The recent “Rabbinic Statement Regarding Organ Donation and Brain Death” signed by several score “Orthodox rabbis and rashei yeshiva” is decidedly unorthodox in its approach to the halachic process. In fact, it makes a mockery of that process, by asking other rabbis to accept one particular halachic view regarding a complex issue pertaining to matters of life and death on the grounds that the times, in the signatories’ estimation, require a certain result. The statement, signed by congregational and campus rabbis and chaplains, duly acknowledges the halachic controversy over “brainstem death” – the diagnosis that a patient’s brainstem has irreversibly ceased functioning. But it goes on to note that forbidding the removal of vital organs from “brain dead” patients – the considered opinion of major halachic authorities of past years and the present – would have “critical implications for organ donation.” And so, the statement’s signers “strongly recommend that rabbis who are rendering decisions for their laity on this matter demonstrate a strong predisposition to accept” the alternative view. Or, if their consciences do not allow them to do so, that they at least “refer their laity to rabbis” who have no such reservations.

Statement re Statement re Brain Death

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This statement appeared in today’s HaModia:

12 Shevat, 5771
January 17, 2011

Statement from Agudath Israel of America

The recent “Rabbinic Statement Regarding Organ Donation and Brain Death” signed by several score “Orthodox rabbis and rashei yeshiva” is decidedly unorthodox in its approach to the halachic process. In fact, it makes a mockery of that process, by asking other rabbis to accept one particular halachic view regarding a complex issue pertaining to matters of life and death on the grounds that the times, in the signatories’ estimation, require a certain result.

The statement, signed by congregational and campus rabbis and chaplains, duly acknowledges the halachic controversy over “brainstem death” – the diagnosis that a patient’s brainstem has irreversibly ceased functioning. But it goes on to note that forbidding the removal of vital organs from “brain dead” patients – the considered opinion of major halachic authorities of past years and the present – would have “critical implications for organ donation.” And so, the statement’s signers “strongly recommend that rabbis who are rendering decisions for their laity on this matter demonstrate a strong predisposition to accept” the alternative view. Or, if their consciences do not allow them to do so, that they at least “refer their laity to rabbis” who have no such reservations.

For anyone, rabbi or layman, to decide that a perceived outcome should determine what halachic approach to take is something usually associated with Jewish movements outside of Orthodoxy.

Organ donation can and does save lives. Halachic authorities have ruled that, under certain circumstances and with proper safeguards, it is permissible and indeed laudable to be a live donor, and to bequeath organs after death. But defining death is a crucial halachic matter, not one to be “decided” on the basis of what some consider a societal need.

Compounding the statement’s offensive embrace of a halachic position based on an extra-halachic rationale is its derision of those who take “a restrictive position regarding donating organs and a permissive position regarding receiving organs.” That halachic position, held by a majority of major poskim today, is derided by the statement as “morally untenable,” and “must thus be unequivocally rejected by Jews at the individual and the communal level.”

No. What must be unequivocally rejected by Jews, at least those who care for the honor of Torah, are attempts to manufacture “halacha” to personal specifications and the disparagement of true halachic authorities.

About Gil Student

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

288 comments

  1. Where is the like/dislike function? I wanted to leave this with a big fat juicy thumbs down.

  2. Pot. Kettle. Black.

    “Compounding the statement’s offensive embrace of a halachic position based on an extra-halachic rationale.”

    Have the authors of this statement read much about the history of Hungarian ultra-orthodoxy? EVERY SINGLE posek bases their pesakim on ‘extra-halachic’ rationales – and that is a good thing.

    As Rav Soloveitchik writes,
    “the halakhic inquiry, like any other cognitive theoretical performance, does not start out from the point of absolute zero as to sentimental attitudes and value judgments. There always exists in the mind of the researcher an ethico-axiological background against which the contours of the subject matter in question stand out more clearly.”

  3. >Have the authors of this statement read much about the history of Hungarian ultra-orthodoxy?

    Forget about Hungary, have they reflected much on themselves?

  4. R’ Gil,
    Once again you immediately turn to a meta-halakhic conversation without discussing the actual issues. The letter signed by a number of rabbis, from my understanding, was trying to convey something quite simple: there are poskim on both sides of the brain-dead issue. Being that we are dealing with a pikuach nefesh situation, does it not make sense halakhically to be somech on the opinions that see brain-dead as being rendering the person no longer alive. At this point, one could ask why the does pikuach nefesh of the sick person in need of a transplant overide the pikuach nefesh of the maybe-still-alive-probably-never-going-to-wake-up person in a coma? Now thats an interesting question worth discussing! Much more interesting than accusing rabbis of writing something in a style that is “usually associated with movements outisde of orthodoxy.
    Avi

  5. Anyone who dealt with Rav Moshe and Rav Shlomo Zalman knows that their starting point when answering a shailah was, “What can I do, within the halachic process, to help this person?”

    That human element is precisely how the approach of the posek differs from that of those who are just “learning up a suggya.”

    It happens that, in the case of transplants, RSZA’s position at the time was that as much as he wanted to find a heter for transplants, he could not. But to deny that this is a legitimate starting point shows ignorance of how the great poskim have historically approached their task.

    (This is not to say that I support every aspect of the Chovivei-sponsored Rabbinnic statement being critiqued here by Aggudah — I do not. But the Aggudah statement is equally problematic, albeit for other reasons.)

  6. Just wondering, if this “Statement” was about a certain “Rabbi” who allows women to uncover their hair would you post it? Whenever we see a posting by them it is when they agree with you, like with R Weiss. It’s silly. Stop making it that they are allies, when they aren’t in any way. Before you say that this is “news”, just remember it would be news if they talked the same way about R Broyde.

  7. I posted this because it was an opportunity to scoop all the Jewish news websites, it is interesting and newsworthy, and I don’t find it objectionable.

  8. “In 1932, the following anonymous placard was distributed in Orthodox synagogues throughout the east coast: ‘We Jews of New York discovered that in the Yeshiva Rabbi Isaac Elchanan … there is a nest of atheism and Apikursus (denial of God). Therefore we do warn and announce, that you should not send your children or the children of your acquaintances into this Yeshiva until you will find out what is going on in the Yeshiva, who is responsible for the terrible situation, and how it is to be remedied.’ […] Despite the presence of prominent scholars in RIETS, men whose abilities were acknowledged by all who moved within the orbit of talmudic learning, opposition to Yeshiva’s philosophy was constant. Sometimes it was rancorous. When the famed head of the yeshiva in Baranowicz, Rabbi Elchonon Wasserman, visited the United States, he praised the more traditional institution, Mesivta Torah Vodaath, and condemned Yeshiva College. He refused, despite personal pleas by Dr. Revel, to set foot in the building. Rabbi Wasserman’s view was that although philosophy had been studied in the past by gedolim (giants in scholarship) such as the Vilna Gaon, in these times there were no individuals of sufficient stature to study such subjects without risking their faith.” From Helmreich’s “The world of the yeshiva: an intimate portrait of Orthodox Jewry” (http://tinyurl.com/237s8p6).

  9. IH: Therefore nothing is ever objectionable?

  10. No, but Moynihan’s observation is apt: “The Iron Law of Emulation took hold. Organizations in conflict become like one another.”

  11. And, once again, th responders clearly did not read the original statement very carefully. The “morally untenable” position is not being more restrictive about organ donation. The statement on top says that is a valid halachic position. In the eyes of the undersigned it is clearly not the ideal one, as they see their position as (to borrow a line from the Brisker Rav) more machmir on pikuach nefesh. However, being restrictive about organ donation is always acknowledged to be a valid position. Being restrictive in matters of donation, but permissive in matters of acceptance – accepting without being willing to donate is what is morally untenable. If one is being machmir about giving, one should be machmir about receiving. The statement does not speak out against being restrictive in one’s attitudes towards death and organ donations, only hypocrisy.
    Perhaps the wording was confusing, but it would be nice if those rabbis who choose to respond could look at the statement for what it is and not the straw men they have turned it into – a very real attempt to make it as easy as possible within the halachic system to save a human life.

  12. And if the position is so objectionable, then surely the RCA would not have backed down on the guidance it received from its Va’ad Halacha (and ignored them since 1992).

    I find it ironic that you have another thread running on the future of Orthodoxy, when this debate seems to encapsulate the proverbial elephant in the room.

  13. Gil, you quote
    ” strongly recommend that rabbis who are rendering decisions for their laity on this matter demonstrate a strong predisposition to accept” the alternative view. Or, if their consciences do not allow them to do so, that they at least “refer their laity to rabbis ”

    but leave out the preceding phrase
    “In light of the serious moral issues and profound lifesaving potential presented by the possibility of organ donation,”.

    Clearly, their inclination to reach a certain conclusion is motivated by the values of morality and life, which of course are the strongest of halachic considerations.

  14. lawrence kaplan

    Gil: The question is not why you posted the Agudah statement, but wby you gave it a separate post of its own. You didn’t give the
    “Rabbinic Statement Regarding Brain Death and Organ Donation” a separate post of its own.

  15. I read the letter as calling for Pask that takes public policy and perception into account – not demanding a particular outcome. This is how responsible rabbis pasken when they do so on a communal basis.

    Prominent rabbis need to recognize and take responsibility for public and policy outcomes of their halakhic decisions and statements and act accordingly. A psak that leads to money laundering or tax fraud and or chillul hashem is a bad psak no matter how firmly it is based in sound “autonomous” halakhic reasoning. Psak that leads to the degree of organ trafficking now seen in Israel is bad psak. Psak that leads to the perception that Jews can treat non-Jews as spare parts in a one-way relationship is bad psak.

