatories are saying that are unable to be makhri’a between RMF and RSZA. I humbly agree with them (not that they need by agreement).
    It’s no insult to RSZA to say we don’t trust his “lomdut” 100%; as RMF writes in IM YD 3:88, it is an honour to the Chazon Ish to cite his words posthumously and to disagree with Chazon Ish when there is legitimate evidence to disagree.] And since we can’t be makhri’a between RMF and RSZA, no one (neither Noahide nor Jew) should register for organs that depend upon brain death (neither in Israel nor in the Diaspora). We are not expected to know the answer to every question: “the Holy One, blessed be He, does not make impossible demands of his creatures” (Avodah Zarah 3a).

  105. I think you’re right and the RCA should have given a non-binding pesak. But that wasn’t possible for political reasons. The next best things is to give information on the different pesakim available.

  106. It seems to be the argument that Jews can accept, but not donate is past the slippery slope that lead to Rabbi Lior’s bizarre comments as reported in ynet.

    In any case, I haven’t heard a response from the proponents to my tachlis question about the impact on Jews in Israel.

    For those who believe it is halachically acceptable to accept, but not donate: le’ma’aseh, what does that mean for Israel where Jews constitute 75% of the population? The (illegal) int’l black market? Organ harvesting shlichim, perhaps?

  107. I don’t believe R. Shlomo Zalman allows accepting organs in Israel.

  108. I am glad to see the statement of principals from this group of learned Rabbis. We need more Rabbi’s like this who recognize that Judaism is a global universal religion and not a backwater sect that is only interested in taking care of its own. This fear and loathing of “the Goyim” and a debate over whose life is worth more is an affront to our shared humanity and to Tzelem elohim.

  109. >Guest: Once you go to the media, you are speaking to the whole world and not just arguing internally. And even internally, we show respect to Gedolei Torah like R. Shlomo Zalman.

    At least grant that the doctors are only being PC. We may have an obligation to be smart, and even tactful, and even respectful – but not PC.

  110. As this will certainly be picked up by the mainstream press (not to mention the anti-Semites chomping at the bit), let’s do ourselves a favor and make sure we have the soundbite explanation correct. So, stripping away the pilpul, to summarize the position being argued, then….

    The claim is that it is halachically required (and morally acceptable) for Jews to not donate organs at the declaration of brain death because there is a doubt that the prospective donor is dead according to Jewish law; but, it is halachically required (and morally acceptable) for a Jew to accept an organ donation because of the primacy of saving a life.

    If this soundbite is a not a factual representation of the proponent’s argument, please re-quote it with corrections.

  111. IH. That’s the argument. It only makes sense if you make the clear statement that a Jewish persons life is worth more than a gentiles life since if you believe that brain death does not equal death, you are killing the gentile in order to harvest their organs. In short, the twisted logic of this position requires you to believe that you are killing a lesser being to save the life of a greater being. This is a sick perversion of Torah in my view and must be denounced as grossly immoral.

  112. In response to: “For those who believe it is halachically acceptable to accept, but not donate: le’ma’aseh, what does that mean for Israel where Jews constitute 75% of the population? The (illegal) int’l black market? Organ harvesting shlichim, perhaps?”

    Rabbi Student responds: “I don’t believe R. Shlomo Zalman allows accepting organs in Israel.”

    And, Rabbi Student, is that the prevailing opinion of the proponents in the current debate – that Israeli Jews should not accept organ transplants in Israel?

    This sounds like tantamount halachic permission to engage in the international black market for organ transplants (for those Israelis wealthy enough). As I recall, there were some scandals around this about 10 years ago.

  113. Guest: They are being polite and respectful, which is how adults are supposed to carry out important discussions.

    IH: No, that isn’t right, and I am not going to formulate a soundbite because that is something for the experts to do. I encourage members of the media to contact prominent rabbis and ethicists like Rabbi J. David Bleich and Dr. Eddie Reichman for balanced views.

    Nobody I know is promoting a black market for organs. The media publicized a year or so ago that R. Elyashiv forbade it, although that was not a new ruling. Although, I seem to recall that the head of HODS was on YouTube saying he is OK with taking an organ from the black market. I think Heshy Fried of FrumSatire took the uncharacteristically serious video.

  114. You and I both know what Dr. Abraham, in Nishmas Avraham, states. I can’t imagine that he heard something from R. Shlomo Zalmen that he doesn’t bring there. Let me know if you don’t feel ethically uncomfortable with some of his arguments. The fact that a great posek has said something does not mean we can’t feel ethically uneasy with it. Would you feel uneasy tatooing a mamzer’s forehead(Zera Emes 3:111)? I presume you wouldn’t have a problem with saying that R. Menashe Klein has immoral pesakim – so why the hue and cry when it is someone else?

  115. Artscrawl, to be fair, it is a more sophisticated version of what you wrote. It is that non-Jews are entitled to make up their own decision regarding when death occurs.

    This is sophistry, of course, but my interest is in reflecting back what I am hearing.

    ולא עוד שמקדימין דברי בית שמאי לדבריהן

  116. Anonymous: First of all, I do NOT know what Nishmas Avraham says. I’m not sure why you assume that I have read all the literature on this subject. I have not and am not an expert. If you are reading these comments and think I am, you are mistaken. Certain people have evidently scared the experts from talking because of what they might be called in the newspapers. I am working on changing that but a pronouncement by 100 rabbis that anyone who disagrees with them is immoral doesn’t help. It closes discussion, which might be for the best. Perhaps this is the point of schism within Modern Orthodoxy.

    What about my description is incorrect: “100 rabbis call ruling by R. Shlomo Zalman Auerbach morally untenable”

  117. “Nobody I know is promoting a black market for organs”

    Of course they wouldn’t admit as such, but if: a) organ transplants are a proven way to save lives; but, b) Jews in Israel may not receive transplants there; then, c) Jews in Israel will go elsewhere to receive a transplant and save their own lives; and, d) since organs are not legitimately available to Israeli Jews in other countries; then, e) Israeli Jews who can afford it must rely on the international black market if they can afford to do so.

    BTW: I have a family member who had to do this. Ein Yodeah k’Baal Nisayon!

  118. In hachi nami on both. You’re right.
    The child in me thinks a schism would be really exciting. Perhaps hirhurim discussions about rabbot leading kabolas shabbos will be quoted by historians in 200 years time.

  119. IH: That’s like saying that Ronald Reagan was in favor of a black market for drugs. It is simply a lie.

    What you mean to say is that their policy will lead to an increased black market. That may or may not be true but they will say that they cannot change their position based on that consideration.

  120. This summary in Wikipedia is correct:

    “According to organ trade expert Nancy Scheper-Hughes of Organ Watch (in 2001), Israel had become a “pariah” in the organ transplant world. The lack of donations due to Jewish custom heightened the disparity between the supply and demand of organs. This led to the popularity of “transplant tourism” in which patients in need of organs travel to medical centres abroad to receive organs.[11] Prior to the 2008 law prohibiting it, some Israeli organ brokers advertised on the radio and in newspapers. Kidneys, which are the most traded organ, may fetch up to $150,000 for brokers who usually pay the donors far less.[10]”

    http://en.wikipedia.org/wiki/Organ_transplantation_in_Israel

  121. And by the way, while Kupat Cholim would not pay for the black market transplant, they did pay for the post-transplant care (required for life).

  122. Here’s the Robby Berman video in favor of organ trafficking: http://www.youtube.com/watch?v=pipM7mVhPn8&NR=1

  123. Here ar ethe parts of the 100 rabbis declaration that bothered me:

    1) They declare that brain stem dead patients can be declared dead and have their organs harvested only under strict halachic supervision and guidance in points #1 and #3. However, they provide or suggest no such system that could possibly supervise or guide this process. So what is accomplished? This is symbolism over substance. There is no way in the US to go ahead and ensure “Hashgacha” in every hospital to make sure that Jewish patients are treated in this manner.

    2) In their point #2, they recognize both opinions on the matter as being legit. Eilu V’Eilu. Having said their position is legit, they take another step and declare that b/c their position is legit, all Jews should be brought to realize how superior that position is over the other & ought to ascribe to it. Is that Eilu V’Eilu at all? Eilu V’Eilu means grant both sides legitimacy & let all live in peace with one another.

    3) This group then goes on to declare that anyone who doesn’t see things as they do & still wants to receive an organ when they are in mortal danger is not moral & this position must be absolutely rejected. Wow. Those are some fighting words if I’ve ever heard them. See volume I of Nishmas Avraham where R. F. Cohen wrote to RSZA and RYSE in Israel about this matter (for cases here in the USA). Both responded that this did not present a moral contradiction. For every donor there are far too many potential recipients in line. When one figures in all of the US, there is more than one match for each potential donor. As such, that donor’s organ will be harvested – regardless of wether or not one Jewish name is on that list. Now that the organ will be harvested, should one who needs it refuse something that could save his/her life? They did not cause its removal. The donor decided to do that on his/her own. The recipient couldn’t be a donor b/c he/she understands Halacha acc. to those who either reject brain stem death or are in doubt about whether it can determine when death has occured acc. to Halacha. Does that mean that potential donor is now doomed to die? How could this rabbinic group condemn anyone who disagrees with their understanding of when a person has died to certain death?

    This is very strange – especially when it is coming from those who speak about being accepting of all . . .

  124. Hirhurim
    Gentiles are not obligated to follow Jewish law. If they want to donate their organs, they do not have to follow our definitions of life and death. According to R. Shlomo Zalman Auerbach, a Jew in the US may accept organs from anyone — Jew or gentile.

    What this post does not realize is that the donors (and their families) are real people – who are in many ways the heroes of the transplant process. When they donate – they expect (and the community that supports transplants tries to give) recognition for their contribution. They do not have control over the recipient – but knowing that the recipient views them as murderers by his views – even though he will magnamiously allow them to murder their family for his sake – will reduce the number of donors – and violates the (unwritten) contract of the transplant community with the donor and his family.

    The fact that one can come up with some halachic kludge to allow receiving does not change this underlying dynamic – that a community that views donation as murder (even allowable murder…) has no right to request that it receive it. the difficulty in understanding what seems a fairly straightforward issue reflects, IMHO, what is best described as a parasitic trend – a view that one’s needs are ones that the general community has to provide for – rather than focusing on mutual obligations.

  125. This looks to me like a case where people rushed to sign b/c they were so caught up with emotions & didn’t carefully weigh or consider all that they were actually signing.

    I’m willing to bet that other will say they only signed b/c they saw that other who they trust signed & that was good enough for them.

    One second, does that sound familiar?

    Will we hear anyone asking whether or not these same people have criticized others in the past for doing just that?

    Hmmm . . .

  126. Where is the moral outrage towards those who never show up to blood drives yet get blood when they are hospitalized?

  127. “Gentiles are not obligated to follow Jewish law. If they want to donate their organs, they do not have to follow our definitions of life and death.”

    As IH pointed out…this is mere sophistry. Jewish law says that gentiles are obligated to follow Noahide law which prohibits murder. Sorry no loophole there.

  128. DAvid,
    The social contract, as well as the supply and demand issues, are different for blood donation and for organs.

  129. Gil,
    What you don’t seem to realize is that (at least for your interlocutors, though I agree with them and think that what I am about to say is simply true), moral debates aren’t subject to appeals to authority. It is not like halacha. Simply responding that RSZA said it’s ok is not an adequate response to the statement that something in immoral. It may give you the confidence that there is an argument for that side, but you have to present it.

  130. >Where is the moral outrage towards those who never show up to blood drives yet get blood when they are hospitalized?

    People who don’t bother to donate blood aren’t moral heroes, but they don’t argue that donating blood is a crime, yet will benefit from it.

  131. R’ David,

    You are 100% correct. Everyone who is capable of donating blood must donate blood. [I am admonishing myself here; I will make sure to get to a blood clinic here in Montreal at the very next opportunity.] Yi’yasher kocham to the righteous HODS organization for publicizing the mitzvah of lifesaving tissue donation, and certainly tissue that can be donated according to all opinions (like blood and bone barrow) must be donated to save a life.

    It is very important that Orthodox Jewry (which, B”H, sets the moral standard for humanity, for we are specially chosen by HKB”H to do so) be recognized as fulfilling “sheli shelakh vishelkha shelakh”. We must give more than we take. Maybe we should open more Orthodox Jewish medical schools and Orthodox Jewish hospitals, to flood the market with as much healthcare as possible, to demonstrate that we are a light unto the nations. [If we can have a yeshiva on every block, why not also a hospital on every block?] Maybe future semikhah ordination should only be granted to those who also have a concurrent M.D. degree, etc., whatever it takes to dedicate more of our resources to the grandiose mitzvah of medical piku’ach nefesh. [I would be happy to lose my semikhah and be ordered back to school to become a physician.] Thus, even if we assume – because of safek piku’ach nefesh – that brain dead patients are possibly alive, and therefore that no one should ever register for organs that depend upon brain death, there is still much good work that we Orthodox Jews can do to enrich and enhance the practice of healthcare for all humankind.

  132. What about my description is incorrect: “100 rabbis call ruling by R. Shlomo Zalman Auerbach morally untenable”?

    Perhaps the fact that the petition you link to does not mention R. Shlomo Zalman Auerbach? Would that not make it misleading to state that rabbis call a ruling of his anything?

    I guess this is the level of discourse now, that even the so-called moderates write headlines in the most incendiary way possible? I remember when many warned you about the dangers of editorializing in headlines — now we see the poisonous fruits of this corruption. For shame!

  133. RolledOver: You mean because they were polite enough not to mention him by name?

    I’m sorry but calling the position of a saintly rabbi “morally untenable” is incendiary and really just the poisonous fruits of this corruption. I am embarrassed of every single rabbi who signed the statement because they could not find a better way to voice disagreement. It’s really just shocking.

  134. Shouldn’t hospitals forbid people to receive organs if they refuse to donate? Would the opponents of brain death be OK with this?

  135. No it’s not incendiary. If I say it is primitive to not allow women to drive, is that incendiary just because R. Shmuel Vozner and R. Nissim Karelitz, poskim of no small stature, forbid it? Can we not say that it is morally reprehensible to state that ‘it is worse to love a nachri to to hate a yisrael’, a statement made by the previous Sanzer Rebbe z’l (it’s in the sefer of his Chumash Rashi Shiurim, ‘Shefa Chaim’), again a gadol of no small stature? There are many, many things in teshuvos of contemporary poskim that all within the MO camp (and many to the right of it) will justly feel to be ‘morally untenable’ – I don’t need to start enumerating them all. Your reducing this issue to ad hominem’s just lowers the tone of the debate for no valid reason.