    This is something important that the signatories to that letter get. And the Agudah would be wise to hear the truth regardless of where it comes from.

  16. Dr. Kaplan: Because it is not otherwise available online. If it was, I would have just linked to it.

  17. MJ: Psak that leads to the perception that Jews can treat non-Jews as spare parts in a one-way relationship is bad psak.

    The only reason such a perception exists is because certain proponents of brain death have lied to the media.

  18. It’s quite amusing that agudah is speaking out against rabbis signing on a petition that states only one side…

    A few months ago there was in Israel something publicized as a gathering where the gedolim will discuss this issue. Interestingly enough ALL the gedolim had the same opinion. Here it is: http://www.bhol.co.il/Article.aspx?id=19506

  19. “certain proponents of brain death have lied to the media”

    Without details, this is an impossible assertion to validate. Or, are you taking the bold step of saying the Rabbis that signed this statement have lied, which is a very serious charge indeed?

  20. Firstly, I want to note that the Agudath Israel Moetzet Gedolei Torah are all tzaddikim gemurim, and I would never dare speak before them on even the slightest calligraphic detail of how to design the “yud” letter (-the proverbial kotzo shel yud).

    Secondly, as mentioned in a previous comment on a previous forum, I have great reverence for YCT Rosh Yeshiva R. Dov Linzer, and I see no theological contradiction between honouring the Agudath Israel and honouring YCT. We are commanded by HKB”H to fear all Orthodox Jewish talmidei chakhamim, as per the derashah of Rabbi Akiva in Pesachim 22b. Evidently, this gemara includes both the talmidei chakhamim affiliated with the Agudath Israel and the talmidei chakhamim who are affiliated with Yeshivat Chovevei Torah. Obviously, there are many many more outstanding Torah luminaries and talmidei chakhamim affiliated with the Agudath Israel than with YCT, because the Agudath Israel is much better historically established, with a stellar track-record of service to world Jewry. But sometimes greatness can be also manifest in a small up-start Yeshivah, as was the original case with Lakewood in the 1940’s, which only had a handful of disciples studying under R. Aharaon Kotler. [Today it has ballooned, B”H, to thousands of diligent students, ashreinu shezakhinu likakh.] So I maintain that Pesachim 22b requires us to honour the scholars of both Agudath Israel and YCT. There is no competition between the two, only mutual strengthening of one another with Torah greatness.

    Thirdly, I would note that – by virtue of Agudath Israel’s own statement – it is now presumably forbidden for any Jew anywhere in the world to register for organs. Since the Agudath Israel has (-correctly so, not that the Agudath Israel would require S. Spira’s endorsement) directed us to follow the “true halachic authorities”, a category that undeniably includes RMF and RSZA, and since we have seen with the shakla vitarya conducted on this website that RMF and RSZA refuted one another’s reasoning to permit accepting organs (and likewise RSZA’s refuted R. Aharon Soloveitchik’s reasoning to permit accepting organs), it presumably emerges that as a matter of avoiding geram safek retzichah, no one may register for organs.

    The conclusion that no one may register for organs should not arrive as a surprise, when one considers the following responsum of RSZA (Shulchan Shelomoh, Erkei Refu’ah II, p. 32):

    “Regarding brain death we do not have any masoret, and since this is a matter that is invisible to the eyes we cannot rely on medical science to establish the patient as definitely dead. And that which the physician say ‘barei li (it is certain to me) that I can rely on science’ is astonishing, because the concept of ‘bari li’ is only relevant to an issue which concerns the relationship between a human and his Creator, but not to spill someone else’s blood”.

    Likewise, for thousands of years, we have never had a masoret of registering for organs. We do not have a definite masoret that the laws of homicide are different for Noahides than for Jews (a point of contention between RMF and RSZA), and so we simply cannot register.

    But, of course, I am incompetent to render any such decision. The Gedolim must meet face-to-face to arrive at a unanimous consensus on these issues, for which all of humanity looks for moral guidance. Since the Agudath Israel has expressed (rightfully so) great concern over the urgent piku’ach nefesh issue of the definition of death, my recommendation would be for the Agudath Israel to invite the 6 Gedolei Torah parties identified by the recent RCA statement as the connoisseurs on the definition of a Gavra, for a closed-door meeting (where honour is given to all 6 Gedolei Torah parties) to resolve the issues and offer definitive halakhic guidance. “A conference of the righteous is beneficial for them and beneficial for the universe” (Sanhedrin 71b). It will be a wonderful Kiddush Hashem.

  21. The Agudah statement is much more balanced than the Rabbi’s statement regarding the proper psak. They do not promote any psak and as far as I know have never in the past.

  22. > my recommendation would be for the Agudath Israel to invite the 6 Gedolei Torah parties identified by the recent RCA statement as the connoisseurs on the definition of a Gavra, for a closed-door meeting (where honour is given to all 6 Gedolei Torah parties) to resolve the issues and offer definitive halakhic guidance.

    Great idea. But to quote my (internet) Rebbe, R’ Aharon Rakeffet Shlit”a, I’ll be a chinaman dancing on the moon before this ever happens.

  23. lawrence kaplan

    Rabbi Spira: Your learning is both impressive and enlightening, as is your independent halakhic judgement. But don’t you realize that your wish that the gedolim you mention should get together and meet (forget about their being locked in a room, a la a jury) until they issue a unanimous judgment, however desirable it may be in theory, will NEVER come to pass?

  24. While not patently offensive, the letter is very condescending “The statement, signed by congregational and campus rabbis and chaplains”. They forgot to mention and at least one former President of the RCA. It is clear that they are trying to draw a distinction because these people are just congregational and campus rabbis and not “recognized Gadolim hador”.

    The fact that they totally missed the point of the letter is of course besides the point. They had to give the finger to these well respected Jewish leaders. They just had to.

  25. These ongoing threads of discussion come back to the question of how/when the halachic process is used. This caused me to re-read an article I recently read in new light.

    The relevant 2 passages are:

    “Since the rabbinic period, normative Judaism has been halakhic. If the ‘defenders of the faith’ of our generation think that they meet the challenges of modernity when they advocate ideologies that undermine halakha and the halakhic process, they are mistaken. Such ideological stances do not meet the challenges of modernity, they fail to meet its challenges. Among normative Jews of the past, the challenges of ‘modernity’ were met by Judaizing modernity. That process took place primarily through demonstration of the possibility of incorporating new ideas or ideologies into Judaism without undermining the inviolable primacy of the halakhic system.

    […]

    It is the responsibility of halakhists to Judaize modernity halakhically in a cogent and defensible way (that is without allowing themselves to fall into the pitfalls that result from confusing history with halakha). And it is the responsibility of apologists (in the very best sense of that word) to provide the ideological and philosophical underpinnings that will allow a modern Jew to meet the challenges of modernity by Judaizing modernity, without falling into the pitfalls that result from confusing Judaizing modernity with modernizing Judaism. But both halakhists and apologists must remember that in those functions they are not, and ought not to be, dispassionate students of history. They are instead active and passionate participants in the ongoing and normative process of Judaizing modernity authentically, both legally and intellectually.”

    Thoughts?

  26. IH: Thank you for confirming this statement’s point about the similarities with the Conservative movement. Please share with everyone the source of your quote.

  27. The only reason such a perception exists is because certain proponents of brain death have lied to the media.

    This perception is significantly antecedent to the present discussion. Israel as a country has a rate of domestic donation, even for live donors, that is shockingly low and a rate of transplant tourism that is shockingly high. The way that RSZA’s psak has been understood -leaving aside the manner in which you parsed it-fits with that narrative.

  28. Rabbi Student, putting labels aside, I am trying to understand the difference between Rabbi Roth’s philopsophy and those of Modern and Centrist Orthodoxy (using Rabbi Brill’s definition). Thanks.

  29. The letter was also signed by several Rashei Yeshiva- unacknowledged by the agudah.

    This letter is very offensive.
    can’t we focus on the serious issues at stake?
    Also, I realy find the psak of “dont give but take” very disturbing to me. I dont want lomdus, I want some one to make me feel like this psak is moral. can some one do that?

  30. Has anyone asked a proponent of brain death what his position is on receiving a life-saving organ donation from someone who is brain damaged (category III here: http://en.wikipedia.org/wiki/Non-heart-beating_donation )?

  31. “I dont want lomdus, I want some one to make me feel like this psak is moral. can some one do that?”

    Anybody? Anybody?

  32. Shalom Aleikhem Rebbi U’Mori, R. Kaplan,

    I thank my Rebbi for his very kind words. Vihamevarekh yibarekh.

    This is a supremely important question that the Rav has asked me, and I don’t know the answer. As the gemara in Berakhot 10a derives from Ecclesiastes 8:1, sometimes it is logistically challenging to arrange a meeting between different tzaddikim, but with the intervention of HKB”H such a meeting can eventually take place, as occurred in the meeting between Yesha’yahu and Chizkiyahu.