  136. >I’m sorry but calling the position of a saintly rabbi “morally untenable

    This apply to Yaavetz and pilagshim too? Or was he not “saintly”?

  137. Gil,
    “Shocking”? Really? They used very mild language to express the fact that they think that there is a significant moral issue here. How would you have them phrase their position in a way that was not “shocking”?

  138. Those who treat great rabbanim with respect differ with them in gentle terms, speaking deferentially rather than implying insults to them. And yes, that applies to all of the above examples.

    They should not have included that paragraph at all. If they needed to, they should have disagreed, not called it morally untenable.

    I understand that be-makom chillul Hashem ein cholin kavod la-rav. But here the insult was entirely unnecessary!

  139. “Those who treat great rabbanim with respect differ with them in gentle terms”

    There are great rabbanim on that list. So presumably they should not be castigated for saying something which they did not in fact say?

  140. Meir Shinnar and Charlie Hall-The real issue remains that the medical and health care worlds have adopted the Harvard criteria and brain death, while Poskim of the highest caliber are hardly in agreement as to whether the same can be reconciled with the criteria set forth in the Talmud, which were accepted and discussed by the Rishonim and Acharonim for centuries prior to the Harvard criteria. The real issue is not that of receiving, giving or harvesting organs, but rather whether a Jew may participate in what may very well be prohibited conduct that borders on Rzticha to save another person’s life. WADR to the 100 rabbis who signed on the petition, I wonder why the views of RSZA are not accorded more respect than what is set forth therein. Merely calling an opponent’s perspective immoral does not render it so automatically.

  141. I’m not going to debate who is or isn’t great in this comments section. All I will say is that I assume everyone here agrees that R. Shlomo Zalman Auerbach was. If I am wrong, then we need not continue the discussion. Either way, actually, we need not continue. I can’t make myself any clearer.

  142. Gil,
    If you think that the last paragraph was unnecessary, then you really don’t understand what is at stake here, at least for those who disagree with you on this matter.

  143. “You and I both know what Dr. Abraham, in Nishmas Avraham, states. I can’t imagine that he heard something from R. Shlomo Zalmen that he doesn’t bring there. Let me know if you don’t feel ethically uncomfortable with some of his arguments.”

    I have heard Dr. Abraham – his viewpoints are often inconsistent with those that were standard at YU decades ago-maybe its being an Israeli rather than an American-but both Rabbis Bleich and Tendler are the models of tolerance of other Orthodox opinions compared to Dr. Abraham

  144. “The real issue remains that the medical and health care worlds have adopted the Harvard criteria and brain death, while Poskim of the highest caliber are hardly in agreement as to whether the same can be reconciled with the criteria set forth in the Talmud, which were accepted and discussed by the Rishonim and Acharonim for centuries prior to the Harvard criteria. The real issue is not that of receiving, giving or harvesting organs, but rather whether a Jew may participate in what may very well be prohibited conduct that borders on Rzticha to save another person’s life”
    A serious question.

  145. Hirhurim on January 12, 2011 at 1:37 pm
    RolledOver: You mean because they were polite enough not to mention him by name?

    “I’m sorry but calling the position of a saintly rabbi “morally untenable” is incendiary and really just the poisonous fruits of this corruption. I am embarrassed of every single rabbi who signed the statement because they could not find a better way to voice disagreement. It’s really just shocking.”

    If they believe the position is morally untenable they should state so. My personal experience is not with positions of RSZA-but positions of Dr. Abraham-assuming arguendo that Dr. Abrahams positions represent RSZA in other matters I have felt them to be those that are ones that got me furious.

  146. Re article about sitting in front of bus
    A little more than a month ago-my wife and I were in Israel-we took an Egged Bus from the near kikar Shabbos to Neve Yakov. The bus is one which has men in front- women in back-going there I was surprised that women entered the middle and didn’t either pay the driver of have a kartisia punched. I was told by the people(Chareidim) we were visiting that there is a punch in the middle for women to punch the tickets. My wife was satisfied by that answer-I decided to sit near the middle entrance and check the percentage of the women punching their kartissia-my estimate including double punches was 10-15%. I hope I had a non typical bus-but I wonder.
    But no one insulted my wife for not sitting in the back of the bus.

  147. I do not agree that the specific comments were made against the position of HaRav Shlomo Zalman.
    They were discussing a general point of the inequality of being users and not givers.

  148. Gil, when you’ve acted like this before you’ve been obstinate and refused to ever admit that you may be wrong, so I’m probably just shouting down the wind here, but I must add my name to the list of those who felt your article title (especially in a post that purports to report news, not opinion) is way over top the in its snarkiness. Be a good Jew and admit you may be wrong.

  149. You mean that since you disagree with me, I should change my mind? Does that ever work in reverse?

  150. >“Those who treat great rabbanim with respect differ with them in gentle terms”

    Except great rabbanim themselves, right? They don’t differ gently when they feel the stakes are high.

  151. (1) ok, let’s say big rabbi X says you can use the eruv in Metropolis. A group of other rabbis, some big and some small, sign a statement that it is “mechalel shabbos befarhesya” to use said eruv. That strikes me as within the completely normal realm of halachic discourse.
    can you elaborate a distinction between the above case and the current issue?

    (2) note they did not say “immoral.” They said untenable, meaning impossible to defend in moral terms. Appeals to Rav SZA’s character rather than to an actual moral defense only support that claim. I actually think “we define death as X, but we support your right to define it otherwise for your own people” _is_ a reasonable moral defense, so in that sense i disagree with “untenable.” as soon as one believes that it is just as likely to be retzicha for nonjews as it is for jews, though, in my view accepting-but-not-donating becomes impossible to defend in general moral terms.

    (3) my real issue with the statement was that at least half of the rabbis listed are of no stature to “strongly recommend” anything to __other rabbis_. They could “hope for” or “support” the decision to allow donation, or they could “recommend” donation to their congregants, but they are no more qualified to “recommend” courses of action to other, often more senior, rabbis than i am. maybe i’m being pedantic, but it really struck the wrong chord with me to see several of my peers and friends – ordained rabbis often for less than 5 years – place themselves on equal footing with serious talmidei chachamim (as if all “rabbis and rashei yeshiva” are equal) in a weighty matter of psak. (i sort of wonder about the genesis of this statement and the signatory list, actually – it seems like it was written by/for one group and then “opened up” to a lot of “me toos” who don’t really belong.)

  152. Let’s get back to the substance of the debate, please.

    The primary issue is that we have an existence proof that the consequences of halachicaly prohibiting organ donations leads to immoral and illegal activity in which the Israeli rabbinate was complicit by commission or omission:

    “According to organ trade expert Nancy Scheper-Hughes of Organ Watch (in 2001), Israel had become a “pariah” in the organ transplant world. The lack of donations due to Jewish custom heightened the disparity between the supply and demand of organs. This led to the popularity of “transplant tourism” in which patients in need of organs travel to medical centres abroad to receive organs.[11] Prior to the 2008 law prohibiting it, some Israeli organ brokers advertised on the radio and in newspapers. Kidneys, which are the most traded organ, may fetch up to $150,000 for brokers who usually pay the donors far less.[10]”

    The logic chain is: a) organ transplants are a proven way to save lives; but, b) Jews in Israel may not receive transplants there; then, c) Jews in Israel will go elsewhere to receive a transplant and save their own lives; and, d) since organs are not legitimately available to Israeli Jews in other countries; then, e) Israeli Jews who can afford it must rely on the international black market. The fact remains that while Kupat Cholim would not pay for the black market transplant, they did (and do) pay for the post-transplant care that is required for life.

    The secondary issue is that a position that can be legitimately summarized as: ~” it is halachically required (and morally acceptable) for Jews to not donate organs at the declaration of brain death because there is a doubt that the prospective donor is dead according to Jewish law; but, it is halachically required (and morally acceptable) for a Jew to accept an organ donation because of the primacy of saving a life.”~ provides succor to the revival of the blood libel amongst anti-Semites in our time.

  153. “The real issue remains that the medical and health care worlds have adopted the Harvard criteria and brain death, while Poskim of the highest caliber are hardly in agreement as to whether the same can be reconciled with the criteria set forth in the Talmud, which were accepted and discussed by the Rishonim and Acharonim for centuries prior to the Harvard criteria.”

    Of course the Talmud and Rishonim and Achronim had a definition of death other than brain death based on the Harvard criteria. They didn’t know what we know about the brain! They based the definition on what they knew. But with respect to the workings of the body and especially the brain, we know a tremendous amount more than they did. So why should critical halachot of life and death (literally) continue to be based on primitive scientific knowledge? To me that’s the “real issue.”

  154. Gil – about the “insult” to RSZA – what about the insult to Rav Moshe Feinstein and to Rav Moshe Tendler by those who believe that they support murder, or that Rav Tendler lies about what Rav Moshe held? or does it only cut one way?
    In the end, those who hold that brain death is not death are insulting those who do believe it as murder, and those who hold it is impermissible to receive and not give hold the others are immoral
    However, one point about RSZA’s tshuva- in his tshuva to Rav Coehna) He seems to hold that it is probably correct that brain death is death, but there is a safek b) It is clear that he is not aware of the metziut of what actually happens abroad – nor the response of the general community to publicity of his psak – and, as I said, there is a difference between an individual doing it and the community endorsing it – and his psak is far more to the community

  155. Isn’t that precisely what Dr. Joshua Kunin and R. Dr. Eddie Reichman debated in Tradition in Winter 2004? Dr. Kunin argued that even brain dead patients still have brain function and therefore cannot be called dead. Dr. Reichman responded that R. Moshe and the Rabbanut paskened based on their understanding of the Gemara that as long as breathing has stopped a patient is dead. In other words, Dr. Reichman saved the pesakim of R. Moshe and the Rabbanut by saying that they are working off the Gemara, even though science disagrees with them.

    Or am I misunderstanding this? I admit that I am out of my league in these discussions.

  156. Doron Beckerman

    Dr. Shinnar,

    Why are you inventing an insult? According to RSZA, we just don’t know for sure whether brain death is death. I respect another’s right, as one who is not bound by my Halachic jurisprudence, to decide that it is, and lovingly embrace the donor and his family, though my religious beliefs preclude me from participating in what should be considered, by legal standards the gentile donor has a right to abide by, a noble act?

  157. STEVE:

    “Shouldn’t hospitals forbid people to receive organs if they refuse to donate? Would the opponents of brain death be OK with this?”

    there is a new law in israel that gives precedence for organs to those who’ve signed organ donor cards themselves. [Gil: is this moral or halakhically sound?]

    MYCROFT:

    “the percentage of the women punching their kartissia-my estimate including double punches was 10-15%.”

    perhaps this is their subtle way of protesting having to sit in the back 🙂

  158. Joseph Kaplan –

    I don’t think that that is the real issue. The validity of brain death isn’t flatly negated by any gemara. It is not addressed at all since it was not a metzius then. The question here is one of application. It seems that there is quite a large number of poskim, including RSZ, RYSE, and RHS, who see the logic of brain death, but do not feel comfortable declaring it death since no explicit gemara does so. Nobody is saying that the gemara says no brain death – they are just saying that they do not have the authority to halachically legislate a new form of death.

    Hirhurim –
    I am not familiar with that debate, but it seems to me that Dr. Kunin’s assumption than ANY brain function is a sign of life according to halacha is very lav davka. I think that RM and the Rabbanut can be “saved” much more easily – simply by saying that the gemara never equates minimal brain function with life, and that since modern scientists (see Dr. Stadlan’s post) don’t do so either, there is no reason to add to the gemara’s criteria for identifying death.
    As far as the RSZA insult is concerned, I agree with emma – the main thing that bothers me here is the sheer chutzpa.
    Somebody in one of the earlier comments mentioned that “when you think something is chillul shabbos, you say it is chillul shabbos. When you think something is morally untenable you call it like it is.” Basically, call a spade a spade.
    Sometimes calling a spade a spade is simply not derech eretz and proper behavior for a Jew. This can best be learned from the actions of the tzadik R. Shlomo Zalman Auerbach. Before issuing a counter psak to R. Moshe’s tshuva about a doctor being allowed to drive home on shabbos, RSZ first wrote to him to ask his permission to disagree with him in public. He then prefaced his teshuva by saying how great R. Moshe is, etc., and then saying – in my opinion….
    Compare this to the actions of the “100 rabbis” who instead of couching their disagreement in respectful terms, say that the other approach must be “unequivocally rejected by Jews at the individual and communal level”! (even Meir Shinnar would have worded it more conservatively) The behavior of this group is less like that of the malach RSZ and more like that of the self-righteous chassidic hooligans who plagued R. Moshe after his artificial insemination rulings.

  159. I think the point is this. You cannot have your cake and eat it too. If the person is not considered dead according to the halacha, he is by definition alive.

    Jews cannot benefit from saving a life by taking another life.

    The laws of pikuach nefesh apply equally in saving the lives of a Jew or a Gentile, since a Gentile is just as much God’s creation as a Jew. If one must choose between saving a Jew or a Gentile, and can only save one, the one who is more likely to survive given the circumstances must be saved. This argues in favor of maintaining that brain death is death since the person receiving the transplant is more likely to survive.

  160. ” instead of couching their disagreement in respectful terms, say that the other approach must be “unequivocally rejected by Jews at the individual and communal level”! ”

    Would that only be applied right to left, as expected of left to right…

  161. In this week’s *Neurology*:

    http://www.neurology.org/content/76/2/119.abstract

    If you want to read the entire article you have to pay for it as it is copyrighted.

  162. R’ Artscrawl,
    You are absolutely correct: in a triage determination, we must grant higher priority to the patient more likely to survive. (Shulchan Shelomoh, Erkei Refu’ah II, p. 14) So, for example, when there are two equally endangered patients before us, one who has neurological function (and therefore is definitively alive according to Halakhah) and one who is completely brain dead (and therefore is – at least in Shalom Spira’s opinion – doubtfully alive according to Halakhah), we treat the patient with neurological function first. At the same time, triage considerations only tell us in which patient treatment should be initiated first. Triage considerations do not permit us to kill (or even doubtfully kill) one to save the other, as R’ Joe commented yesterday at 5:33 p.m., and as explored in R. Bleich’s recent Tradition article “Sacrificing the Few to Save the Many”.

  163. “At the same time, triage considerations only tell us in which patient treatment should be initiated first. Triage considerations do not permit us to kill (or even doubtfully kill) one to save the other”

    I absolutely agree with your analysis. I’m merely pointing out that that by accepting that it is ok to accept a gentile organ while not allowing a Jewish donation one is making exactly the same kind of triage decision.