    Parenthetically, all these “I don’t know the answer” responses I’ve been giving (besides reflecting my inadequate study, for which I sincerely repent) are also actually consistent with the most up-to-date scientific discoveries. Heisenberg propounded the Uncertainty Principle, which is central to quantum physics. Thus, the fact that (if one is to agree with S. Spira’s halakhic analysis) a brain dead patient is doubtfully dead, doubtfully alive – and likewise that – out of doubt to avoid geram retzichah – no Jew may ever register for organs, reflects the greatest degree of scientific sophistication possible. As RMDT correctly expressed in his 2006 lecture on the definition of death, the sugya of brain death demonstrates that “Hafokh bah va-hafokh bah dikhulah bah” (Pirkei Avot ch. 5), all the sciences are contained within the Torah. [And the sciences assuredly include the Uncertainty Principle.]
    http://www.yutorah.org/lectures/lecture.cfm/716090/Rabbi_Moshe_D._Tendler/Time_of_Death:_Brain_Death_in_Jewish_Law

    I do think, in any event, that based on the three halakhic sources of:

    (a) the mishnah in Rosh Hashanah 23b that witnesses are sequestered (in very commodious circumstances with lots of food to eat) until a decision to declare Rosh Chodesh is reached
    (b) the gemara in Makkot 11a that David compelled Achitofel to give him a halakhic analysis on a life-and-death issue
    (c) R. Bleich’s article “Torture and the Ticking Time Bomb” (Tradition 39:4, Winter 2006), that we can place others in a slightly awkward position in order to encourage them to produce information that leads to the saving of lives…

    … that it is halakhically permissible and proper for Yeshiva University President Richard Joel, for RCA President R. Moshe Kletenik, and for the Israel’s supreme court chief of justice to grant a temporary vacation to RHS, RMW, RJDB, RMDT, RGDS and the two Israeli Chief Rabbis (all 7 of whom are Gedolei Yisra’el and Tzaddikim Gemurim) until they have enjoyed the opportunity to meet face-to-face and come to a unanimous consensus.

  33. Gil,
    You mean does this position on brain death entail that lack of circulation is no longer a sufficient condition for death? Or are you more concerned about the NHB donor guidelines in terms of the time required to establish death and transplant oriented interventions on the body prior to withdrawal of life support?

    There is no universally established protocol for NHB harvesting so rendering an across the board psak might be difficult (you should look at the IOM report, not Wikipedia for an overview). Clearly where halakhah would allow withdrawal of life support there is some point at which the donor is halakhicly dead l’chol ha’deot and one could procure organs. The question is whether the time lapse would render those organs unusable.

  34. “Anybody? Anybody?”

    Enough words have been expended to tentitively conclude that no one has been able to defend the morally indefensible without resorting to verbal gymastics, selective quotations and name calling.

    The bigger question is what does this mean to the future of Orthodoxy? The RCA backed down, indicating that it does not want to see this become the issues that splits Orthodoxy apart. But, Rabbi Student’s comment above (3:01pm) that used the word “lied” (not to mention “similarities with the Conservative movement”) indicates this may still become the issue that causes a schism.

    It seems this is the 2nd time the Va’ad Halacha has been overruled by their parent body; if they felt strongly enough about it, presumably, they could resign or bolt. And emotions are running high.

  35. MJ: I was referring to those who are not halakhically dead but their life support is withdrawn to allow for organ donation. Wikipedia is an easy reference for laymen, even if flawed. Would R. Nachum Rabinovich or R. Moshe D. Tendler allow a Jew to receive an organ donation from someone still “on intensive care units with non-survivable injuries who have treatment withdrawn” and the transplant team “retrieve organs after cardiac arrest has occurred”.

    Moshe: Also, I realy find the psak of “dont give but take” very disturbing to me. I dont want lomdus, I want some one to make me feel like this psak is moral. can some one do that?

    Since people have been throwing around arguments, I am not sure what moral problem is bothering you. The parasites problem? Allowing murder? Something else? You can’t expect anyone to respond to your unarticulated concern.

    IH: The Vaad Halacha never reached a conclusion. That is clear from the title page alone! “This Study is Designed to Assist Members of the RCA in the Process of Psak Halacha and is itself not Intended as a Formal Ruling.” Therefore, the Vaad Halacha has not been overrulled. Again, if proponents of Brain Death have been lying to a gullible media, that is not the Vaad Halacha’s fault.

  36. I think it’s worth noting that whatever the merits of this statement, it is not going to affect the vast majority of people who give weight to the authorities who signed the original “Rabbinic Statement.” In that sense, I suppose I sympathize with Rabbi Spira’s idealism (while acknowledging Dr. Kaplan’s realism).

  37. Gil,

    Some major poskim allow for the withdrawal of life support for people with certain terminal conditions – some of which are candidates for being a NHB donor. The NHB donor protocol specifies just that – that the decision for withdrawal of support was arrived at independently of considerations of organ donation and that a requirement of cardiac death is met. The question in such cases is only at what point after the cessation of heartbeat and respiration halakhah considers a person dead. This is the same question that contemporary ethicists have been asking and there is no consensus. However, since legally a doctor can declare a patient without heartbeat dead, there is no need to expand the legal definition of death to accommodate NHB donation as there was for the adoption of the Harvard Criteria. It has therefore engendered a good deal less public debate.

    So there is a theoretical NHB donor protocol that will satisfy a number of poskim who do not accept brain death (aside from the problem of prepping the donor prior to death – which is a serious issue) . The question is only whether that protocol is medically viable or the organs are too necrotic to transplant, and will depend on whether any interventions are allowed prior to death and how much time must elapse after cardiac arrest to consider the person halakhicly dead. My guess – I have not read any shu’tim on the issue- is that waiting long enough such that no possibility of resuscitation is remotely possible would be too long to harvest viable organs.

    The NHB donor question is an independent halakhic question from the question of brain death and a posek who rejects brain death might accept a particular NHB protocol while another who accepts brain death might reject that protocol depending on what criteria are needed to establish cardiac death alone.

  38. MJ: The details you provide are welcome but you seem to be missing the point. The same dilemma that faces a rabbi who rejects brain death regarding receiving an organ donation from a brain dead also faces a rabbi who rejects (some or all) NHB protocols. The question is whether such a rabbi would advise a potential recipient to refuse the organ.

  39. “You can’t expect anyone to respond to your unarticulated concern.”

    Gil, are you really confused on this point?

    The moral difficulty is that the organ recipient is part of a conspiracy to murder the donor and is benefiting from the fruits of that murder, according to those who reject brain death.

  40. Skeptic: That is one possible concern. I want to know if that is what is bothering Moshe.

  41. Gil,

    In the meantime do you have a moral argument for that concern? Might as well clear that one up before facing the others.

  42. “The Vaad Halacha never reached a conclusion.”

    > Hirhurim on January 16, 2011 at 12:48 pm
    > No, the first time was around 1992 when the Vaad Halacha voted
    > for that position

    And, again. are you accusing Rabbi Riskin et al. who signed http://organdonationstatement.blogspot.com/ as “lying to a gullible media”?

  43. I meant the current Vaad Halacha. I thought that was clear in the context.

    No, I am not saying that this Statement was an act of lying. I meant activists who spoke with and are quoted in the media.

  44. So, the issue on the table, remains:

    “To adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable.”

    All the words that have flowed have not ameliorated this issue that many of us view as an indefensible moral position (irrespective of whether it can be justified through halachic disputation, about which reasonable people can disagree).

  45. Compounding the statement’s offensive embrace of a halachic position based on an extra-halachic rationale
    ============================================
    At least they got the right issue. R’J got it right by quoting the Rav from C-C-C – someone making the above statement is flying in the face of the halachic process – Dracheha darchei noam is one of the “tie breakers” available not just to amoraim trying to determine the meaning of a pasuk but also poskim facing a call between alternative non-slam dunk positions. All the name calling in the world won’t change that.
    KT

  46. r’ gil – when you said regarding to the agudah statement: “and I don’t find it objectionable.”

    do agree with the statement and all its details? that it is factually correct ?

  47. “Again, if proponents of Brain Death have been lying to a gullible media, that is not the Vaad Halacha’s fault.”

    What was the alleged lie? That the Vaad Halacha took a position in the paper? Well, they did, and saying they didn’t in the title page is simply CYA. Anybody who reads the paper and doesn’t believe that its authors are arguing against brain death are fooling themselves, perhaps intentionally, perhaps not. You want to read a paper that knows how to present a balanced analysis of this highly charged issue, read R. Breitowitz’s. The Vaad’s, as I’ve said before, was a brief masquerading as a memo. And, Gil, even though it’s your blog and you can, therefore, say what you like, I found your use of the word “lying” to be despicable.

  48. The question is whether such a rabbi would advise a potential recipient to refuse the organ.

    Do you have any reason to suspect that the rabbis that you mention condone receiving but not giving.

  49. lawrence kaplan

    Joseph: You’ve been sparring with Steve Brizel too much!!! What is CYA?

  50. Prof. Kaplan,
    Your brother has a good reason for not spelling out the common acronym you asked about. It would probably be censored out. But the first word stands for “cover” and the second for “your”.

  51. Cyberdov: Even though they left out the preceding clause, which gives the reason, that Agudah statement is still accurate on this point.

    Joseph Kaplan: What was the alleged lie? That the Vaad Halacha took a position in the paper? Well, they did, and saying they didn’t in the title page is simply CYA.

    You keep saying that but it’s not correct. They wrote a paper that cavorts one side. You can call it biased if you want. But they consciously did not issue a ruling or declare a policy. It is a research paper. Compare it in style and tone to their paper on smoking, where they reach a formal conclusion. As of today, the RCA has no position on brain death but does have a position on smoking.

    MJ: Do you have any reason to suspect that the rabbis that you mention condone receiving but not giving.

    No. It was an honest question.