  164. This past summer, a physician in Israel asked Rav Elyashiv whether he could escort a patient to China for purposes of receiving an organ transplant. In China, many organs are removed from prisoners who are members of Falun Gong , which at one point had over 70 million adherents and which the government characterizes as an illegal sect. In some cases, the organs are removed while the prisoner is still alive, e.g., for kidney transplants or skin grafts, though some of the involuntary donors probably do not survive for long thereafter. In other cases, prisoners are executed and their organs harvested.

    Rav Elyashiv ruled that the physician may not facilitate such a transplant, because it is a chilul Hashem (desecration of God’s name).
    =================================
    If this report is correct, could one conclude that encouraging the murdering of someone (under Jewish law) does not rise to the level of chillul hashem unless there is an additional factor(since iirc R’YSE was quoted by someone here as a source for it being permissible to accept organs)
    KT

  165. No one can’t. Encouraging murder is always always a chillul Hashem. R. Elyashiv doesn’t unequivocally consider organ harvesting to be murder! Why is that so difficult to understand? He holds it to be a safek and probably leans towards the meikel position in theory, but in practice he is to conservative to give the go ahead.

  166. R’ Artscrawl,

    Thank you for the kind words. Yes, I agree with you that just as it is forbidden for a family to allow a brain dead loved one to donate an organ, so too is it forbidden to register for an organ.

    It is true, as RMDT testifies on the HODS website, that RMDT’s Monsey neighbour (who needed a lung transplant or would die) asked the Lubavitcher Rebbe what to do, and the Lubavitcher Rebbe sent the neighbour to RMF, and RMF permitted registering for an organ, thereby saving the life of RMDT’s neighbour. But that does not set a template for eternity. RMF’s pesak halakhah was similar to that of Rabbi Eliezer in Shabbat 130a when he told his townspeople to override Shabbat for the preparatory steps to a circumcision. Rabbi Eliezer was a tzaddik gammur, and his townspeople were rewarded for listening to him. But as soon as people were apprised of Rabbi Akiva’s countervailing and more authoritative legal analysis, the townspeople had to stop overriding Shabbat for the preparatory steps to a circumcision.
    The same is true here: there was once a time that people were allowed to register for organs (and it was indeed a mitzvah to do so, apropos piku’ach nefesh), relying on (1) RMF, or (2) RSZA or (lihavdil bein chaim lichaim) (3) R. Eliashiv, because the analysis they offered was the best available. [Respectively, their positions were/are that (1) brain death is definitely death, (2) the laws of homicide are different for Noahides, (3) geram retzichah is permitted for a gossess bidei adam or treifah.] That time has passed, however [-since the certainty of all three positions has been soundly refuted on this website] and no one may register anymore, because it is geram safek retzichah to do so.

    I suppose, though, that reverence for Moreinu ViRabbeinu R. Eliashiv would dictate that this conclusion should be confirmed in conversation with him. I have no doubt that the RCA possesses the talent and the resources to orchestrate such a conversation, in the spirit that “a conference of the righteous is beneficial for them and beneficial for the universe” (as per Sanhedrin 71b).

  167. Just finished a biography about Einstein who liked to do mind experiments. So let me try one (I’m NOT, in any way, comparing myself to him. :-))

    Imagine a society whose philosophers, doctors and legislators determined, in their judgment after long and hard consideration, that anyone over the age of 70 was legally considered dead. Can we, who do not consider that dead and, indeed, deem killing someone over the age of 70 who is walking around alive, accept a heart transplant from such a person whose heart was taken from him while it was beating, he was breathing and his brain was functioning? Any moral problem in that?

  168. Incidentally, has the Rabbanut Rashit disclaimed its 1986 approval of the “brain death” criteria for organ transplantation?

  169. MiMedinat HaYam

    the list (at least the american side) has few, if any, real communal leaders (RAW and RMA (but why does he sign himself with an org that seems suspect?) and R riskin are the few that come to mind). (it seems RGDS and RMT declined to sign.)

    at least use some real experienced rabbonim. not those with a chip on their shoulder.

    as for the israeli side, i assume they are similar. only one name there impresses me, and i would have expected that from him.

    and if you want to impress RSZA, this is not the way to do it. just “round[ing] up the usual suspects” wont help.

    (of course, few of his “crowd” would dare come out with such a public statement.)

  170. Glatt some questions

    Where is the moral outrage towards those who never show up to blood drives yet get blood when they are hospitalized?
    ——————————————
    Very different. The people who aren’t giving blood are doing so because of fear or laziness. They aren’t objecting to giving blood on religious grounds, like those who refuse to donate organs.

  171. Glatt some questions

    I am curious…has anybody seen anything published by R. Willig or R. Schachter on why they feel receiving organs from a brain dead person is not murder when donating organs from a brain dead person is murder? Has anyone spoken to them about this subject? Have these Gedolei Torah spoken to transplant doctors, who would tell them that the organs of a brain dead person are harvested for transplant only when a specific match is found, making the connection between donor and recipient direct and specific? This is definitely not a case where a bunch of already harvested organs are being made available to those in need, and a recipient who matches an organ gets to take one. There is a very direct connection, which at least to my unsophisticated eyes clearly makes this a case of murder if you do not hold by brain death. I think everyone agrees that the practice is ethically repugnant, but I honestly believe that it is halachically problematic as well. What is the reason why our Gedolim would allow sucha practice?

  172. I would venture to say that the list of signatories is the usual suspects for a different reason. If this is a halachik issue with two equally valid sides in halacha then why are all the signatories (at least those whose names I recognize) affiliated with LWMO. I am curious what percentage are members of the IRF. What does the halachik definition of death have to do with LWMO?

  173. The comment from MiMedinat HaYam, and others that precede it, makes me wonder how much longer it will take for MO to finally bifurcate. With each debate such as this, it becomes evident that the RW will never recognize the validity of the LW and there is decreasing value in pretending their is unity.

    Is it just a matter of time before Rabbi Riskin et al. will not be allowed to speak at YU because “there is a line of Torah values that we cannot cross” quoting President Richard Joel?

  174. R’Mor,
    So are you saying encouraging safek murder isn’t chillul hashem?
    KT

  175. R’ Glatt Some Questions:

    Thank you for asking. Yes, RHS has addressed this on two occasions, both of them symposia where he spoke alongside his Rebbe RMDT. RMW addressed this in his recent lecture on Dec. 11, 2010.

    In the 1988 symposium, at the end of his lecture, RHS forbids registering for an organ “because – lima’aseh – I have to be there to get the organ over la’asiyatan” [i.e. before the recipient is doubtfully murdered, a linguistic play on the gemara in Pesachim 7b that for all mitzvot, one recites the blessing “over la’asiyatan”], and thus the registrant to receive the organ is guilty of safek geram retzichah.
    http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II

    In the 2006 symposium, in response to a question from the audience, RHS quotes “many Rabbanim” (without specifying) who permit registering for an organ, even though donating an organ is forbidden. In the latter instance, one assumes that RHS is referring to the lomdut of RSZA and R. Eliashiv, as well perhaps as the lomdut of R. Bleich (discussed in the “Brain Death in the News” forum, my comment at .
    http://www.yutorah.org/lectures/lecture.cfm/716089/Rabbi_Hershel_Schachter/Time_of_Death:_Cardiac_Death_in_Jewish_Law

    RMW addresses this tangentially in his recent lecture regarding Keri’at HaTorah for ladies. At 5:30-8:10 into the lecture, RMW confronts the fact that some have objected to the policy of not donating organs but yes accepting. Would it not be more logical to both donate and receive? RMW answers that we can never permit murder for policy reasons. He also adds that we should internalize the perspective that the concept of brain death was unheard of fifty years ago, and that this strengthens the case not to donate.
    http://www.yutorah.org/lectures/lecture.cfm/754168/Rabbi_Mordechai_I._Willig/Women_in_Halacha_#4_-_Kerias_HaTorah

    I believe that a careful analysis of these three recordings reveals that the normative Halakhah follows RHS’s approach in the 1988 symposium, i.e. that no one (neither Noahide nor Jew) may register for an organ, neither in the Diaspora nor in Israel. It may have taken us until 2011 to realize this (and hence we are not casting aspersions on the righteous people who behaved otherwise before 2011), but that’s the new normative halakhic reality.

  176. Sorry… I missed a reference there in the third paragraph… the lomdut of R. Bleich was discussed in the comment on Dec. 7, at 11:00 a.m. Thank you.

  177. Doron Beckerman on January 12, 2011 at 4:35 pm
    Dr. Shinnar,

    Why are you inventing an insult? According to RSZA, we just don’t know for sure whether brain death is death. I respect another’s right, as one who is not bound by my Halachic jurisprudence, to decide that it is, and lovingly embrace the donor and his family, though my religious beliefs preclude me from participating in what should be considered, by legal standards the gentile donor has a right to abide by, a noble act?

    It is clear that Rav Beckerman has never actually dealt with organ donors. the problem is that my religious beliefs throw a cloud – whether vadai murder or only possible murmur – on the acts of the donor – and therefore I am judging it as not a noble act – even if I don’t have the chutzpa to tell that to the family, and even praise them. Judge me by what I do, not what I say – and if I don’t give, I am telling what my real values are.

    ….

  178. R’ Rich –
    In a case where the “murder” would happen anyways – yes I am.
    R’ Kaplan
    As far as the Einstein question is concerned – why do you need to make up a pretend scenario? We live in a country which allows doctors to smash apart the brains of perfectly viable fetuses as they emerge from the womb – even when there is no danger to the mother. As I mentioned earlier in the comments section, I do not consider partial birth abortions (or euthanasia for that matter) to be ethically ambiguous areas. They are clearly wrong, and society clearly permits them (partial birth abortions) and that is not ok.
    RSZ said that goyim have the power to paskin in areas which truly are gray. Most things have been decided upon ages ago, but brain death without cardiovascular death is a new phenomenon – and they have unanimously accepted it as death. RSZA felt that Jewish poskim do not have the liberty to decide on such matters because we have the Torah. I just want to say that Rav Moshe’s approach speaks to me more (not that I have any standing to have any halachic opinion speak to me) and I am thinking about getting an organ donation card. But I really can’t get over the reactions people are having to RSZ’s psak. Do you want him to be intellectually dishonest for the sake of appeasing liberal Western consciences? I lose respect for people when I feel that they are doing that. The Torah is the Torah and can only be evaluated within its own framework.

  179. Although part of its framework involves looking at the scientific reality of course.

  180. “I believe that a careful analysis of these three recordings reveals that the normative Halakhah follows RHS’s approach in the 1988 symposium, i.e. that no one (neither Noahide nor Jew) may register for an organ, neither in the Diaspora nor in Israel. It may have taken us until 2011 to realize this (and hence we are not casting aspersions on the righteous people who behaved otherwise before 2011), but that’s the new normative halakhic reality.”

    The word “normative” is conditional on who makes the rules. So a more nuanced view is that political power has shifted within MO and in 2011 the RHS camp is asserting their values as “normative”.

    How long will it be before Rabbi Riskin et al. will not be allowed to speak at YU because “there is a line of Torah values that we cannot cross” quoting President Richard Joel?

  181. Joseph Kaplan wrote in part:

    “The RCA claimed to have written a legal memo but what they issued was a brief, and they still won’t admit it. That’s neither fair nor honest”

    The RCA set forth a position paper outlining the various Shitos on the issue. It was by no means a formal Teshuvah or Psak for its members. I would certainly view it more akin to a legal memo as opposed to a brief.

  182. Lawrence Kaplan

    Re the signatories: I am quite impresssed by some of the names. Not all are the “usual suspects.” Still, here I feel that less (fewer) would have been more.

  183. “It was by no means a formal Teshuvah or Psak for its members.”

    Agreed.

    “I would certainly view it more akin to a legal memo as opposed to a brief.”

    Disagree, strongly.

  184. Glatt Some Questions: Part of R. Shlomo Zalman’s calculus is that very often even if a specific Jews turns down the organ or is not listed as a potential recipient, someone else will receive it. Meaning, the donor will give organs regardless. That means the recipient is not causing the donor’s death because it would happen anyway. He believes this remove the issue of life iveir, at least on a biblical level (if I understand him correctly).

  185. Glatt some questions

    Glatt Some Questions: Part of R. Shlomo Zalman’s calculus is that very often even if a specific Jews turns down the organ or is not listed as a potential recipient, someone else will receive it. Meaning, the donor will give organs regardless. That means the recipient is not causing the donor’s death because it would happen anyway. He believes this remove the issue of life iveir, at least on a biblical level (if I understand him correctly).
    —————————————————
    It is not impossible that a recipient might be the only possible match for the donor, so to base a heter on the fact that the donor’s death will happen anyway–when in fact it’s happening directly because of the recipient being a match–seems very problematic to me and very troubling.

    I wish the current poskim who believe that brain stem death is not halachic death would speak to medical experts like Noam Stadlan, who might provide them with a better understanding of the complex medical issues involved. I think if they understood the science better, they would be more likely to rule in favor of brain death being halachic death. It’s not a coincidence that those folks who are very knowledgeable about both medicine and halacha (such as Rabbi Dr. Eddie Reichman, Rabbi Dr. Avraham Steinberg and Rabbi Dr. Moshe Tendler) hold by brain death as halachic death

  186. Just as a reality check: is there any commentor on the “no” side of this debate who has had a personal encounter with this issue in regard to a person for whom they would (chas ve’shalom) sit shiva?

  187. Glatt Some Questions: No one said that it is always one way. To my understanding, as kong as it is often that way it is sufficient.

    R. Shlomo Zalman was explicitly consulting with three doctors, one of whom I remember is Dr. Robert Shulman. Dr. Shulman was the one who corrected R. Tendler when the latter incorrectly announced in Tradition that R. Shlomo Zalman and the Tzitz Eliezer had changed their mind on this issue. R. Shlomo Zalman was also in close contact with Prof. Abraham S. Abraham.

  188. I agree with the majority opinion that there is absolutely nothing wrong with the wording of this psak.

  189. Rabbi Student: is it your view that a Rabbi who continued to pasken that brain death is halachic death is not normative? And, is that “a line of Torah values that we cannot cross”?

  190. is it your view that a Rabbi who continued to pasken that brain
    death is halachic death is not normative?

    That is not at all my view.

  191. Thank you. There were a lot of strong comments and I thought it worthwhile just to validate the nature of the debate.

  192. ” has the Rabbanut Rashit disclaimed its 1986 approval of the “brain death” criteria for organ transplantation?”

    Rav Amar reiterated that the brain death criterion is the halachic criterion in a real, highly publicized case just weeks ago.

  193. ” the organs of a brain dead person are harvested for transplant only when a specific match is found, making the connection between donor and recipient direct and specific? This is definitely not a case where a bunch of already harvested organs are being made available to those in need”

    Indeed because time is of the essence in organ transplants, an organ are not harvested until the specific recipient is ready.