    Dr. Kaplan: CYA = cover your rear end, so to speak

  52. Lawrence Kaplan

    Oops. Now that’s one abbreviation Steve wouldn’t use!

  53. Gil,
    Could you give an example of the lies you were referring to?

  54. Lawrence Kaplan

    I should apologize ot my brother. I should have realized that he would not use an abbreviaton unless he had a good reason to do so.

    On a more serious note, I would like to ask Gil the following question: My brother has contrasted R. Breitowtiz;s article, which he praises as a balanced treatment, with the RCA’s paper, which he criticzes for being a brief masquerading as a memo. How would you compare the two papers?

  55. I can’t say I’m familiar with what lawyers mean when they use the term brief. I would distinguish the two papers in that R. Breitowitz just described and explained the different positions, albeit in his brilliant and concise way. The RCA’s Vaad Halacha paper also evaluated the arguments, which involves a certain amount of opinion but attempts to add value beyond a mere summary.

  56. MDJ: Thanks.

  57. Gil, here is the statement to which this refers..it would help if you posted the link for quick reference:
    http://organdonationstatement.blogspot.com/

  58. The issue of ‘donation after cardiac death’ is an interesting one. For those who are not familiar, these are patients with overwhelming irreversible neurological injuries but who clearly still have function. They are absolutely not ‘brain dead’ by any criteria. The family decide that further treatment is futile and request discontinuation of care, and also request that organs be donated. The patient’s respirator is stopped, and at some point the patient’s breathing is not adequate to support the heart, which likewise stops. After a period of time without circulation, the patient is declared dead based on the loss of circulation. The organs are then harvested. There is significant debate in the medical literature about whether it is ethical to do anything to the patient(prior to death)that would increase the viability of the organs, and there is also debate regarding how long to wait after the cessation of circulation before the person is declared dead. The Institute of Medicine has recomended waiting 5 minutes after the cessation of circulation to declare the person dead. There are studies that show that the heart will not restart on its own after 2 minutes. However, it potentially could be restarted if it was shocked or other stuff was done. Also, the patient could be put on bypass or circulation provided by other means. Therefore, in this case, the the ethicists(and the President’s commission in 2008) have made a category of permanent cessation of circulation- meaning that circulation will not restart on its own, and will not be restarted by the medical team. This is different than irreversible cessation of circulation which means that no matter what is tried, circulation will never be able to be restarted. (therefore the determination of permanent involves a contribution extrinsic to the patient, the actions, or lack of actions of the medical team. The determination of irreversible is an intrinsic characteristic of the patient, and is independent of external factors).
    In fact, those who define death by the absence of circulation, unless they wait a few days to weeks for all the arteries to decay, are actually also using the criteria of permanent cessation of circulation, rather than irreversible cessation of circulation. The only difference might be the amount of time after the cessation of circulation.

  59. “That is one possible concern”

    Possible? That is the heart of the matter, literally. If you don’t accept brain death but allow someone to receive a heart transplant, you have permitted murder according to your own definition.

  60. “embrace of a halachic position based on an extra-halachic rationale”

    I now look forward to AI publicly rejecting the extra-halachic arguments against expanding roles for women.

  61. Gil,

    My name is Robby Berman, founder & director of the Halachic Organ Donor Society. You might have heard of me because I am “activist” for supporting organ donation. Also, when I find people misrepresenting facts about brain death, I confront them privately and publicly – regardless of the title in front of their name.

    You have said a number of times that ‘activits’ are lying. I can’t imagine to whom or to what you are referring to. If perchance you are referring to me, would you mind publicly saying and quoting what I lied about.

    Sincerely
    The Activist
    Robby Berman

  62. Seems to me that the Agudah statement and the comments from Rabbi Adlerstein on cross-currents, as reported on Matzav are identical. Let’s strip away all the hyperbole from both sides—and it does exist on both sides. The bottom line is that Agudah will not recognise the authority of Rav Shapira or Rav Eliyahu or similar. It’s always a case of “we own Daas Torah”. It matters not whether there is a cogent halachic rationale, quite apart from the unnecessarily inflammatory statement of Rabbis Riskin and co.
    Gd forbid, I guess Rabbi Adlerstein and Co would turn down a heart for their own child or parent if it was from a donor who had left instructions that the donor is a disciple of Rav Shapira and would like Doctor X also a disciple of Rav Shapira to use the donor’s heart for a needy patient in the event that the donor suffered brain death. Would Rabbis Adlerstein and Co turn down the life saving organ?

  63. Gil,

    have you accused brain death advocates of lying?
    if not please say so clearly, so that we can get on with a serious conversation instead of stupid partisanship.
    If so, please delineate these lies.
    you are rapidly losing credibility on this issue.

    Second, I just heard a hiloni talk show host on israeli radio, decry the Haredi position of taking but not giving organs.
    can you defend this policy in a way that would make sense to this woman and those like her? I suspect that if you could you have answered my earlier request.

    One of the biggest problem’s in Orthodox leadership today is their frequent blindness (at times willful) to how their actions statements and rulings will look to the “outside world” especially with regard to questions of conflict of interest AKA the chiyuv of veheyitem nikiyyim mi-hashem u-miysrael. In many cases such as this one, it leads to massive chillul hashem.

  64. I’ve been talking about the lies since the beginning of this episode. I’m not going to name names but read the newspapers and you will see who is saying what.

    The single most important lie is that the RCA is advocating that Jews take Gentile organs. In truth, no distinction between Jew and Gentile is made anywhere in the RCA paper. Only by a wild stretch of the imagionation and distortion of the authors’ intent can you reach that conclusion. This is not just a lie but one that is highly damaging and irresponsible. This is how blood libels begin.

    Another lie is that the issuance of this paper represents a change in policy for the RCA. It expicitly is not and neither the RCA executives nor its executive committee have, to my knowledge, approved any change in policy. It is a research paper for informational purposes, perhaps biased or leading but still not a policy paper.

  65. The way I look at it is balebatish, which I know no posek has mentioned. However, since we are not speaking on a halakhic level, but the technical halakhah reaches the same bottom line, I feel comfortable saying it. Also, it reflects how I live my life so it resonates strongly with me. It’s based on a notion of Eilu Va-Eilu.

    Setting aside the controversy over Reb Moshe’s view, R. Shaul Yisraeli and R. Avraham Shapira unquestionably allowed brain death organ donation. If my friend follows those poskim, then I encourage him to do so. Even if I follow Rav Schachter, if he follows Rav Yisraeli then he not only can donate organs after brain death but fulfills a mitzvah if he does so. Because of Eilu Va-Eilu, I am comfortable accepting that he follows his posek and I follow mine.

    Does it then make sense for me to encourage him to donate organs to everyone except me? If donating organs in such a situation is a mitzvah for him, my involvement will not reduce his mitzvah.

    How is it moral for me to accept an organ in a situation in which I would not give one? Because I respect the people who follow other poskim and consider them mitzvah performers and not sinners.

  66. R’ Moshe S said: “One of the biggest problem’s in Orthodox leadership today is their frequent blindness (at times willful) to how their actions statements and rulings will look to the “outside world” especially with regard to questions of conflict of interest AKA the chiyuv of veheyitem nikiyyim mi-hashem u-miysrael. In many cases such as this one, it leads to massive chillul hashem.”
    ==========================

    Amen- No one is saying we should not follow halacha, but certainly meta issues such as this imho should be taken into account (of course there is a worldview of “light unto the nations” that says we just do our thing and eventually they will see the wisdom – imho that hasn’t worked so much to date)
    KT

  67. There seems to be a wide spread belief that under R. Binyamin Walfish, the RCA accepted MD Tendler’s position on brain death after consultation with the Rav. This may be a mis-perception, but it is hardly a lie.
    ,
    As for the other case you raise. You may be correct that such an opinion has been attributed to RCA paper. However, a charge of lying requires proof of malicious intent.
    Rather than ratchet up this slugfest, why not settle on a more neutral “misrepresenting”?

    Once again you have no answer for the woman on the radio.

  68. My point is that issuing this research paper does not represent any change in policy. It is simply a research paper for informational purposes.

    I’m OK with misrepresenting.

  69. My answer to the woman on the radio is that I respect your beliefs and ask you to respect mine. We should be able to work together in unity and mutual respect.

  70. R’MS,
    Lshitata there is no answer for her.
    KT

  71. Dear Robby Berman,

    While I would never call you a liar, can I point out 2 details in the HODS brochure (given out the OU conference the other day) that could be seen as bordering on misrepresentation?

    1) On one of the first pages of the brochure is a beautiful portrait of Rav Moshe Feinstein. On that page are selceted quotes from his Teshuvos encouraging organ donation. One who quickly looks through that (and does not go through the incredible amount of materials on the HODS website) is lead to believe that it’s a closed case – RMF fully stood behind organ donation.

    We both know the matter is not nearly as clear cut – just see many of the articles your org’s website provides one who honestly wants to research the matter.

    While everyone would agree that RMF would be OK with signing on as a donor based on cessation of the heart, there is a huge debate about what he would say about being a donor based on brain stem death.

    Why give the impression (which that page clearly does) that this is a slam dunk case of RMF unquestionably lending his full support to organ donation under all circumstances?

    2) A favorite tool in many HODS ads is to show just how many well known rabbis have signed up. (This is a marketing tool known as “social proof”. When human beings are unsure of how to act, we look around to see what others are doing. So by informing the public what other well known people are doing, we help the public make their decisions.)