    FWIW, the primary hospital affiliate of the Albert Einstein College of Medicine does a lot of organ transplants:

    http://www.montefiore.org/transplant/

    Here is an example of their procedure:

    “Transplant procedure

    To make sure that no more than four hours pass between harvesting the heart and transplant, the surgical team who removes the heart from the donor is in constant contact with the recipient team at Montefiore-Einstein Heart Center.

    While waiting for the heart to arrive, the recipient is prepared for surgery as quickly as possible. The patient is placed on a heart-lung machine, and upon arrival of the donor heart, the surgeons remove the recipient’s diseased heart, then prepare and implant the new heart.

    Following the 90-minute procedure, the patient is removed from the heart-lung machine. Once the heart function is stable, the patient is moved to intensive care unit for further care. ”

    And note also that there are NOT lots of hearts available:

    “Heart Transplant

    During heart transplantation a patient’s diseased heart is replaced with a healthy donor heart. In the United States, there are between 60,000 and 100,000 people who could benefit from a new heart. But due to an acutely limited supply, only 2,300–2,400 transplants are performed each year. Because of the large discrepancy between demand and supply, heart transplants are reserved for patients with severe end-stage heart disease. ”

    http://www.montefiore.org/MontefioreHeartCenter/cardiothoracic/surgical-services/heart-tranplant/index.cfm

    Every single one of those 2,300 to 2,400 transplant donors is murdered, according to the position that brain death is not halachic death.

    “the concept of brain death was unheard of fifty years ago”

    As was the concept of deceased-donor organ transplants (with the exception of cornea transplants). The first lung transplant was in 1963, the first pancreas transplant in 1966, the first liver and heart transplants in 1967.

  194. “You mean that since you disagree with me, I should change my mind? Does that ever work in reverse?”

    For God’s sake, Gil, we’re quibbling over language, not substance. Be a man and change it. It won’t kill you.

    Unless you’re just the great (as yet not formally attacked by Matzav) blogger and I’m just a lowly commenter and you’re above such things.

  195. I also agree with the majority that your headline is far from the neutral reporting we are used to on this section of the blog. The rabbis were targeting a position, not Rav Auerbach. I doubt they even had Rav Auerbach in mind when the issued or signed the statement.

  196. Gil,
    I think it is morally untenable to criticize the at times extreme language of this letter with out similarly pointing out the far more extreme language and actions of opponents of brain death in recent weeks.

  197. http://matzav.com/left-wing-rabbis-call-rav-shlomo-zalmans-shitah-on-organ-donation-morally-untenable
    Gil – I hope you’re proud of yourself. I am absolutely certain that the monkeys at matzav had no idea about R. Shlomo Zalmen’s ruling until you started editorializing in your headlines. Why the need to turn rejection of a position into an excuse for hysterical wingnuts to unleash their hatred? You talk of schism – it seems you are trying your hardest to promote it. It may be easy for you to pretend it just aint so, but these ‘LWMO’ people are your natural allies on many issues (how many of the commenters on matzav stand up for rabbis who support the vilest criminals as long as they walk the walk? How many YCT rabbis do?). Don’t think that the crazies won’t come for you after they’ve finished with YCT.

  198. What’s sickening and hilarious about that link is the commenters attacking the signatories while at the same time demonstrating what ignoramuses they are in all sorts of ways.

    But who knows, perhaps such comments would be approved here as well.

  199. R’ IH,

    I agree with the important question that you posed, as to whether I have ever faced a situation where a close relative for whom I would have to sit shivah was in a situation of “yehareg vi’al ya’avor”. After all, naivete on my part would be a disqualification to offer a comment.

    The answer is affirmative. My father, born in 1941 Czechoslovakia, was hiding in the mountains with his parents and two siblings in a Nazi-occupied village during the war. They were dressed as Noahides (for if they were discovered to be Jews they would have been immediately executed). On one occasion, a Nazi commander heard my aunt accidentally articulate a Yiddish sentence to her mother (-my paternal grandmother). The commander immediately interrogated my grandmother in German: “What did she say?” “Oh,” answered my grandmother in German, “she was just asking for one of her toys.” Bichasdei HKB”H, Yishtabach Shemo, the commander accepted my grandmother’s lie, and did not pose further questions.

    According to Halakhah (Shulchan Arukh Yoreh De’ah 157:2), had the Nazi commander not accepted my grandmother’s lie, and had he directly asked my grandmother whether she was a Jew or a Noahide, my grandmother would have been obligated to tell the truth that she was a Jew, and both she as well as her children (including my father) would have been obligated to die in sanctification of the Name of Heaven.

    I maintain that – because of safek – the same is true of people who need organs that depend upon brain death. We do not possess convincing proof to adjudicate the cow lactation and Eli Hakohen debates that our ancestors have pondered for centuries. Brain dead patients could very well be dead (-we have refuted R. Bleich’s proofs that brain dead patients are definitely alive), but we do not possess any compelling proof that brain dead patients are definitely dead, either. And so it is safek piku’ach nefesh for the brain dead patient, and we cannot take his organs under any circumstances.

  200. They were dressed as Noahides? What do Noahides dress as?

    I somehow doubt he would have asked her if she was a Noahide either.

    To topic, I’m pretty sure the Shulchan Aruch you cited is not normative at all.

  201. Nachum: I just don’t think there is any reason to change the headline, which is entirely accurate. It does not say that the letter attacks R. Shlomo Zalman, just his ruling. And it uses the exact same language the letter does, nothing more and nothing less.

    FWIW, I have been explicitly attacked by Matzav.

    Moshe: I am not aware of anything the so-called opponents of brain death have done.

  202. Gil,
    We can start with the RCA position paper, which was at least as disrespectful to those poskim who approve brain death criteria. Further are you aware of the recent incident in Israel regarding rabbinic intervention with a grieving family to pressure them not to donate organs, lest there should be a high profile case of organ donation?

    Bottom line is, that you consistently lose credibility when you use the article headlines in your news round ups to editorialize. Its snarky and often down right nasty. In the end you undermine your cause.

  203. R. Student,
    You are the Rosh Yeshiva on this website. R’ Nachum, who is a tzaddik gammur, has offered me an important response at 8:04 a.m, in the noble spirit of the Oral Torah. Please tell me: Is R’ Nachum correct that I am misconstruing the Halakhah? Have I misread Shulchan Arukh? This is a matter of life-and-death which affects the entire House of Israel, and indeed all humanity; I am quite certain that members of the RCA who will be influential in formulating RCA policy are carefully following our conversations. So it is important that you adjudicate between the assertions being advanced by R’ Nachum (who is a tzaddik gammur) and myself.

  204. Joel Rich in his comment of 1/12 at 8;28 presented a very important article of Harav Halperin M.D,editor and director of the SCHLESINGER Institute, including a letter of Harav S.Rapoport, who edited the last volumes of Rav Moshe stating that Rav Moshe definitely paskened that brain with brainstem death is death,even if the heart is beating.
    I find it difficult to comprehend, from what I know, why this has not received the proper attention.

  205. Nachum: You think Matzab/Yated needs my help in attacking the MO? They are plenty good at it without me.

    Moshe: I did not see anything offensive in the RCA paper. I agree that the incident in Israel was entirely inappropriate.

    Shalom Spira: I have no idea what Nachum is talking about when he says that this ruling in Shulchan Arukh is not normative. My assumption is that it is.

  206. Someone asked above what R. Hershel Schachter says about receiving organs. I haven’t discussed this with him but in his article in Be-Ikvei Ha-Tzon he says that you may not.

  207. And Nachum, I have deleted many inappropriate comments on this thread.

  208. Shalom Rosenfeld

    Daat Y,

    If I understand correctly (and I hate to wade into this firestorm):

    The Tendlers and Rapoports, i.e. Rav Moshe Feinstein’s family, say he considered brain death to be halachic death. Of those who differ, someone like R’ Elyashiv is certainly willing and able to disagree with Rav Moshe; but American poskim such as RH”S disagree with that interpretation of Rav Moshe, and say that Rav Moshe’s case in question was something other than brain death; he did not rule on brain death. Again, if I understand correctly.

  209. I simply mean that it’s not a yehareg v’al ya’avor to pass yourself off as a non-Jew to save your life. It’s not like the German was asking her to worship avoda zara. (And, believe it or not, even if he was, there’s some debate on the issue.)

    Many, many Jews passed themselves off as non-Jews in an active manner during World War II to save themselves. Many Jews acted as Catholics to save themselves in Spain. At the very least, to state that they were violating a yehareg v’al ya’avor is being choshed b’k’sherim as no authority ever has.

  210. Gil, it’s really simple. Your snarky title is an attempt to shut down debate. “How can you say it’s immoral? R’ Shlomo Zalman said it’s OK!” That’s the way Charedim argue. I expect more from you.

    And I’m of an age when I distinctly remember how the media crowned R’ Shlomo Zalman (and, at the same time, yibadel l’chaim, R’ Elyashiv) the gadol hador. I’m not saying he didn’t deserve it- all accounts say he did- but it makes me view it with a bit different view.

  211. I am saying that THEY are doing the exact reverse. By stating that the position is morally untenable, they are shutting down debate.

  212. “By stating that the position is morally untenable, they are shutting down debate.”

    With respect, this is cognitive dissonance given your position on Rabbis Tucker & Rosenberg. But, you are entitled to editorialize in your headlines as you wish. “Sunlight as a disinfectant”.

  213. Exactly. The effect of the statement on brain death is to declare that R. Shlomo Zalman Auerbach’s position is beyond the pale of acceptability. I have a problem with that.

  214. hirhurim – “declare that R. Shlomo Zalman Auerbach’s position is beyond the pale of acceptability.”
    not really – beyond the pale sounds is more imflamatory-but that it is morally indefensible in our society. didn’t shimon ben shetach in the yerushalmi have a moral issue of not returning a lost item to a non-jew – which was the halacha ? didn’t he say – what am i, a barbarian? how is this not similar?

  215. Still doesn’t cut it, Gil. By invoking his name (especially as he’s no longer alive), you’re making an appeal to authority. Why, exactly, should it matter that they’re saying (you claim) that *his* position is wrong, any more than, say, R’ Elyashiv’s?

  216. ruvie: Fine. Don’t say “beyond the pale of acceptability” but “morally indefensible in our society”. Either way, that’s not the way speak about the views of people like R. Shlomo Zalman Auerbach.

    Nachum: It’s famous in the name of R. Shlomo Zalman Auerbach. I’m not a walking encyclopedia of various shitos. R. Shlomo Zalman was very involved in the debate, was the reason they held the sheep experiment(s) and was one of the 2 people R. Tendler incorrectly stated in Tradition had changed his mind and therefore had to reiterate his position publicly.

  217. I do know the family of an organ donor, and they would be appalled that Dr. Shinnar would assume them to be so judgemental of one who follows his Rabbi’s opinion and respects their right to follow their own authorities. They would have no problem donating to one who could not donate himself.
    Yes, they are special people. But the people who are less special do not make RSZA’s position “morally untenable.”

  218. “Either way, that’s not the way speak about the views of people like R. Shlomo Zalman Auerbach.”

    But, are they? Their statement is “To adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable.”

    and as you stated: “I don’t believe R. Shlomo Zalman allows accepting organs in Israel.”

    So where is it they “declare that R. Shlomo Zalman Auerbach’s position is beyond the pale of acceptability.” ?

  219. And what does R. Shlomo Zalman hold about outside of Israel? Evidently, something morally untenable. If only he had had a more refined sense of morality.

  220. This is a silly game. Can nothing be morally untenable if a great rabbinic figure has voiced support of it? That essentially means that we can hold no moral principles whatsoever. If you search hard enough, you can find massive gedolim advocating many, many things that everyone nowadays finds morally untenable. If I say it is morally untenable to be racist, will you find that statement unacceptable because there were gedolim who were? If I say that tattooing a mamzer’s forehead is morally untenable, or if I say that avoiding marrying into a family because you think that they are the progeny of a demon is morally untenable, would you still have a problem? The upsetting realization is beginning to dawn on me that you may well do…

  221. “And what does R. Shlomo Zalman hold about outside of Israel?”

    Good question. He would have had to explictly say so for your assertion they “declare that R. Shlomo Zalman Auerbach’s position is beyond the pale of acceptability.” to be factually correct.

    Did he explicitly pasken that it was acceptable outside of Israel?

  222. Anonymous: Be that as it may, the headline was correct.

    IH: You are nitpicking, incorrectly.

  223. hirhurim – “Someone asked above what R. Hershel Schachter says about receiving organs. I haven’t discussed this with him but in his article in Be-Ikvei Ha-Tzon he says that you may not.”

    in a recent shiur – in the last 30 days – rav schachter when questioned on taking organs – as a receptient -said he saw objection to accepting the organs.

  224. “IH: You are nitpicking, incorrectly”

    Au contraire. The evidence thus far (e.g. reported piskei din for Israel and China) indicates that RSZA’s position was in full accordance with “To adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable.” He was machmir on both ends.

    Therefore, your headline “100 rabbis call ruling by R. Shlomo Zalman Auerbach morally untenable” and your further assertions are empirically false.

    My own editorial now: this debate, in addition to the one on women in which I participated, illustrates the fatal flaw in Centrist Orthodoxy: the selective use of process, text and effective cherems as tools to effect political — in the broad sense – positions as “normative” halacha.

    As Rabbi Brill stated in 2005: “[…] 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.”

  225. correction: rav schachter saw NO objection in accepting the organs. the assumption of rav schachter was that the person was dead anyway.

  226. good summary of the life/death issues by r’ slifkin in a clear and succinct manner:especially on issues relating to science, chazal and torah.

    http://www.rationalistjudaism.com/2011/01/summary-of-lifedeath-issue.html

  227. R’ IH,

    Firstly, I fully agree with you that – halakhah lima’aseh – one may not accept organs even in the Diaspora, for the reason explained in my comment yesterday at 6:53 p.m. There are many sfekot to be lenient (including the important lomdut of RSZA, who was a saint and must be treated with reverence), but those sfekot are utterly useless against the overarching value of piku’ach nefesh of the brain dead patient and avoiding geram retzichah of the brain dead patient.

    Secondly, R. Student is correct that RSZA did permit receiving organs in the Diaspora. This is stated in Shulchan Shelomoh, Erkei Refu’ah II, pp. 30, 40-42, 48-49, as was confirmed in conversation between R. Avraham Steinberg and myself this past Shabbat Pinchas. The philosophical rationalization that we can present to the nations of the world regarding RSZA was elucidated by R. Doron Beckerman, quoting the responsum of R. Kook regarding cadaver dissection. But since RMF did not agree with RSZA’s lomdut, I agree with the distinguished rabbinic signatories that we are unable to actualize RSZA’s lomdut.