    Here’s my problem with the way HODS does this. Later in the HODS brochure, one reads that the back of the HODS card allows one to sign on as a donor who determines death by the brain or the heart.
    As such, when HODS just shows everyone how many well known rabbis are HODS donors, they haven’t told the public the full story. How many of those people checked the box for brain death and how many for cessation of the heartbeat? Until HODS shares that info, they are not informing the public of the full story & can lead many people to make a potential error of huge potentially huge proportions.

    Robby, I would never call you a liar.

    However, I would say that these are two very misleading details in the HODS brochure.

  72. R’ JR: Correct. Whether right or wrong, there is a cultural assumption in Israel that Chilonim give and Charedim take. Within that context, this entire discussion takes on a new form. In the US, there is a very different context. If Charedim would sign up en mass as kidney donors, which from what I understand is much more needed than other organs (perhaps combined) and has no brain death issue, I think the Israeli discussion would be very different.

  73. “My answer to the woman on the radio is that I respect your beliefs and ask you to respect mine. We should be able to work together in unity and mutual respect.”

    If I were the woman I’d respond. Fine; you respect my view that it’s not murder and I respect your view that it’s murder. So I can give and accept organs because it’s not murder and you can’t give or accept organs because it is murder. I understand that and won’t urge you to donate and organ even if it means that my friends/family/me who are waiting for organ donations will have to wait longer or die. So my “respect” may be to the detriment of my commun ity. But your “respect” of my views means that you will benefit from such “respect.” That makes me somewhat suspicious of your “respect.”

  74. Joseph: It would not make you suspicious if we had mutual respect and cooperation in all other areas. Sadly, this is not the case. But if it were, I don’t think we’d be having this argument.

  75. Leon Zacharowicz MD

    Those who apparently could not prevail on the merits, during a four-year investigation that resulted in a 110-page paper by a halacha committee, have succeeded in diverting attention from the major conclusions and method of that paper by seemingly launching a campaign in the secular media.

    A public attack in an online format claiming the many scholars–in all camps of orthodoxy, ranging from Yeshiva University to Eidah Chareidis–who disagree with their viewpoint hold a “morally untenable” position is beyond the pale of scholarly discourse.

    This is as defamatory as accusing these scholars of “stupidity” (in the Jerusalem Post), of having an agenda other than the search for the correct halacha(in the Jewish Week) and of a “fiasco” (see Berman’s comments on another post). Berman, a former journalist, should know better than to use such rhetoric, and his claim elsewhere, that his website is merely educational is interesting, given that he gives such short shrift to the views of those many rabbis opposed to “brain death” and lists Rabbi Moshe Sternbuch among the supporters of “brain death,” a demonstrably false assertion.

    His advocacy site includes the suggestion that Rabbi Mordechai Eliyahu, ztl, approved of brain death, in the way being advocated by HODS. In fact, the 1986 ruling by the chief rabbis was limited to Israel and to strict criteria which have not been followed by doctors. Similarly, his site glosses over the nuanced view of scholars like Rabbi Zalman Nechemiah Goldberg.

    As a neurologist, I have been interested in this topic for some two decades, and I’ve attended lectures–going back to the AOJS debates and Rabbi Tendler’s presentation, along with Dr. Fred Plum, in 1991 or so–but I’ve also sat down and “learned the sugya” with some of the leading halachic authorities of today, in ALL camps of orthodoxy.

    The inescapable reality is that the large majority of internationally recognized halachic authorities have not accepted “whole brain death” or “brainstem death” as death in halacha. To remove vital organs from a patient declared “brain dead” would thus be, in their view, an act of retzicha, and one is not permitted to do so, even to save the life of another human being.

    As HODS board member Noam Stadlan points out, there is a trend toward deliberately stopping the hearts of patients who are not brain dead and whose hearts and lungs are functioning, in order to procure organs. This constitutes murder in halacha and in many jurisdictions, and I am concerned Dr. Stadlan’s characterization of such an act as “interesting.”

    I have repeatedly invited Berman to sit down with leading halachic authorities to study this topic and engage in the classic give-and-take of halachic discourse, as Rabbi Dr. Steinberg has done with his halachic mentors (all of whom rejected “brain death”). Berman has declined to do so. I extend the same invitation to anyone reading this post. Go to http://www.j-c-r.org and sign up for any of the upcoming yarchei kallah programs, preferably the ones in Jerusalem, featuring “chavrusa” stlye learning of this and other sugyas, followed by shiurim by renowned halachic authorities. I’ve been privileged to hear the viewpoints of Rabbi Dr. Steinberg, Rabbi Zalman Nechemiah Goldberg, Rabbi Moshe Sternbuch, Rabbi Y. Zilberstein, Rabbi Herschel Schachter, Rabbi Mordechai Willig, and ybmch’lch Rabbi Mordechai Eliyahu ztl and Rabbi Aharon Soloveitchik ztl, on this and related topics.

    Why won’t Berman do the same? Why won’t those who oppose the conclusions of the RCA paper engage in a classic halachic debate rather than making incendiary and divisive public pronouncements?

  76. Skipping past the “he said, she said” there are 2 related, but separable issues:

    1. The validity of brain-stem death as halachic death; and,
    2. The assertion that one can accept a donated organ, but not donate one (at brain-stem death)

    Issue 1 is a machloket among poskim that will continue. Issue 2 is where the heat is:

    “To adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable.”

    All the words that have flowed have not ameliorated this issue that many of us view as an indefensible moral position (irrespective of whether it can be justified through halachic disputation, about which reasonable people can disagree).

    And as a matter of halacha le’ma’aseh, if such a psak were applied in a predominantly Jewish country, i.e. Israel, then Jews would die unnecessarily or be forced to break the law (as indeed has been proven to be the case). The Rabanut Rashit has thought through the implications of paskening this halacha in The Jewish State; whereas your verbal gymnastics demonstrate an academic purity that makes for good pilpul, but bad psak halacha (particularly since you postulate different outcomes in Israel and in the diaspora).

    The solution is for the Va’ad Halacha to clearly articulate in an addendum to their study paper that either one should rule consistently in neither donating or accepting; or donating and accepting. But, not the morally untenable (even if halachically arguable) position that one can accept, but is forbidden to donate.

  77. “How is it moral for me to accept an organ in a situation in which I would not give one? Because I respect the people who follow other poskim and consider them mitzvah performers and not sinners.”

    It is one thing if you aren’t involved, but if you yourself hold that it is murder, then how can you be an accessory and benefit from the fruits of something you call murder, even if you concede that the victim had a valid view to ask to be murdered?

  78. Why won’t those who oppose the conclusions of the RCA paper engage in a classic halachic debate
    ====================================================
    Perhaps because everyone knows the other’s position, there are an extremely limited sugyot that form the basis and there will be no agreement on the meta issues that inform on the halachic processes evclution as technology continues its march?
    KT

  79. Several years ago, Rabbi Y. Breitowitz authored a very informative short article explaining both sides of the debate over determing the time of death in Halacha.

    The article can be found here:

    http://www.jlaw.com/Articles/brain.html

    (It’s probably up on the HODS site as well.)

    In the last paragraphs he quickly states how those in the cardiac camp explain their justification for accepting donated organs.

    This is by no means a new issue.

    Here’s the quote (I encourage all honestly interested parties to read the full article though):

    There are, however, two other points that need to be considered. The argument is occasionally made if the halachah rejects the concept of “brain” or “respiratory” death, Orthodox Jews would be unable to receive harvested organs on the ground that the recipient would be an accessory to a murder. As others have noted,27 this conclusion does not follow. To the extent the organ in question would have been removed for transplantation whether or not this specific recipiient consents, i.e., there is a waiting list of several people, the Orthodox recipient is not considered to be a causative factor (gorem ) in the termination of a life. There is no general principle in halachah that prohibits the use of objects obtained through sinful means. It is true that if, because of tissue typing and the like the organ is suitable for only on recipient and if that recipient declines the transplant, the organ will not be harvested, an Orthodox recipient may indeed be compelled to decline. But this is rarely, if ever, the case.28

  80. Skeptic: It is one thing if you aren’t involved, but if you yourself hold that it is murder, then how can you be an accessory and benefit from the fruits of something you call murder, even if you concede that the victim had a valid view to ask to be murdered?

    Because I respect the other person’s position as valid. It is somewhat similar, albeit on a much more significant scale, to RSZ Auerbach’s leniency regarding a Ben Chutz LaAretz in Israel on Yom Tove Sheini, asking a Bein Eretz Yisrael to do melakha. It’s definitely mutar for him so, according to RSZA’s leniency, I can ask him to do it *even for me*.

    I don’t call transplant doctors murderers and I have great respect for (some) advocates of organ donations. Isn’t that how a community is supposed to act? If my neighbor gets a non-Chalav Yisrael gift, he gives it to my family. And if I somehow get a Heter Mechirah fruit, I give it to another friend who will eat it.

  81. “Why won’t those who oppose the conclusions of the RCA paper engage in a classic halachic debate rather than making incendiary and divisive public pronouncements?”

    Gil, note that an opponent of those opposing the RCA’s paper understands that the paper had “conclusions” and was not merely an informational piece.

  82. If you want to nitpick, the paper does have conclusions. Just about every chapter ends with conclusions. There is, however, no policy conclusion.

  83. “There is no general principle in halachah that prohibits the use of objects obtained through sinful means.”

    What does mitzvah ha’baah b’aveirah mean then?