  228. Can nothing be morally untenable if a great rabbinic figure has voiced support of it?
    =============================================
    Does Halacha define morality (why was the concept of mishepara introduced – if halacha says no enforceable transaction took place, why should it be morally wrong to reneg?)
    KT

  229. “Does Halacha define morality”

    Funny you should raise this, I was assuming it would have been raised much earlier in the discussion 🙂

    While this makes for fascinating debate, it is different than the issue at hand — the point raised by the 100 Rabbis is that being machmir on one side of the halacha and maykil on the other side is what is “morally untenable”. I.e. it is not the halacha’s morality that is in question, it is the inconsistent use of it to one’s advantage.

  230. Nobody thinks halacha defines morality. Some people pretend to, but anybody who really thinks that anything a posek says is by definition moral is either ignorant or mad. Anyone with a decent seforim collection can find things that were said in the past by posekim, in halachic responsa, that are clearly not moral, and, whichever ways we find to get around them, we still don’t put them into practise. Any supporters here for capital punishment for a three year old nochrit raped by a male yehudi (paskened by the Rambam)? I’m not talking about whether we would do it (no beis din or smeicha etc.), but I don’t think anyone today would be OK with this even in theory.

  231. To provide further perspective on how it is possible for RMF to question the assumption (embraced and endorsed as normative by Moreinu ViRabbeinu HaRav HaGa’on RSZA) that the Noahide Code empowers the Noahide legislature/judiciary to modify the laws of homicide, we may call attention to a methodologically comparable dispute among the poskim (catalogued by R. Bleich in his Benetivot Hahalakhah II, p. 154, footnote 3) whether the civil laws followed by Noahides must literally conform to the provisions we find in Seder Nezikin, or whether the Noahide legislature/judiciary can follow its own norms. [A humorous spin-off of this debate: the U.S. Constitution was apparently written with the same ink used to write – lihavdil – a Sefer Torah.] Thus, while RSZA’s position regarding the laws of homicide for Noahides is highly erudite and authoritative, so is RMF’s countervailing position, which leaves us with a safek.

  232. Shalom Rosenfeld-The letter of Rav Rapoport the editor of the last editions of the Igros Moshe stating he was told directly by Rav Moshe that Rav Moshe supports brain death together with brainstem death,AS DEATH speaks for itself.
    RHS and Prof. Abraham reinterpreting Rav Moshe’s teshuvah is difficult to understand and criticized logically by Rav Dr.Halperin.
    I recommend reading the full article.

  233. Daat Y,
    Or they could just be following the Brisker tradition that it doesn’t matter what R’MF really thought, it’s how the chachmei hamesora understood what he wrote.
    KT

  234. daat y: It is because other great talmidei chachamim had numerous discussions with Rav Moshe on the same subject and left with different pesakim. Specifically, based on Rav Moshe’s opinion, Agudah lobbied *against* brain death legislation. And R. Shmuel Fuerst dealt with these issues many times and Rav Moshe did not allow him to rely on brain death.

    I have no idea what all this means. I can’t reject R. Shabtai Rapoport’s testimony. Rav Moshe’s position was clearly complex and probably changed over time.

  235. Regardless of whether halacha defines morality, R. Shlomo Zalman Auerbach gaves this as a practical ruling to a prominent American rabbi, knowing full well that he would put it into practice.

  236. No one doubts that R. Tendler disagreed with Agudah. The issue is what R. Moshe told the Agudah leaders.

  237. With the kind permission of R. Student, I would submit (similar to R’ Joel Rich) that one may assume that RMF indeed held that brain death=death. He never wrote so clearly in any responsa (-all of which, amazingly enough, are written as a double entendre, as the RCA document brilliantly demonstrates), but he did orally say so clearly to RDF and RMDT.

    Pursuant to Tosafot to Yevamot 77a, we cannot accuse RDF and RMDT of perjury. Both RDF and RMDT have a chezkat kashrut, and they are tzaddikim gemurim. Thus, their testimony is accepted and true. The same holds true for R. Binyamin Walfish’s testimony vis-a-vis RYBS.

    That said, I believe that the normative Halakhah is that – out of doubt – the brain dead patient must be treated as alive, and that the RMF/RYBS ruling must be overturned, because the RMF/RYBS ruling is lacking in sufficient lomdut, as I demonstrate in the “Brain Death in the News” comment, Dec. 8, at 3:24 p.m.

    RMF himself told us to do this (i.e. to overturn the rulings of halakhic giants when they are posthumously discovered to be lacking in sufficient lomdut), in IM YD 3:88, and so there is no disrespect to RMF in doing so, only respect to HKB”H and His paramount mitzvah to heroically champion the cause of safek piku’ach nefesh.

    Of course, as Dr. Shinnar has correctly observed, championing the safek piku’ach nefesh of the brain dead ipso facto condemns the would-be-organ-recipients to death (barring an ECMO machine). There is nothing we limited human beings can do about this: “the Torah was not given to ministering angels”, as per the gemara in Berakhot 25b. Some tragedies are beyond our capacity to eliminate. But, as mentioned in my comment yesterday at 1:05 p.m., we could perhaps – in general – build many more hospitals and train many more physicians, to ameliorate the general health of the public. [It doesn’t solve the acute moral tragedy of the death of the would-be-organ-recipients, but it’s a consolation prize.]

  238. My understanding is that R. David Feinstein does not have personal knowledge of his father’s position but is relying on his brother-in-law and nephew. I seem to recall seeing that in print somewhere.

    I’m not denying that this was R. Moshe Feinstein’s position. I’m just saying that other highly respected poskim denied it and that leaves me confused. This is compounded by R. Tendler’s testimony about the position of R. Shlomo Zalman Auerbach and R. Eliezer Waldenburg that was later shown to be incorrect, presumably a misunderstanding — all of this in the pages of Tradition. It’s all hard for me to wrap my brain around.

  239. If RDF is relying on RDT’s testimony, why would he stress in the HODS video that his father held of death specifically as the cessation of autonomous respiration, as opposed to brain death (although he admits that they are in essence the same)? It seems that he has a specific kabolo from his father as to what death is.

  240. Yes, R. Student, that is what R. Bleich said in the name of RDF. Now I am in an enormous “pickle” (as Mori ViRebbi R. Kaplan correctly termed the whole sugya earlier). I am a student of R. Bleich, and I have been personally saved from all sorts of crises by R. Bleich, but – at the same time – I am in the unenviable position of having to disclose the truth (as best I see it) regarding brain death. So the truth must be told: R. Bleich seriously misunderstood RDF, R. Bleich seriously misquoted RDF, and R. Bleich is halakhically obligated to apologize to RDF this coming Erev Yom Kippur (-just as I am obligated to apologize to R. Bleich for writing this, but I am writing this because I know the RCA is carefully watching our conversation, and is using it as a template for future policy. I want the RCA to pasken that brain dead patients are safek alive, so I hope R. Bleich will forgive me for writing this. It’s a necessary discomfort to achieve a greater good).

  241. I don’t know about RDF. I think R. Breitowitz also writes that RDF did not have personal knowledge of RMF’s position. Like I wrote above, I find this all difficult to wrap my brain around.

  242. Glatt some questions

    Rav Schachter saw NO objection in accepting the organs. the assumption of rav schachter was that the person was dead anyway.
    ————————-
    Perhaps a medical expert should sit down and explain to Rav Schachter that the brain dead person is not halachically dead (according to R. Schachter’s opinion) until his organs are harvested for transplant, and it’s the recipient’s match to the donor that directly and specifically triggers the harvesting (and the donor’s death, according to Rav Schachter’s definition of halachic death). The person was not “dead anyway” when the harvesting of organs took place, and the only reason the harvesting of organs was performed was to faciliatate a direct transplant to the recipient.

    I am finding it very difficult to understand Rav Schachter’s logic in rendering his psak, and can only conclude that this great talmid chacham may not be entirely familiar with the medical details of how transplantation works.

  243. On the abortion release-I wonder what the responses from all streams would have been if it had been R’Avi Weiss and not R’ Zweibel?
    KT

  244. So, the claims for “normative halacha” have dissolved into debated and possibly conflicting memories of oral mesorah from RMF and RSZA. Fascinating.

  245. glatt – the question that was asked did not have the brain death issue and was not follow up with any other possibilities. you are correct that there seems to be lack of medical understanding/process by rabbis in this area. another question that was asked was if you decapitate a person but keep his circulatory system alive – rav schachter indicated that he considered the person alive. strange times indeed. this was relayed to me by 3 people that were there at the shiur (i could not attend).

  246. I think that R Gil has summed up the issue quite well-when one views a position other than 100% unqualified support of brain death as wrong or beyond debate, that is shutting down debate on a halachic issue that is hardly an issue that reasonable Poskim can disagree on. Mycroft is right-doctors, even if they are Talmidei Chachamim, can aid in the determination of the metzius, but cannnot be viewed as dictating their expertise to Poskim such as RSZA who consulted with physicians, when the underlying theme of much of their argument is that anyone who does not subscribe to brain death is simply an uneducated or backwards Neanderthal, whose frame of reference needs to be “updated” merely because new criteria dictated on high from Harvard have impacted on the health care community without really considering a competing POV-how Judaism and other religions have traditionally defined death.

  247. IH: RSZA was still alive at the time and made his view entirely clear. But I never made any claim that there is consensus on this issue.

  248. Steve Brizel
    I think that R Gil has summed up the issue quite well-when one views a position other than 100% unqualified support of brain death as wrong or beyond debate, that is shutting down debate on a halachic issue that is hardly an issue that reasonable Poskim can disagree on.

    No one has actually said anything close to what Steve Brizel is disagreeing with…. Everyone agrees that one can disagree with brain death and be moral, and the precise definition of death is something that is clearly part of the halachic debate. The issue is that if one does not agree with brain death – it is immoral for the community to demand to benefit from what it views as murder – and that is not subject to debate amongst rational moral people (or rather, those who would debate that can be considered to be either immoral or irrational..)

    and, BTW, it is not clear to me that the position views RSZA as either immoral or irrational – because his psak was private rather than public – and the private discussion one has with an individual facing death is quite different than a public policy decision. Once the RCA made it a public debate -options become far more limited.

  249. steve b. – “without really considering a competing POV-how Judaism and other religions have traditionally defined death.”
    why would rely on point of views? this is not i have a view and you have a view – its scientific knowledge that is important. and if you do not recognize that knowledge how can you pakened based on assumptions from 2000 years which is known to be factually incorrect. should you not do cpr because someone stop breathing or not have a kidney transplant or hear transplant (against chazal)?

  250. >So, the claims for “normative halacha” have dissolved into debated and possibly conflicting memories of oral mesorah from RMF and RSZA. Fascinating.

    חסורי מחסרא והכי קתני

  251. Steve, Please. You undermine Rabbi Student’s position by resorting to such dishonest strawman argumentation. In 250-odd messages, I don’t recall anyone who even implied, let alone said, something along the lines of “anyone who does not subscribe to brain death is simply an uneducated or backwards Neanderthal whose frame of reference needs to be “updated” [etc.]

  252. R’ Ruvie, thank you and yi’yasher kochakha for the very intriguing information from RHS’s recent shiur. I agree with you that a literally decapitated human being (where the entire cranial unit has been physically removed from the body) is no longer alive, even if the body remains attached to a lifesupport machine, as I concede to Dr. Stadlan in the “Brain Death in the News” forum, on Dec. 9, at 6:51 p.m. RHS is clearly refuted by Dr. Stadlan (and yourself) on this count. In apprising R. Bleich of this development on the telephone, I invoked the Rashi regarding the miraculous frog in Egypt – that frog did miraculously bifurcate into two creatures, but it’s the exception that proves the rule. A human being cannot suddenly bifurcate into two human beings, and so it is clear that a human being requires the anatomical reality of “rosho virubo” (just as we find by hilkhot sukkah, and paralleled by the laws of childbirth) in order to be alive. But the brain dead patients with which healthcare workers deal do have “rosho virubo”, and are indeed potentially alive.

    Regarding the Halakhah for cardiopulomnary resuscitation, see my comment in the “Death by Neurological Criteria” forum, on Dec. 12, at 12:00 a.m.

  253. RSZA sent his opinion to one of the leading poskim in the US (R. Feivel Cohen) and published it in the newspaper. That’s hardly a private pesak.

  254. But, RSZA also paskened against (in 2007) as published in several newspapers. Perhaps he changed his view over time (1991 to 2007)?

  255. Also, it is important to understand if the letter to Rav Feivel Cohen had other stipulations or context. It is not inconceivable that, for example, he viewed pikuach nefesh of such a posek to be justification to be maykil in his specific case.

  256. Yes, R’ IH, you are correct: RSZA changed his view over time. The sheep experiment was very influential (-and with legitimate cause, in light of my comment at 4:22 p.m. regarding decapitation).

  257. There is a second dimension in which RSZA changed his view over time. After the sheep experiment (which switched RSZA’s pesak halakhah of typical brain dead patients from “vadai chai” to “safek chai”), RSZA believed that after 30 seconds of cardiac arrest, the brain dead patient is definitely dead, and one can harvest organs. Later, he discovered that the hypothalamus survives even after 30 seconds of cardiac arrest, and so he reversed himself and ruled that the brain dead patient is still “safek chai” even after 30 seconds of cardiac arrest. (Shulchan Shelomoh, Erkei Refu’ah II, pp. 29-31).

  258. The entire letter to R. Feivel Cohen and RSZA’s response to the sheep experiments (which took a place a month after the letter to R. Cohen), and subsequent letters are all published in toto in Nishmas Avraham.

  259. >But, RSZA also paskened against (in 2007) as published in several newspapers. Perhaps he changed his view over time (1991 to 2007)?

    He died in February of 1995.

  260. I was confusing players. So, setting the record straight:

    In 1991, RSZA sent the letter to Rav Feival Cohen permitting acceptance of an organ donation, within the context of his disapproval of organ transplants based on brain death.

    In 1992, after the sheep experiment, RSZA publicly reversed his position and permitted donation based on brain-death.

    It was Rav Elyashiv who is opposed on both sides and made the China psak.

    So, both RSZA and RYSE are internally consistent: one is maykil on both ends; and the other machmir on both ends.

    So, once again, Rabbi Student’s headline fails the red-face test.

  261. In 1992, after the sheep experiment, RSZA publicly reversed his position and permitted donation based on brain-death.