  84. Skeptic: It has to be at the same time. Otherwise we would not be able to eat hybrid fruits.

  85. “If you want to nitpick, the paper does have conclusions. Just about every chapter ends with conclusions. There is, however, no policy conclusion.”

    The solution is for the Va’ad Halacha to clearly articulate in an addendum to their study paper that either one should rule consistently in neither donating nor accepting; or donating and accepting. But, not the morally untenable (even if halachically arguable) position that one can accept, but is forbidden to donate.

    That they have not done so, is a policy conclusion (even if unstated).

  86. All the Va’ad Halacha did was present what the poskim have stated. And since that position is morally tenable, to say that it isn’t would be incorrect.

  87. “There is no general principle in halachah that prohibits the use of objects obtained through sinful means.”
    ==========================================
    Aha – now here’s something worthwhile and new to this debate – is there an ethical objection to using such objects (the debate about using Nazi freezing water studies comes to mind as do “blood diamonds”.)?
    KT

  88. Gil,
    I must concede to you that there is real precedent for your approach to Halacha and morality in Chazal. Perhaps not coinicidentaly this source also would appear to support the cardiac definition of death.

    ואח”כ בא אביו של תינוק
    אמר להם
    אחינו אני כפרתכם
    עדיין בנו מפרפר
    וסכין לא נטמא
    ללמדך שטומאת סכין
    קשה להם לישראל יותר משפיכות דמים

    ve’hamyvin yavin

  89. So we have one set of Rabbis who believe it to be morally tenable and another set who believe it to be morally untenable. The people will choose.

    I have seen very little support amongst the Hirurim comments for the (unstated) policy conclusion of the Va’ad Halacha. So, this simply deepens the chasm within Orthodoxy with little benefit le’ma’aseh. That too is an (unstated) policy conclusion.

  90. I frankly am quite tired of dr. Zacharowicz’s repeated statements implying that I and/or others who disagree with him have not ‘learned the sugya’. I also not interested in getting into a ‘my gadol is greater than your gadol’ argument. I invite him to actually read my meorot article and my post here at hirhurim and then feel free to respond to the content. Perhaps then his post will contain some actual pertinent facts.

    The reason I termed the donation after cardiac death issue interesting is that ultimately the patient is declared dead based on the same criteria that the halachic circulation advocates are usuing: permanent cessation rather than irreversible cessation of circulation. This is yet another problem with the definitions of death that do not include consideration of the brain.

  91. “If my neighbor gets a non-Chalav Yisrael gift, he gives it to my family.”

    If you’re neighbor thought it was treif, how could he give it to you? Unless your neighbor knows that it is kosher, but that he himself is machmir.

  92. Skeptic: That’s the point. He holds it is treif and would kasher his pots if it got in. It’s not even a chumra but explicit in the Shulchan Arukh. But he knows I follow a different view and he respects that. It’s treif for him but not me. That is how Eilu va-Eilu works.

  93. Anonymous: I am opposed to Charedim not working and not serving in the army.

    IH: Of course I do not see an equivalence. One is a case of life and death and the other is about food!

    But are you seriously incapable of recognizing the value of an analogy? I think you are smarter than that.

    You keep trying to claim the mantle of Modern Orthodox. If you want to use labels then use the right one.

    I am not missing the point of moral assessment. One of the most important elements of mature discussion is the ability to see things from the perspective of other people. Try doing that before you throw out moral assessments.

  94. Dr. Zacharowitz is seriously misrepresenting things when he says that people are being taking off life-support to donate organs under donation after cardiac death protocols and he is even more seriously misrepresenting things by saying that Dr. Stadlan has said this. The decision to remove very ill patients from life support is made every day in hospitals, and until recently, this had no connection to organ donation because such organs could not be transplanted. What has changed now is that there are ways to trnasplant these organs, so that _ONLY AFTER_ the decision to terminate life-support has been made, is the question of organ donation raised. this is the case under every accepted policy for donation after cardiac death.

  95. Gil,
    Do you not see why your respecting her position that it is OK to donate and accept organs may not be an appropriate quid pro quo for her accepting your position that it is ok to accept but not to donate. And no, this is not a matter of quid pro quo, but I am trying to point out in a different way the problem with this position, a problem you seem to have trouble grocking.

  96. Of course I see the difference. But if we are going to start being territorial and refusing people services if they don’t contribute appropriately, society will break down. I also understand that in Israel there is a general view that Charedim are takers and not givers. But in a more even society, people should be able to give as much as they can and take as much as they can. I know this is a faulty analogy, but I believe that even people who cannot give blood for whatever reason should still be able to take as much as they need. That is how a society functions with people from different backgrounds, needs and abilities.

    If this were a personal decision, that someone can choose whether he wants to donate organs or not, then I could understand the decision to exclude him. But, ironically, it is the exact opposite. People who *choose* not to donate organs are allowed, under this proposed moral paradigm, to receive organs but people who are halakhically forced not to donate are being refused organs. I see that as bad community policy based on misplaced anger.

  97. Perhaps an analogy would be the issue of charedim both working and serving in the army in Israel. Gil – would you expect a secular interlocutor to ‘respect’ your gedolim sanctioned opposition to either (please don’t tell me that the non-employment rate of 63% amongst Charedi men is anything other than gedolim sanctioned), whilst you receive the benefits of the secular public’s participation in both of those things, in return for you ‘respecting’ their position.
    Also, would you be similarly uncomfortable with descriptions of the aforementioned situation as morally problematic, inasmuch as it is clearly following the pesakim and guidance of great gedolim?

  98. “I don’t call transplant doctors murderers and I have great respect for (some) advocates of organ donations. Isn’t that how a community is supposed to act? If my neighbor gets a non-Chalav Yisrael gift, he gives it to my family. And if I somehow get a Heter Mechirah fruit, I give it to another friend who will eat it.”

    Do you really see an equivalence between accepting a gift of milk/fruit and accepting an organ from someone whom you believe to have been murdered. This is truly absurd if not perverse.

    You, again, are missing the point that there can be a difference (for Modern Orthodox) between that which is halachically possible and its moral assessment. I accept this distinction is theologically abhorrent in more fundamentalist streams; and this is the underlying meta-issue in this debate.

  99. Anonymous: I am against Charedim not working and not serving in the army.

    IH: Surely you are capable of recognizing the difference between an analogy and an equivalence. This is a basic component of intelligent discussion. Of course I recognize the difference between food and a life and death scenario!

    Please stop trying to claim the mantle of Modern Orthodox. If you want to use labels then use the right one.

    An important component of mature discussion is being able to see things from another perspective. Please try doing so before conducting your moral assessment and try thinking through what someone of a different view would say.

  100. For those who are asking why no one will engage the RCA paper’s analysis, I am sure there are those who in the process. I myself am writing a series of posts on the Tradition blog (http://text.rcarabbis.org/) offering such a response.

    Gil,

    Have you actually read the RCA paper from beginning to end? You are willing to take the authors at their word that they are writing a purely informational piece and not advocating any position, yet their presentation is so grossly skewed against the acceptability of brain death that it’s hard to see how that could be true. The only ‘evaluation’ they offer of the positions is a relentless, hammering (and not-infrequently ad hominem) critique of every posek who supports brain death. When they present any of these positions, there is barely a paragraph that they don’t immediately counter with 1-3 paragraphs of counter-argument. As for the positions that oppose brain death, they present only the briefest outlines, without even a minimum of critical assessment.

    What is the reader supposed to make of such a document? If we are to take the authors at their word–that they are simply offering a neutral informational assessment, then it is one of the most incomplete and stilted assessments of a halakhic issue I have ever read. But if we allow the document to speak for itself, it cannot be construed as anything other than a statement of advocacy of one position. Should we call the authors of the document “liars” for insisting that they are “engaged in an unfettered search for the truth” (RCA paper, p. 11) when they don’t bother to mention that R. Ovadia Yosef gave his support to the 2008 Knesset bill defining brain stem death as death? I would prefer to call them self-unaware, blinded by their commitment to one position on this issue. But please–on the question of whether the paper advocates one side of the debate, let’s call a spade a spade.

    As for the issue of taking and not giving, it’s true that the paper never distinguishes between Jews and non-Jews, but it does explicitly dismiss any issur of taking organs harvested from BSD patients event though it consistently argues against the acceptability of that standard. So I ask you: if brain death is not halakhically acceptable, who are we supposed to be taking organs from–non-observant Jews? Again, just because the authors don’t say something explicitly doesn’t mean they shouldn’t be held responsible for the logical outcome of their positions. This is precisely the point that the statement by R. Dov Linzer (to which I am a signatory) is making: it’s one thing to advocate a particular halakhic position based on one’s analysis of the sources, it’s another to willfully ignore the impact of that position.

  101. Daniel: Even if the paper is skewed, it is still not a policy statement of the RCA. I think the RCA executives would have something to say if it were.

    As for the issue of taking and not giving, the paper presumably recognized that until the day when all Jews are religiously observant and following the view of those who forbid BSD organ donation, the minority of religious Jews who forbid BSD organ donation will be receiving organs from Jews and Gentiles. Do you really think that the authors of the paper envision all Unaffiliated, Reform, Conservative and Orthodox Jews suddenly accepting the strict opinion?

    Your assumption is that the paper’s authors are saying “Kablu Da’ati”. If they really had such high hopes, they might have also wished that Gentiles would follow the strict view as well.

    I don’t buy it for a second and I believe it is irresponsible to make such claims.

  102. R. Reifman – I thoroughly enjoyed your first post on the topic, and look forward to the rest of the series. I also generally felt the same way as you did when reading the RCA paper; it really feels like they are out to get anyone who holds of brain-death, but it must also be admitted that if the top, say, 20 poskim in the world (including YU and DL in Israe) were to write a paper on the subject, the majority of them would also be opposed to brain-death in no less harsh terms. It must be admitted that they do, for example, offer a tempered critique of R. Vozner’s reading of the sugya in yoma, and the position of R. Shapira, that differentiates between de’orayta and derabannan categories of death, which is rejected by the RCA paper without much thought, does indeed seem a bit strange (maybe you can present a more sympathetic understanding of his position?). Although I have not spoken to R. Bleich, I think that conceptually Dr. Staldan’s critique of his position makes sense; and having read the writings of the ‘rationalist medical halachist’ on his blog it does seem that there is an especially strong case to be made for people who disavow the assumptions that someone like Rav Vozner brings to his teshuva on the subject (i.e. the heart is the mishkan of the neshama, as the Chachjam Tzvi says, and that is it ). However, as R. Folger pointed out in his response to Dr. Stadlan on his blog, all conceptual issues must be accepted by poskim for them to be considered as normative orthodox halacha. Now, you may argue that the case for brain death has indeed been accepted by poskim, and you are right. However, I think the RCA paper has something going for it in terms of its analysis of where the weight of contemporary poskim side on this issue. Regarding R. Ovadia’s position – its absence form the RCA paper is indeed inexcusable – however, I am unaware of a detailed teshuva on this topic from R. Ovadia – am I simply ignorant, or has it not been written/published?(I am not doubting that he holds of brain-death at all)
    As an aside, I came across a splendid dissertation on this topic, which you may be aware of; if not, you may find it useful when writing your series:
    http://141.213.232.243/bitstream/2027.42/77671/1/eytansht.pdf

  103. Glatt some questions

    Daniel: Even if the paper is skewed, it is still not a policy statement of the RCA. I think the RCA executives would have something to say if it were.

    ———————

    Gil is 100% correct. The RCA said from the start it was not a policy statement. However, the better question is why the RCA administration allowed a clearly one-sided, biased, and skewed report to be released, without giving the pro BSD folks equal time.

  104. Shalom Aleikhem R. Student,

    I agree with the Rav that the analysis regarding the definition of death is certainly (like all disputes among the poskim, as per IM OC 4:25) a sphere where “Elu va-Elu” applies. Indeed, R. Edward Reichman arrives at the same conclusion in his article at http://www.hods.org/pdf/Reichman%20BSD%20Tradition.pdf , as does R. Avraham Steinberg in his Hebrew interview on the HODS website.

    At the same time, “Elu va-Elu” in Eruvin 13b is immediately followed by “Vahalakhah ki-Veit Hillel”. The principle “Elu va-Elu” tells me that the divergent opinions are all theoretically legitimate and revealed by HKB”H to Mosheh Rabbeinu. But “Elu va-Elu” does not mean one can follow any given opinion. There is a practical Halakhah, after all the theoretical analysis is orchestrated.

    Given the rich complexities of the Oral Torah, on any given spoon-in-pot question with which a moreh hora’ah is confronted, the status of the cheftza will be determined in accordance with the final adjudication of the moreh hora’ah. That is the practical Halakhah.

    Not so for a question of whether a Gavra exists. Here, no moreh hora’ah has the authority to act upon his personal opinion, and no interlocutor to the moreh hora’ah has permission to act a certain way just because his posek told him to do so (-“ein shali’ach lidevar aveirah”, Kiddushin 42b). The existence or non-existence of a Gavra is a matter of ontological fact: Either the neshamah is in the body and the Gavra exists (and therefore it is forbidden to murder him, and the straightforward masoret we have for thousands of years – barring the creative reasoning of RSZA or RYSE – is that an Orthodox Jew may not register for organs), or the Gavra does not exist (and therefore it is a great mitzvah to donate his tissue to save others, and an Orthodox Jew may register to receive organs). “He who seeks to take away from his friend, upon him is the burden to bring proof” (Bava Kamma 46b). There is no greater “taking away” from one’s friend than taking away his status as a Gavra. And so here we need a unanimous consensus of the Gedolim. As RSZA said, “barei li” only helps in an issue between a person and his Creator. “Barei li” does not help to spill someone else’s blood, or to cause the spilling of someone else’s blood even by a few minutes (which is what would potentially occur if one registers for an organ. And the fact that I will telephone HaRav HaGa’on R. Bleich, and he will tell me that I can register for an organ to save my life, is useless: ein shali’ach lidevar aveirah.)

    If consensus cannot be achieved, the matter rests as a safek, and no one may ever donate organs (aside from living donations, like blood, bone marrow, a single kidney, or a partial liver) and no one may register for obtained organs. That’s why it’s so urgent that the Gedolim meet face-to-face.

    I want to acknowledge my debt of gratitude to Robert Berman, who is a marvelous tzaddik gammur. Without his HODS website, reflecting his heroic multi-year trek to investigate the issue, I could not have reached the opinion I have reached. I am sure those of us who are challenging him (-and rightfully so, in the noble and friendly spirit of milchamtah shel Torah) recognize the public service he has rendered. His eternal reward (like that of our Rosh Yeshiva R. Student and all the distinguished commentors on this forum) will be great.

  105. R. Shalom – you write “and therefore it is a great mitzvah to donate his tissue to save others, and an Orthodox Jew may register to receive organs”.
    Do you believe that to be the case even for a nachri? Doesn’t it violate nivul hameis? Now of course most of us here would view someone who used that argument to forbid donations from someone they regarded as dead to someone they regarded as alive as immoral, but there are certainly poskim who would forbid this (and would let the nachri die instead of taking organs from someone THEY regard as a dead yisrael. Presumably Gil would think it was ‘closing down debate’ if such a position was rejected as morally untenable. (Note how the aguda declaration is very circumspect in encouraging organ donation, even from ‘vadai meisim le’khol hadei’os’.

  106. Lawrence Kaplan

    Anonymous 12:13 is obviously Rabbi Shalom Spira.

  107. I thank Rebbi UMori R. Kaplan. Yes, that was Shalom Spira at 12:13 p.m. – I apologize… I forgot to sign my name (-all the more an oversight on my part since we are discussing a responsum of *Chatam* Sofer).

  108. Anonymous 12:30,
    Can you cite any poskim who explicitly tie organ donation to nivul hames?

  109. I agree with Glatt that Gil is correct that the RCA paper is not official RCA policy. But the main criticism that has been asserted against the paper on this point is not about “policy”: it is that the paper claims to be “an informational guide to the [RCA] membership” (see the RCA’s “clarification”) and that claim misrepresents what the paper truly is. It is a paper that strongly advocates for a particular position. Of course, to quote R. Jerry Seinfeld, not that there’s anything wrong with that, but, as in so many other things, it’s the coverup that caused much of the problem. If they had only been honest in what they were doing, the debate would have taken, I believe, a different tone.

  110. R. Gil: I think I finally understand your position. You think that taking the organs out of a brain-dead patient is not moral murder, but is Halakhic murder, which is why you’re willing to look at this through “elu v’elu” lenses. Could you confirm this is what you’re saying?

  111. ” “There is no general principle in halachah that prohibits the use of objects obtained through sinful means.”
    ==========================================
    Aha – now here’s something worthwhile and new to this debate – is there an ethical objection to using such objects (the debate about using Nazi freezing water studies comes to mind as do “blood diamonds”.)?”

    Joel, I recall R. Bleich wrote an article in Tradition about the nazi experiments and concluded that halacha allows their results to be used. When I read it (many years ago), I commented to someone that I was a bit surprised at the conclusion. This (wise) person told me that a subtect to the article was brain death; that if halacha can allow using results of Nazi experiments then it can allow using organs from brain dead (i.e., alive according to R. Bleich) people.

    But as to the Nazi experiment analogy, isn’t there another point to consider. The question that has been considered, I believe, is a post facto one; now that the war is over and we have these results, can we use them? Do you think, however, that the analysis would have been the same if halachic policy were being considered when the experiments were ongoing; our bretheren are being, and will continue to be, tortured to get these results — should we use them? I would think — make that hope — that the analysis would take that into consideration.

  112. Hirhurim
    The single most important lie is that the RCA is advocating that Jews take Gentile organs. In truth, no distinction between Jew and Gentile is made anywhere in the RCA paper. Only by a wild stretch of the imagionation and distortion of the authors’ intent can you reach that conclusion.

    It is not the RCA per se that specifically accused of this – rather, that those who would receive and not give (and, as see below, while the RCA paper does not pasken, it clearly advocates for this position) are guilty of this. Unfortunately, this is not a lie.
    If one holds

    1) Halacha forbids Jews to donate

    2) All Jews should be bound by halacha and

    3) Jews are allowed to receive organs donated is immoral (note:Statement 2 is sometimes not specifically stated in this context, but is generally assumed) –

    the LOGICAL implication of these three statements is that if one wants an organ donated, but does not want Jews to donate, one wants it donated by someone – which means a nonJew….

    Yes, most poskim who approve of this would accept it from anyone, even a Jew, (although, as in a previous go round, in RSZA’s letter discussing it, one the sources of the heter is that outside of Israel, one can assume that the donor is non Jewish – deshapir azlinan betar ruba shehatorem hu nochri. so it is not clear what he would rule if one knew the donor was Jewish) But that does not change the logical implication.