    No, not at all. After the sheep experiment he wrote the following: …אולם למעשה אין זה משנה כלל את המסקנא הקודמת שעדיין יש חשש של הזזת גוסס ונמצא שבחו”ל מותר ובא”י אסור…

  262. If one goes to the HODS website there is a direct statement by RDF THAT BREATHING IS THE CRITERION OF HIS FATHER.
    THE ENTIRE ISSUE OF THE BRAIN AND BRAINSTEM IS TO PROVE THAT THE BREATHING IS IRREVERSIBLE.

    AGAIN READ tHE ARTICLE MENTIONED BY Joel Roth at jan.12 8:28.
    In SEFER assia 7,PAGE 147 RDF ALSO STATES “IF HE IS LYING AS IF DEAD WITHOUT MOVEMENT EVEN THOUGH HIS HEART BEATS SINCE HE IS NOT BREATHING HE IS ‘KEMASE GAMUR’.”That is the opinion of his father.

  263. The Jerusalem Post reported on 2 August 1992:

    “When a revered haredi [ultra-orthodox] rabbi reverses his position and rules that organ transplantation is permissible and not–as he previously stated–“bloodshed,” will his followers change their views as well?

    As first reported by The Jerusalem Post, Rabbi Shlomo Zalman Auerbach–regarded as one of the foremost halakhic arbiters of the age and influential among many modern Orthodox Jews–now regards organ transplantation as allowable under Jewish law.

    Auerbach recently accepted the definition of “death” as being cessation of function by the brain stem, which controls breathing and other vital bodily functions. If brain-stem function is proven by various tests to have ceased, doctors may turn off the respirator. If the person’s heart is asystolic (shows “heart silence”) for 30 seconds, vital organs may be removed for transplant, the rabbi stated.

    Despite his ruling, Auerbach has not issued a public call for organ donation.

    Health Minister Haim Ramon responded to the rabbi’s ruling by saying that he “welcomes all efforts to increase the number of organ donors.” He added that the matter of the 30-second delay would be studied by the ministry. Prof. Joseph Borman, head of the cardiothoracic surgery department at Hadassah-University Hospital, which has performed most of the country’s heart transplants, said he was “willing to meet with anyone, anywhere and at any time to increase the pool of available organs.”

    Rabbi Yehoshua Scheinberger, “health minister” of the ultra-Orthodox Eda Haredit, is the haredi community’s coordinator with the medical world here and abroad. He told the Post that he was aware of Rabbi Auerbach’s new position on transplants. “The haredi community in Israel is so emotionally opposed to the idea of transplants, that a ruling that they are permissible, even by someone with the stature of Rabbi Auerbach, is not enough to overcome basic beliefs and fears about this.”

    Scheinberger arranges organ transplants abroad for haredim who need them, since accepting organs removed from non-Jews is regarded as less objectionable, he said. “Unfortunately, most haredim don’t trust the doctors to follow halakhic procedures exactly as delineated by the great rabbis. They just don’t believe they can rely on them.” He was pessimistic that the gap between the haredi and medical communities could be bridged in the short run. “I am ready to sit down with the doctors and discuss the matter, and then go to the top rabbis of the Eda Haredit’s [haredi community’s] rabbinical court (Badatz [which stands for beit din tzedek, or court of justice]), even though this would arouse great opposition. The doctors would have to initiate talks, but I would be ready to be a go-between,” Scheinberger said.”

  264. Tradition 29:2, 1995

    To THE EDITOR:
    A letter in the Communications column (Tradition) 28:3, Spring 1994) gives the mistaken impression that there is a growing consensus on the halakhic acceptability of brain death as halakhic death. The letter referred to an article written by Dr. A. Steinberg which was soon to be published in the journal Assia. This issue (14:1-2) appeared in August 1994. In the article quoted, the first statement of the conclusion section on Rabbi Auerbach’s position states:

    “Brain death as it is established by physicians today is not adequate to establish the death of a person. Such a person is considered a safek goses safek met, and, therefore, it is not permissible to hasten the death of such a person in any manner. It is forbidden to remove any organ for transplantation as long as his heart beats for fear of hastening the death of a goses. This is forbidden even for the benefit of an il person before us who will certainly die.”

    In addition, this past Kislev Rabbi Auerbach wrote the following letter to me:

    “I received your letter and I am informing you that I have not changed my mind from what I had originally written to you in 1992, as published in Assia (August 1994, pp. 23-24). I still believe that a person who is brain dead has the status of a gases according to the law of our Holy Torah. When a person moves a goses it is as if he spilled blood, and, obviously, one cannot remove any organ from him. I have written this same statement to Professor Abraham, and this too was published in Assia (August 1994) and was explained in the article of Dr. Steinberg.”

  265. I am going to stop here, but I do want to repeat the halacha le’ma’aseh points I made yesterday:

    The primary issue is that we have an existence proof that the consequences of halachicaly prohibiting organ donations leads to immoral and illegal activity in which the Israeli rabbinate was complicit by commission or omission:

    “According to organ trade expert Nancy Scheper-Hughes of Organ Watch (in 2001), Israel had become a “pariah” in the organ transplant world. The lack of donations due to Jewish custom heightened the disparity between the supply and demand of organs. This led to the popularity of “transplant tourism” in which patients in need of organs travel to medical centres abroad to receive organs.[11] Prior to the 2008 law prohibiting it, some Israeli organ brokers advertised on the radio and in newspapers. Kidneys, which are the most traded organ, may fetch up to $150,000 for brokers who usually pay the donors far less.[10]”

    The logic chain is: a) organ transplants are a proven way to save lives; but, b) Jews in Israel may not receive transplants there; then, c) Jews in Israel will go elsewhere to receive a transplant and save their own lives; and, d) since organs are not legitimately available to Israeli Jews in other countries; then, e) Israeli Jews who can afford it must rely on the international black market. The fact remains that while Kupat Cholim would not pay for the black market transplant, they did (and do) pay for the post-transplant care that is required for life.

    The secondary issue is that a position that can be legitimately summarized as: ~” it is halachically required (and morally acceptable) for Jews to not donate organs at the declaration of brain death because there is a doubt that the prospective donor is dead according to Jewish law; but, it is halachically required (and morally acceptable) for a Jew to accept an organ donation because of the primacy of saving a life.”~ provides succor to the revival of the blood libel amongst anti-Semites in our time.

  266. However, as a continuation to my comment at 4:50 p.m., and in all fairness to the HaRav HaGa’on HaRishon Litzion R. Shlomo Moshe Amar, I must note that the “typical brain dead patients” of RSZA’s era are not necessarily the typical brain dead patients of our era. This is because RSZA says that if in the future, equipment will be invented that can diagnose with 100% accuracy that every single brain cell has died, then the brain dead patient will be “vadai met” (Shulchan Shelomoh, Erkei Refu’ah II, p. 31). This is because of his interpretation of the Eli Hakohen episode (ibid, p. 40). Accordingly, writing over a decade later than RSZA, R. Amar asserts in his responsum published at http://www.hods.org/pdf/ShlomoAmar.pdf
    on p. 19, that our technology does possess the capacity to meet RSZA’s expectation.

    [S. Spira’s response to the Rishon Litzion: even if so, the Eli Hakohen episode is itself subject to controversy. Some poskim hold (contrary to RSZA) that even a physiologically decapitated patient is still alive, provided that circulation continues, and so there is seemingly still a safek that the brain dead patient is alive.]

  267. IH-The rhetoric both in the linked articles and the comments against the views of RSZA and other Poskim who have either opposed or raised objections to the use of brain death all are based on a view that any Halachic objections based on a cardio-respiratory definition of life and death are ancient, outmoded and should yield to the Harvard criteria. It is as if serious discussions in Chazal, Rishonim and Acharonim simply became irrelevant merely because the Harvard criteria embraced a new theory that one can argue was never considered as such, except in the case of a Treifa.

    Ruvie-that is exactly my point. The Harvard criteria invited the medical and health care establishment to ignore any other possible criteria which were (and are) relied on thereto in good faith by patients and their next of kin. Let me pose the question this way-if no Posek of sufficient status accepted or if all Poskim of sufficient status had viewed brain death as objectionable and presenting a query based on Rtzihca or at least a Safek Rtzicha of Patient A to save the lives other patients, how then could any physician who considers themselves to be a Torah observant person participate in or advise a patient that such a procedure was medically permissible or a medical necessity? WADR, citing the CR, an institution that RYBS viewed as a political entity, and which RAL was very critical of for similar reasons, as permitting the same when the view of RSZA is clearly not in favor as well as the ambiguous views of RMF, does not set forth a case that the Gdolei HaPoskim who considered the issue unanimously were in favor of brain death as the definition of death.

    We also tend to forget one other factor at play-all hospitals engage in utilization of resources reviews as a means of ensuring that beds are available for patients. A patient who has been declared brain death costs far less to “treat” and maintain than a person who is comatose and whose next of kin are insisting that he or she be entitled to all heroic measures to preserve their life.

  268. Steve- why is it heroic to try and preserve the life of someone who is simply rotting whilst we wait for their heart to stop?

  269. why is it heroic to try and preserve the life of someone who is simply rotting whilst we wait for their heart to stop?

    Both efforts are heroic — preserving the minimal life left in a person at the very end of his glorious life and attempting to give a dying person a long life in the future.

  270. No, it’s not heroic at all. Isn’t there a Ran somewhere about this?Who gains from keeping a living corpse’s heart beating for as long as possible (even if halachically they are alive, there is nothing else alive about them)? I’ve sat by the bed of a brain dead person for days – let me promise you that nobody gained at all from the efforts to sustain that person in their condition. You try sitting and watching your loved one disintegrate – literally. I’m not saying that you should kill them, chas veshalom, but it is pure selfishness to try and prolong this dreadful process for as long as possible. You try not allowing yourself to keep your hopes up as you ask the doctors to keep going. You try explaining to an idiot rabbi that he shouldn’t ask his congregants to daven for a refua sheleima. As a famous rav told me, when his mother was in her last days, he davened that if she has a chance to get better, let her have a refua sheleima, but if not, let it be quick and painless. In the case of a brain-dead person, the latter is the only humane option.

  271. “why is it heroic to try and preserve the life of someone who is simply rotting whilst we wait for their heart to stop”

    Who are we to play God and determine what constitutes the quality of life? If someone you knew had sustained a life threatening injury in your presence, would you try to save his or her life, or merely view the person as having lived a wonderful life? I think that we are commanded to preserve even “Chayei Shaah”, as opposed to engaging in medico-actuarial computations and calculations as to the “quality of life” ala Peter Singer.

  272. R. Student, thank you for Nishmat Avraham reference, and R’ IH, thank you for the 1992 Jerusalem Post article. Very interesting… what a zekhut Eli Hakohen must have; he ascended to the Heavenly Academy three thousand years ago, and we are still debating what happenned to him. I’m sure he’s “shepping nachas” in Gan Eden.

  273. “Both efforts are heroic — preserving the minimal life left in a person at the very end of his glorious life and attempting to give a dying person a long life in the future.”

    That begs the question; i.e., it assumes that there is some minimal life left. If one accepts brain death, there is no basis for that assumption; one is preserving nothing while at the same time letting the actually living person (lechol hadayot) die.

  274. “Who are we to play God and determine what constitutes the quality of life? ”

    Nobody’s talking about “quality of life”; they’re talking about people who are dead. Why do you keep on raising strawmen as if someone is making the argument that you attempt to refute?

  275. Steve,
    Brain dead patients have not sustained a “life-threatening injury”. If their life isn’t already over, it will inevitably end soon with absolutely no improvement.

  276. True, but we all agree that if such a patient is halakhically alive we cannot harvest his organs. We agree in theory. At most, we disagree on whether this specific patient is still alive. But we agree that terminal, unresponsive patients who are not brain dead must be treated as living people.

  277. R’ Joseph Kaplan,

    You are correct that there is no mitzvah to maintain a corpse on a lifesupport machine. What R’ Steve Brizel means is that – pursuant to the gemara in Yoma 85a (particularly as supplemented by the mishnah of Yehudah ben Teima telling us to be “heroic as a lion to fulfill the Will of your Father in Heaven”) – we have to orchestrate heroic measures to prolong the life of someone who is doubtfully alive. And I fully agree with R’ Steve Brizel (divrei fi chakham chen usefataim yishak, not that he needs my endorsement). But you are cogently pointing out: who says the brain dead patient is even alive?

    So that leads me to the realization that it’s simply not logical to allow for the brain death issue to be paskened on a case-by-case basis by every local Mara Di’atra. It’s just not the same as a spoon-in-pot question. HKB”H gave the Torah to the Jewish People on condition that every spoon-in-pot question will be decided as the local Mara Di’atra determines. The status of the Cheftza depends on the Mara Di’atra’s decision. This is fundamentally different. Either the Gavra – the brain dead human being – exists as a legal entity, with all its ramifications, or he does not. Either his neshamah is here or his neshamah has departed. The Mara Di’atra cannot change it one way or another. A Mara Di’atra paskens “cheftza” issues; a Mara Di’atra does not pasken whether the “Gavra” exists.

    Presumably, then, the only philosophically coherent solution is for the RCA to call an emergency session of the 6 tzaddikim it identified as the experts on the definition of what a Gavra is (RHS, RMW, RJDB, RGDS, RMDT, CR), and have them address the issues face-to-face. [My feeling is that based on the cow lactation and Eli Hakohen sources, they will come to a conclusion that brain death is safek. But maybe I’m biased because I’m me.]

  278. Glatt some questions

    “Who are we to play God and determine what constitutes the quality of life? ”
    —————————–
    Steve, there is no quality of life in someone who is brain dead. In the history of humankind, nobody has ever woken up from brain death. Ever. I will respect a person who wants to believe that a brain dead person is technically still alive, and therefore cannot be murdered to harvest his or her organs. But please don’t offer a quality of life argument for a person who is brain dead — those who hold that brain stem death is halachic death would say there is no life at all, but even those who don’t cannot in good conscience argue that there is any quality to a brain dead individual.

  279. R’ Joseph Kaplan,

    Just to clarify my previous post, I’m agreeing with you fully (vidivrei fi chakham chen, usifatayim yishak, not that you need my agreement). I express my hakarat hatov to you for the excellent points you rendered which prompted my “philosophical musings” regarding the gavra/cheftza dichotomoy.

  280. Ten Jew Very Much

    Rav Moshe’s position was clearly complex and probably changed over time. R’ Student @ 2:18 pm

    Yes, R’ IH, you are correct: RSZA changed his view over time. Shalom Spira @ 4:40

    How, then, can people speak with certainty how either one–or others among Chazal–would rule based on today’s medical knowledge? (And this question applies to other issues, as well.)

  281. Perhaps it’s an obvious question….. but I’m forced to wonder how much of the “safek” would be removed from discussions of brain death by superior imaging or intra-cranial diagnostic technology relative to what exists today.

    >“…all are based on a view that any Halachic objections based on a cardio-respiratory definition of life and death are ancient, outmoded and should yield to the Harvard criteria.”

    This is back to square one. It seems clear that when we have mechanical contraptions that can generate “respiration” and “heartbeat” on their own, those two phenomena in isolation are insufficient as indicia of life; particularly if a human in question is the object of action by such contraptions.

    Would Chazal have assessed a person as alive by signal of the blood rhythmically flowing through their vessels if the rhythm was generated by a man using a bulb-pump to push liquid on a circuit coursing through the interior of the body? If such was the only indicator of life it seems doubtful, and that Chazal instead would have proceeded to the next stage of figuring out how to decipher the extant signals to determine life or death.

    I’d say the problem is pretty obvious, although the answers are certainly not.

  282. I interviewed Rav Dovid Feinstein about Rav Moshe’s position. I specifically asked him to share with me what he heard his father say (not to explain to me what his father wrote.) I asked these questions in the presence of Rabbi Y. Neufield. This is the interview.
    http://www.hods.org/english/h-issues/YouTube_video%20pages/RabbiDovidFeinstein.asp

  283. Robby: Thank you for clarifying. I see you also have a video of Rav Lichtenstein but I can’t figure out from it what he personally holds. Why didn’t you ask him straight out what his and the Rav’s positions are on brain death? What a lost opportunity to clarify the record for posterity.

  284. STBO: See the 2004 Tradition article by Dr. Joshua Kunin about brain function is brain dead patients.

  285. Regardinf the cross currents article saying:In my decade as an attorney at the kinds of prominent law firms that pay boatloads of salary but that expect round-the-clock servitude and work, no one ever said: “Hey, why does he get paid what we get paid, and why is he getting the same bonus that I get, even though he never comes in on Saturday before 9 p.m. and always leaves early on Fridays?” It is understood that we pay in other ways. Orthodox Jews pay school taxes even though our children do not use the public schools. Our taxes contribute to the police patrols of cities where our community does not commit street crimes.
    ————————————————————
    While reserving comment on the rest of the post, I would like to discuss this section. I have no doubt that R’Fisher is describing his perception of the world around us. I am not aware of any studies of these issues (if anyone is, please post) but from over 30 years of anecdotal experience I would say that there is at least a significant minority (miyut hamatzui) that percieves us differently.
    Unless an employee makes it very clear how he/she is making up those hours/yom tovim etc., they will be judged accordingly in compensation, advancement and, more importantly, in the eyes of man, especially bbosses and coworkers (and so I ingrain in my firms frum associates).
    In our local town’s last election, the school budget was defeated. It was made known to our shul that the “blame” was placed on the orthodox community who didn’t send their kids there and didn’t care about quality education for others.
    As for crime, I’d say the front page “frum” criminals have done more for us than whether our street crime numbers are low.
    As R’YBS taught – it says veleh shmot in the present tense – a Jew should always feel the insecurity of just having arrived and being a stranger in a strange land and long to be home.
    KT

  286. “Rabbis Ovadia Yosef, Shlomo Amar approve IDF conversions”

    It is nice to see the application of Halacha le’Ma’aseh which seems strangely absent from so much of the pilpul I read here.

    “All conversions up until now will be authorized and in the future, conversions will be coordinated with the general conversion system,” under the auspices of the Chief Rabbinate, Religious Affairs Minister Yaakov Margi explained in an interview with Army Radio.

    Halacha must be relevant, as well as kosher, for it to have meaning.

  287. There was much that I didn’t agree with in the Cross Currents article. But I found the following interesting:

    “The weight of the [RCA] report, though not definitive, clearly positioned the RCA Halakhic Council well towards the camp that defines cardiac death as the criterion for life’s end. Thus, the other halakhic camp, which defines death as coming earlier at neurological death, brain stem death, emerged less authoritative by the report.”

  288. I thought the Cross Currents article was outrageous. The message was basically, other people are nice ad don’t care if we sponge off them, so don’t bring any attention to it. And comparing ourselves to Christian Scientists is not flattering at all. Tachlis, if we take organs and don’t give, we are parasites; I agree that we don’t need to call up the media to tell them that, but in our own internal discourse we are entitled to see this as a legitimate moral issue.

  289. I just spoke with Rav Schachter. He said that since organs will be removed from donors to any matches on a long list, any specific recipient is not causing the end of the donor’s life. If one recipient won’t accept, another will. Therefore, the recipient is not causing the end of the donor’s life.

    I add that, in other words, he agrees with R. Shlomo Zalman Auerbach.

  290. “How, then, can people speak with certainty how either one–or others among Chazal–would rule based on today’s medical knowledge? (And this question applies to other issues, as well.)”

    Obviously man is fallible and no one can ever be sure what Chazal would have ruled-but since we live on this imperfect world-our duty is to follow Halacha as determined each generation in good faith by those who both are knowledgeable in halacha and have absolute loyalty to the halachik system.

  291. I have read the Cross Currents article, and it was intellectually dishonest and repulsive.
    First, the RCA report was, as previously discussed on this group, intellectually dishonest.

    Second, the author has no real clue of what it means to work as a frum Jew in the outside world. eg, for schools – In North Jersey, a few years ago, the editorial page editor of the main North Jersey paper, Bergen Record, wrote an editorial (about the Tenafly eruv dispute) – that argued that discrimination against Orthodox Jews by the community was legitimate – because more Orthodox Jews mean less support for the public schools (and I have heard this from other places)

    For the workplace – working in a hospital, I know that all it takes is one guy who views his religious rights as being paramount – I not only want shabbat off, I have to get out by noon on Friday – and no, I don’t want to make up for it – to poison the atmosphere for everyone else. (Part of this is taht today people who grow up in the ORthodox community, and then go to YU, have never had meaningful interactions with the non Orthodox world as peers and supervisors, but that is adifferent dispute)

    Wrt the issues, it suggests that he has no clue about moral issues – and that he views that if something is halachic it is moral.

    He confuses what I have pointed out – the distinction between an individual patient, wrestling with impending death, willing to do something that he views as otherwise immoral – and a community arguing that they have a right to receive, without an obligation to give. One is understandable, even if not heroic – but is not somehting I would judge. The other is reprehensible.

    He argues that there is no such condemnation in the outside world – few people may be willing to publish it – but this sentiment exists broadly in the world that knows transplants and deals with the haredi community.

    Lastly, comparing this to a blood libel is beyond the pale (perhaps standard fare on Cross- Currents, but not something any halachically committed Jew should stomach), and requires broad condemnation.

  292. “So that leads me to the realization that it’s simply not logical to allow for the brain death issue to be paskened on a case-by-case basis by every local Mara Di’atra. It’s just not the same as a spoon-in-pot question. HKB”H gave the Torah to the Jewish People on condition that every spoon-in-pot question will be decided as the local Mara Di’atra determines. The status of the Cheftza depends on the Mara Di’atra’s decision. This is fundamentally different. Either the Gavra – the brain dead human being – exists as a legal entity, with all its ramifications, or he does not. Either his neshamah is here or his neshamah has departed. The Mara Di’atra cannot change it one way or another. A Mara Di’atra paskens “cheftza” issues; a Mara Di’atra does not pasken whether the “Gavra” exists”

    On first impression I agree-I would use the analogy that every Rab can be like the trier of fact-they determine the Halacha in specific cases when they are following the law that has either been determined-eg SA etc or is following the dictates of current generation leading Torah scholars. Similar to an appellate court which directs the trier of fact to determine the case not inconsistent with their opinion.

  293. “Either the Gavra – the brain dead human being – exists as a legal entity, with all its ramifications, or he does not. Either his neshamah is here or his neshamah has departed. The Mara Di’atra cannot change it one way or another. A Mara Di’atra paskens “cheftza” issues; a Mara Di’atra does not pasken whether the “Gavra” exists.”

    Fine, so not every mara di’atra should decide this “gavra” issue. But SOMEONE has to decide. Who should that be? If you say “the gedolim” or, as Mycroft puts it “leading Torah scholars” (who belongs in such a group is, of course, an interesting side question on itself) well, guess what; the gedolim don’t agree. So we’re back to the same problem, albeit one step up.

  294. “I just spoke with Rav Schachter. He said that since organs will be removed from donors to any matches on a long list, any specific recipient is not causing the end of the donor’s life. If one recipient won’t accept, another will. Therefore, the recipient is not causing the end of the donor’s life.”

    a) does this accurately reflect the reality of the transplant process?
    b) is “if you don’t do it then someone else will” halakhically or morally sound? i mean we’re talking retzicha here?

  295. a) I can’t comment on that
    b) I’m not in a position to argue with R. Schachter or R. Auerbach on what is halakhically sound. As to the morality, I’m not sure whether it is moral to say to someone on his death bed that halakhah and American law allows you to receive a life-saving organ donation but I don’t think you should.

  296. Let’s say the government of China announces that they are going to kill 10,000 prisoners this year in order to sell their organs. For $500 you can buy a lottery ticket and maybe be the lucky winner of a heart. Is it permitted to buy the ticket? They are going to kill the prisoners anyway, and if you don’t get the heart, then someone else will.

    According to RHS logic, this is permitted.

  297. “I’m not sure whether it is moral to say to someone on his death bed that halakhah and American law allows you to receive a life-saving organ donation but I don’t think you should.”

    How is it moral for such a person to receive a life-saving organ when he never would do the same for another person? Why should he go before another very ill person who was prepared to share his organs if he died.

    What is immoral is anti-brain death people receiving any organs when there are others also waiting in line.

  298. Yi’yasher kochakha, R. Student for the consultation with RHS and revealing its results.

    I am forced to agree with R’ Abbba that RHS’s lomdut is problematic: if I need a liver transplant, and if I refuse the liver transplant because I believe out of good conscience that I cannot cause someone else’s death to save my own life, then it will take at least several minutes longer for the hospital to find a different match on the list and then “safek murder” the recipient (if it is safek murder, which I suspect it is, but I am still waiting for that face-to-face conference between the 6 connoisseurs identified by the RCA). Thus, we are still talking safek geram retzichah of several minutes. This is essentially RMDT’s rejoinder to RHS in his HODS interview.

    RSZA’s point is that – in a society that runs by the Noahide Code – it’s not geram retzichah altogether, because the laws of retzichah are different for Noahides. But as we have seen, RMF had his doubts regarding RSZA’s lomdut. So, sevara says: neither donor nor recipient be.

  299. Let’s say the government of China announces that they are going to kill 10,000 prisoners this year in order to sell their organs. For $500 you can buy a lottery ticket and maybe be the lucky winner of a heart. Is it permitted to buy the ticket? They are going to kill the prisoners anyway, and if you don’t get the heart, then someone else will.

    According to RHS logic, this is permitted.

    And didn’t R. Elyashiv say that you can’t get organs in China, precisely because you encourage the killing of innocents. If everyone came to the “right” conclusion, that brain death was no good, then we would stop all organ transplants. In fact, if all the haredim decided to get off the organ donor lists, they would probably “kill” less people.

    But let’s be honest, the haredi position is that it is OK to allow non-Jews to kill each other if we benefit. What I don’t know is if the haredi position assumes that we should encourage non-Jews not to use brain death as a standard, or if it is fine for them to do this, since we benefit.

  300. Take a step back. You are a rabbi. You believe that it is assur for someone brain-dead to donate organs but it is halakhically mutar to receive such a donation. Your long-time shul president desperately needs a new heart. He asks you whether he can place himself on the list. What do you tell him? Halakhah says you can but you shouldn’t because it isn’t moral?

    I’m glad I don’t have to make those kinds of calls but please don’t pretend it’s a simple answer of “no, you can’t”. It’s an agonizing decision.

  301. from r. sack’s article:

    “There has been no U-turn.”

    did the london bet din ever permit brain stem death translplants (i thought the original article you posted said yes?)

    ” In addition, there are other organs that can be taken when the donor is clearly dead: for example, corneas”

    afaiu, he should have written “organ” in the singular, because corneas is the only example he could provide

  302. did the london bet din ever permit brain stem death translplants (i thought the original article you posted said yes?)

    Nishmas Avraham has a teshuvah to the London Beth Din from, I believe, RYS Elyashiv and possible RSZA forbidding brain stem death transplants.

  303. GIL:

    “I’m not in a position to argue with R. Schachter or R. Auerbach on what is halakhically sound.”

    i’m not asking you to argue. i’m just asking for an explanation. e.g., is there in halacha a principle that permits one to do what might ordinarily be forbidden if someone else is going to do it anyway?

  304. Presumably R. Sacks also believes that RSZA’s position is “morally untenable”. Why not put that in your headline?

    “For those for whom brainstem death is not the criterion of death, we may not take a vital organ from a patient still alive.”

  305. It is a machlokes between the Kesav Sofer and Mishneh La-Melekh whether lifnei iveir applies if it will be done be-issur anyway. I believe the consensus is to be lenient like the Kesav Sofer.

  306. Skeptic: His wording is unclear to me but, most importantly, he doesn’t criticize R. Shlomo Zalman Auerbach’s position. He merely states his own position. That is the big difference.

  307. Thank you and yi’yasher kochakhem, R’ Mycroft and R’ Joseph Kaplan, for your kind furthering of the proposition that adjudicating the brain death issue is beyond the purview of any Mara Di’atra. And now to further support the proposition:

    The source for the authority of a Mara Di’atra is the gemara in Eruvin 93b-94a which records a dispute between Rav and Shmuel regarding two adjacent courtyards (which were completely separated by an impermeable wall at the beginning of Shabbat and so whose eruvei chatzeirot were formulated separately) whose wall disappears on Shabbat. Rav holds that it is now forbidden to carry in the courtyard, whereas Shmuel holds it is permissible. The gemara proceeds to explain that this dispute is inferred from a story where Rav and Shmuel were both present in a courtyard when such a fact pattern materialized; Shmuel told people to keep carrying, and Rav turned his face away to express his displeasure. The gemara inquires why Rav satisfied himself with a symbolic protest of turning away; should not have Rav spoken up and immediately verbally announced his opposition to Shmuel’s decision? Answers the gemara, it was Shmuel’s place (‘Atreih Di’Shmuel Havah’), and so Rav – as a visitor – did not possess the authority to challenge Shmuel’s ruling. [Hence the term “Mara Di’atra”.]

    This concept also appears in the gemara in Chullin 53a-b, although in a more nebulous way. The gemara there records a dispute between Rav and Shmuel regarding a case where a predator animal (who possesses the theoretical capacity to claw kosher animals and hence render them treifot) is found silently standing among a group of kosher animals which are all braying. Rav holds that the animals are still non-treifot and may be eaten after shechitah; since we did not see the predator actually claw any animal, we assume the braying is simply out of fright, but that nothing dramatic happened. Shmuel holds that the animals are doubtfully treifot (and hence can never be eaten) because the circumstantial evidence of the braying indicates that the predator may have indeed clawed the animals (and rendered them treifot) when we were not looking. The gemara then proceeds to suggest that Rav retracted his position from the following episode: Rav was presented with a group of kosher birds that had been chirping while a carnivorous bird of prey stood silently among them (which is precisely the same question as before). Rav immediately sent the birds to Shmuel for adjudication, who promptly discarded the birds (in accordance with the latter’s position that such birds cannot be eaten). The gemara suggests that the fact that Rav delivered the birds to Shmuel demonstrates that Rav had changed his mind (-otherwise, why would Rav send the birds to Shmuel? Rav should have permitted the birds in accordance with Rav’s longstanding position). On this the gemara cryptically comments ‘Atreih Di’Shmuel Havah’ – the birds belonged to a Jew who lived in Shmuel’s place, and so Shmuel was the Mara Di’atra.

    Rashi’s first manuscript interpretation of the gemara is that the statement ‘Atreih Di’Shmuel Havah’ is part of the proof that Rav retracted his opinion. It means that Rav had changed his mind and now personally held that the birds are forbidden (just as Shmuel held). Thus, Rav sent the birds to Shmuel for Shmuel to enjoy the official honour of destroying the forbidden birds, since Shmuel was the Mara Di’atra. When two decisors – a Mara Di’atra and a visitor – both agree on the same conclusion, there is no purpose in the visitor pre-empting the the Mara Di’atra by issuing the verdict. As a matter of derekh eretz, the formal honour of issuing the verdict should be given to the Mara Di’atra. Rashi explains that – according to this manuscript of the gemara – if Rav had actually maintained his disagreement with Rav, and Rav would have maintained that the birds are still permissible, then Rav would have been obligated to refuse to send the birds to the Mara Di’atra, since Rav would have held that sending the birds to the Mara Di’atra will cause unnecessary financial loss to the owner of the birds. One does not submit to a Mara Di’atra when one disagrees with the Mara Di’atra. Since Rav did, in fact, send the birds to the Mara Di’atra, this proves that Rav had conceded to the Mara Di’atra.

    However, Rashi proceeds to reject this manuscript of the gemara, based on the parallel gemara in Eruvin 93b-94a discussed earlier. That gemara establishes that – quite the contrary – a visitor who disagrees with a Mara Di’atra is *not* allowed to announce his opposition to the Mara Di’atra’s ruling. Accordingly, Rashi’s second manuscript interpretation of the gemara (which he regards as definitive) is that when the gemara says ‘Atreih Di’Shmuel Havah’, it is saying that we deflect the proof that Rav conceded to Shmuel. In other words, Rav maintained his opposition to Shmuel, and Rav still held that the birds are permissible. But Rav was required to send the birds to Shmuel for adjudication because Shmuel was the Mara Di’atra. A visitor may never openly challenge the Mara Di’atra.

    In summary, then, the gemara in Eruvin (and also Chullin, as modified by Rashi to conform with the gemara in Eruvin) establishes that a visitor must always respect the sovereignty of the Mara Di’atra. The visitor may neither announce a more stringent ruling (as in the case of Eruvin) or a more lenient lenient ruling (as in the case of Chullin) than the Mara Di’atra. [Of course, the visitor may also personally maintain his opposition and politely manifest it by turning away his face from the Mara Di’atra, as Rav did in Eruvin 94a.]

    However, as the Ritva explains in his commentary on Eruvin 94a (s.v. Atra Di’Shmuel Hava), the sovereignty of a Mara Di’atra is limited to matters that require a Mara Di’atra, i.e. unresolved issues on which the Oral Torah grants the authority to the decisor to issue a pesak halakhah. Rav and Shmuel were the first Sages to ever debate the issues of the courtyard (in Eruvin 93b-94a). There was no compelling precedent to favour Rav’s position over Shmuel’s, and Shmuel was just as great as Rav in stature. [The same may be said regarding the debate in Chullin 53a-b.] Under such circumstances, the visitor may not challenge the Mara Di’atra. Continues the Ritva: but where the halakhic principle at hand is already established, and the visitor sees that the Mara Di’atra has failed to uphold the established halakhic principle, then the visitor should *not* be silent, but – quite the contrary – should take matters into his own hand to uphold the established halakhic principle, even if the Mara Di’atra is the visitor’s own Rabbi.

    Indeed, Ritva’s elucidation of the gemara comes as no surprise, as the gemara earlier in Eruvin 63a declares that – although it is normally prohibited for a student to render a halakhic decision in the presence of his Rabbi – if the Rabbi is failing to stop a transgression is progress, then the student is obligated to circumvent his Rabbi and to announce opposition to the transgression in progress.

    Thus, if one should assume that the status of brain death is a safek (and of course that’s a big “if”), then since it is established by the mishnah in Yoma 83a that a doubtfully existent human being is treated as alive for purposes of desecrating Shabbat (and, a fortiori, for purposes of avoiding killing him), then no Mara Di’atra anywhere in the world – not HaRav HaGa’on R. Hershel Schachter in New York and not HaRav HaGa’on R. Shlomo Moshe Amar in Jerusalem – enjoys the authority to contradict that principle.

  308. What do you think R. Sacks’ words mean? That someone for whom brainstem death is not the criterion of death *can* take vital organs from a patient?

  309. “Take a step back. You are a rabbi. You believe that it is assur for someone brain-dead to donate organs but it is halakhically mutar to receive such a donation. Your long-time shul president desperately needs a new heart. He asks you whether he can place himself on the list. What do you tell him? Halakhah says you can but you shouldn’t because it isn’t moral?”

    That is not what we are talking about. We are talking about the official beit din of England telling the world that Jews should not have anything to do with donating organs, but it is OK to take. That is what we are being told in America also.

    The issue is the communal policy some people are advocating, not a private conversation.

    Is there anything more distasteful for the world to hear than that the Jews are willing to take, but not to give?

  310. I see that many people are reluctant to accept what certain gedolim say in this matter. Is this an example of what Rav Kook was speaking about when he said that sometimes the people see things better than the rabbanim?

  311. Glatt some questions

    “I just spoke with Rav Schachter. He said that since organs will be removed from donors to any matches on a long list, any specific recipient is not causing the end of the donor’s life. If one recipient won’t accept, another will. Therefore, the recipient is not causing the end of the donor’s life.”

    a) does this accurately reflect the reality of the transplant process?
    b) is “if you don’t do it then someone else will” halakhically or morally sound? i mean we’re talking retzicha here?

    ——————————–
    a) Based on my understanding of the transplant process, the connection is specific and direct. An organ will only be harvested if a direct match is found. It is possible that a second match may not be found, in which case organs would not be harvested for transplant. Therfore, I do not understand the explanation by RHS.

    b)I cannot speak for anyone else’s morality, but I know it would be difficult for me to look myself in the mirror after using this kind of halachic logic of “if you don’t do it, somebody else will”.

  312. Binny: There is currently no communal policy in the US, partly but not exclusively because there is no consensus on the fundamental issues.

    Glatt: a) “It is possible that a second match may not be found” is not sufficient. Tell me what usually happens.

    b) Now imagine that you don’t hold from brain death. Your conclusion might be different.

  313. Glatt: The proponents for brain death keep saying that there are usually multiple matches and if doctors think Orthodox Jews don’t give organs then they will simply give to someone else on the list. That’s what I’ve been hearing. But I repeat that I’m no expert.

  314. >How is it moral for such a person to receive a life-saving organ when he never would do the same for another person? Why should he go before another very ill person who was prepared to share his organs if he died.

    This is the way it is and the way it’s going to be anyway. Since when do organ recipients receive priority if they signed as donors? Is everyone an organ donor? Hardly.

    I don’t think anyone will condemn the individual Jew who is simply a part of his community, but as a community, how do we consider something murder yet that it is morally acceptable to benefit from it? It isn’t even a compromise with our principles?

  315. ” Since when do organ recipients receive priority if they signed as donors? ”

    this is what a recently-passed law in israel states

  316. >Take a step back. You are a rabbi. You believe that it is assur for someone brain-dead to donate organs but it is halakhically mutar to receive such a donation. Your long-time shul president desperately needs a new heart. He asks you whether he can place himself on the list. What do you tell him? Halakhah says you can but you shouldn’t because it isn’t moral?

    >I’m glad I don’t have to make those kinds of calls but please don’t pretend it’s a simple answer of “no, you can’t”. It’s an agonizing decision.

    For sure. It’s not a simple thing. It’s not only a person’s own life, it’s their family, people who depend upon them, etc.

    But we can’t even admit to ourselves that it’s a problem? We have the right to “do whatever we need to” to survive but also reserve the right to tell ourselves that it isn’t us doing what we needed to, but just a completely unambiguously moral choice? Just like taking antibiotics, no sweat. Why should we grant ourselves the right to call it retzicha and then not admit that it is in fact that?

  317. >this is what a recently-passed law in israel states

    And why is that? Is it not because there’s a shortage of donors because a lot of Israelis think its retzicha?

  318. Guest: Why should we grant ourselves the right to call it retzicha and then not admit that it is in fact that?

    I have no idea what you mean here.

  319. >I have no idea what you mean here.

    You’re saying that we have the right to consider it murder, but we shouldn’t also have to consider it a morally problematic decision to receive them. I know that everyone wants to have their cake and eat it, but who says that our right?

  320. R’ Gil, I see many people hung up on the assumption that organs are only harvested from donors if an exact match exists.

    This leads them to get stuck in the moral problem they keep mentioning.

    This assumption, however, is simply not true.

    A rabbi friend of mine sent me the following e-mail yesterday:

    “The organization which oversees all organ transplants in the USA is called UNOS (see http://www.unos.org/).

    Their FAQ page can be found here: http://www.transplantliving.org/beforethetransplant/qa.aspx#matchRight

    See these 3 Q & A’s there:
    _________________________

    How long will I have to wait?

    There is no set amount of time, and there is no way to know how long, a patient must wait to receive a donor organ. Factors that affect waiting times are patient medical status, the availability of donors in the local area and the level of match between the donor and recipient.

    How will they find the right donor for me?

    When a transplant hospital adds you to the waiting list, it is placed in a pool of names. When an organ donor becomes available, all the patients in the pool are compared to that donor. Factors such as medical urgency, time spent on the waiting list, organ size, blood type and genetic makeup are considered. The organ is offered first to the candidate that is the best match.

    How are organs distributed?

    The organs are distributed locally first, and if no match is found they are then offered regionally, and then nationally, until a recipient is found. Every attempt is made to place donor organs.
    ______________________________

    This fits with what I have been told by several cardiologists.

    There are far more potential recipients than there are donors of hearts.

    While the best case scenario is that donor’s heart be a 100% perfect fit for the recipient, that is rarely the case.

    The heart usually ends up being as close a fit as possible (thus, some patients will require more anti-rejection drugs than others).

    Within each blood type, there is a range of patients who could be potential candidates for that heart.

    UNOS decides who the organ goes to based on compatibility, illness, time accrued on the waiting list, location, etc.

    No donor heart will ever go to waste – as they are in such short supply VS. the potential recipients, and somewhere in the USA (if not the local UNOS region) a match can be found.

    As such, whether a Jewish name appears on a waiting list or not, the person who signed up to be a donor will have his/heart harvested (assuming they are still a candidate to donate when they are declared brain-dead).

    While UNOS will determine which patient on the waiting list will get the heart before it is removed, that heart would have been removed regardless of whether or not the Jewish recipient was on the list.

    I hope this helps in sorting some of this out.”

  321. >R’ Gil, I see many people hung up on the assumption that organs are only harvested from donors if an exact match exists.

    This leads them to get stuck in the moral problem they keep mentioning.

    The moral problem is that we say it’s murder yet instead of recoiling in horror at the corruption of our sinful society and assume that God ought to send another flood except for his promise not to, we don’t lobby to stop this murder, we don’t try to cultivate political contacts who agree. We do none of these things, which many of us do regarding abortion. Instead we chalk it up to a quirk of halacha and expect neither that the goyim will stop harvesting organs nor that we will stop receiving them if we need them, lo alenu.

  322. I see that no one has answered my questions

    Let’s say the government of China announces that they are going to murder 10,000 political prisonders this year in order to sell their organs. For $500 you can buy a lottery ticket and maybe be the lucky winner of a heart. Is it permitted to buy the ticket? They are going to kill the prisoners anyway, and if you don’t get the heart, then someone else will.

    According to RHS’s logic, it is permitted to buy a lottery ticket.

  323. Someone should ask RHS. He’s at the OU convention this weekend so anyone there can ask him privately (I’m only going on Sunday and will be working for most of the day).

  324. Yi’yasher kochakha, R’ Alain S., for this treasury of knowledge, which greatly enlightens the subject. But RMDT possesses a cogent rejoinder: by my going to the hospital to accept the heart, it is geram safek retzichah of the donor for several minutes, because if I would refuse to go to the hospital to accept the heart, then it would take the hospital administration several minutes longer to find the next recipient. Even safek geram retzichah of several minutes is yehareg vi’al ya’avor.

    Thus, presumably, a Jew can register for a heart, but when called telephoned by UNOS to receive the heart, the Jew is obligated to stall indefinitely and never materialize in hospital to receive the heart (-unless the 6 parties identified by the RCA will arrive at a different conclusion in their emergency face-to-face meeting).

  325. Piskei halacha cannot be made without understanding their ramifications. Kal va’chomer when there are gedolai Torah who have come down on both sides of this issue.

    In all the debate, no one has responded to the issue I have twice raised. We have an existence proof in Israel of the ramifications of the chumra position. And it is not pretty.

    “According to organ trade expert Nancy Scheper-Hughes of Organ Watch (in 2001), Israel had become a “pariah” in the organ transplant world. The lack of donations due to Jewish custom heightened the disparity between the supply and demand of organs. This led to the popularity of “transplant tourism” in which patients in need of organs travel to medical centres abroad to receive organs.[11] Prior to the 2008 law prohibiting it, some Israeli organ brokers advertised on the radio and in newspapers. Kidneys, which are the most traded organ, may fetch up to $150,000 for brokers who usually pay the donors far less.[10]”

    The logic chain is:

    a) organ transplants are a proven way to save lives; but,
    b) in Israel, there is insufficient supply due to perception of halachic rules & customs (mixed in with some folk superstition)
    c) so, Jews in Israel will go elsewhere to receive a transplant and save their own