    Indeed, it is made even stronger by the Agudath Israel position. If one held that there were two legitimate halachic positions about brain death, you could argue that those who rejected brain death could still respect the halachic autonomy of those who accepted it – and therefore would have no problems with those Jews who accepted it donating. (RD Beckerman had posted that it was legitimate to respect the decision of non Jews who wished to donate – I wonder whether he would extend that to those who accept brain death). Whether this is morally viable I strongly doubt. However, as Agudath Israel rejects the legitimacy of the brain death option – who do they want to donate????

    (BTW, even if you do not agree with the logic (although some argument why would be appreciated),it is clear that those who would take and not give are clearly saying that one advocates that those who follow our halacha should take organs from all gentiles and Jews who do not follow our poskim…- I am not sure how much better that is than just saying that they take from gentiles….)

    What is at least partially encouraging is that you realize how untenable your position actually is. Accusing the other side of lying for stating the clear logical implications of a position is, however, what is problematic. If one does not like the logical implciations, perhaps one should change one’s position.

    Hirhurim
    Another lie is that the issuance of this paper represents a change in policy for the RCA.

    Clearly the RCA paper was not a formal psak. However, as many have said, it represents a legal brief rather than a summary, which clearly advocates for a particular position (and, as others have pointed out, does so in an intellectually dishonest fashion). If a committee puts out a legal brief advocating a position, it is a reasonable assumption that the committee is planning to adopt that position. This was not a mere informational essay outlining the positions.

    The agudath israel position denies the legitimacy of the brain death position –

  113. Joseph Kaplan: I agree with Glatt that Gil is correct that the RCA paper is not official RCA policy.

    This is important because the media has been portraying it as a change in policy, and then the RCA’s clarification as backing down.

  114. Meir Shinnar: the LOGICAL implication of these three statements is that if one wants an organ donated, but does not want Jews to donate, one wants it donated by someone – which means a nonJew

    One person’s logical conclusion is another person’s convoluted assumption. It is simply wrong — immoral! — to misrepresent the RCA paper or the poskim it quotes as advocating the harvesting of gentiles for organs.

    Yes, most poskim who approve of this would accept it from anyone, even a Jew

    Excellent. So we agree.

    Clearly the RCA paper was not a formal psak.

    Exactly! We are making progress today.

  115. “Joseph Kaplan: I agree with Glatt that Gil is correct that the RCA paper is not official RCA policy.

    This is important because the media has been portraying it as a change in policy, and then the RCA’s clarification as backing down.”

    What is at least equally important is that the paper, and even the RCA “clarification,” were/are misleading about what the paper is.

    As I suggested in an earlier thread, the wisest, and most honorable, thing for the RCA to do would be to call the paper a draft and send it back for another strong and hard look and revisions based on further research and the many comments about and criticisms of the paper that have been made here and in other fora. But the chances of that happening, it seems, are as great as the 6 “gedolim” getting together in a locked room to hash out this issue as has been suggested by RSS.

  116. Joseph: At last we can agree. Given all the criticisms, I also think the Vaad Halacha should take specific comments and reevaluate the criticized passages.

  117. Glatt some questions

    BTW, has anyone noticed that Rabbi Bush has been completely silent since issuing the document.

    I also know Rabbis Auman, Sobolofsky, and Feldman, who were on the RCA Halacha Committee, and each of them told me (individually, when I spoke to each of them separately) that they had virtually nothing to do with the research and compilation of this paper–even though their names were on it as part of the committee. While they would never disassociate themselves completely from the paper, I did get the feeling that they felt bad it was released in the form that it was in–although again, they did not say that directly. My guess is that if any one of these fine talmedei chachamim were responsible for authoring the study, it would never have been presented in the way that it was presented. And as I mentioned before, I do still hold the RCA responsible for releasing such a one-sided paper, even if it was not a policy statement.

  118. I see nothing wrong with a one-sided paper if that is where they believe the truth lies.

    Presumably, Rabbi Bush is silent because of the media’s distorted representations. Saying anything could potentially lead to even bigger distortions. He has to be very careful right now.

  119. R’ Anonymous,

    Thank you for the excellent question (and for successfully identifying me). You are correct that the Agudath Israel is cautious regarding donation of organs after the person has definitely died. The Agudath Israel said it is “under certain circumstances and with proper safeguards… permissible and indeed
    laudable… to bequeath organs after death”. That sounds like a cautious statement. Why the caution on the part of the Agudath Israel?

    One possible reason for caution is that – with all the questions of when death occurs – it is not clear what exactly “after death” means in practical terms. Particularly if one should assume that brain death is doubtful death, and then take the eccentric-sounding position that I have proposed as a real possibility based on contradictions within RJDB’s writings (comment yesterday in the News & Links forum, at 1:32 p.m.) that we don’t even know death has occurred for certain until the arteries have decomposed (and I thank Dr. Stadlan for confirming that the duration required for this is uncertain), then there’s a question what organ ever can be donated. [Maybe the skin? I don’t know.] And, thus, pending further clarification (hopefully by a unanimous consensus of Gedolim) of what defines human death, the Agudath Israel preferred to be cautious and to refrain from energetically advocating organ donation. [And, of course, it is possible that the Gedolim will conclude that S. Spira is a total eccentric and that there is no need to wait until decomposition to declare death with certainty. But I don’t want to prejudge the conclusion. This question affects not only the medical profession, but also the chevra kadisha that seeks to swiftly bury a corpse. In every Jewish community, there are (lo aleinu) funerals every day, and so this question needs to be addressed with the utmost of urgency.]

    Another possible reason for caution is that in IM YD 2:174 (sec. 4, final paragraph), RMF extrapolates from Tosafot to Shabbat 44a that consent of next of kin is required for cadaveric donation for purposes of piku’ach nefesh [i.e. when the donor is definitely dead, whatever that means (and I believe we now know that RMF ruled that brain death=death, but that this was contested as a matter of doubt by RSZA), and another patient will die unless he receives the organ in the cadaver.] Now, if it’s piku’ach nefesh, why is the cadaver’s next of kin permission needed? RMF explains that although a Jew is obligated to spend up to all of his wealth to save someone else’s life, a Jew is not obligated to spend *more* than all his wealth to do so, and (based on Tosafot) the anguish that a Jew experiences at the mutilation of his loved one’s body exceeds the entirety of his wealth. Thus, if the family refuses, an organ need not be donated. However, adds RMF in a brilliant statement of pastoral counselling (and correctly emphasized by RMDT in all his lectures and responsa), it is a mitzvah for the family to overlook the anguish and to actually be happy that they can save someone else’s life by allowing the body of their loved one to be mutilated.

    Indeed, RJDB (Bioethical Dilemmas II, pp. 193-194) challenges RMF’s assumption that the grief of the family members exempts them from allowing organs to be donated. RJDB terms such grief “vicarious”, “misplaced” and having “no standing”. Indeed, in his 2006 lecture on the definition of death (already referenced in this forum), RMDT calls allowing an organ donation from a deceased love one “a chiyuv, not [just] a [voluntary] mitzvah”. So, it sounds as though the two Gedolim RJDB and RMDT are on the same wavelength in proposing that RMF’s ruling to require consent of next-of-kin should be overturned. My impression is that this is not so much an issue of overturning RMF’s ruling as saying the metzi’ut has changed because “times have changed”. In 1968, when RMF wrote the responsum, it was very unconventional for a family to allow organ donation, and so there was real anguish over the act of mutilating a loved one’s body. Today, especially thanks to the excellent educational efforts of HODS, it is much more acceptable to the public palate to consent to an anatomical gift from a deceased loved one for the purpose of saving life, and so perhaps “batlah da’ato etzel da’at kol benei adam” is triggered. [I.e. even if a family is hesitant to allow organ donation, maybe their opinion is so eccentric that it should be overridden.]

    In summary, because of these two complexities at hand (the definition of death, as well as the dispute between RMF vs. RMDT & RJDB regarding anguish of a bereaved family – which may or may not be an actual dispute), I can understand why the Agudath Israel was frightened to definitely encourage organ donations carte blanche.

    Regarding an anatomical gift from a Jew to save a Noahide when this requires the transgression of a prohibiton, you are correct that there is important discussion on this point in halakhic literature. But the final normative Halakhah is that it is a great mitzvah for the Jew to do so, so long as the Jew does not transgress the three cardinal transgressions. The lomdut for this conclusion is presented by RJDB in Benetivot Hahalakhah III, pp. 80-84 (in the context of bone marrow donation from a Jew to save a Noahide). R. Mordechai Tendler says in his HODS interview that a Jew should presumably first donate to a fellow Jew before donating to a Noahide, simply because closer family comes first. [My impression is that this is also one of the themes in R. Joseph Ber Solovetchik’s “Confrontation”: all human beings constitute one large family, but Jews are a particular family within the larger family of humanity.] But the bottom line it is a great mitzvah for a Jew to give to a Noahide also, so long as the Jew is not transgressing the three cardinal transgressions.

  120. Daniel Weltman

    >So I ask you: if brain death is not halakhically acceptable, who are we supposed to be taking organs from–non-observant Jews?

    According to Gil’s answers earlier today, it would seem that we are supposed to be taking these organs from non-Jews, non-observant Jews, and (here is the crux of the problem, in my opinion) observant ones, who follow the “pro-BSD” opinions.

    The fact is that to some, the concept of a halachik ruling has been de-valued and watered-down to the point where their planned ability to function in the world relies on those who take a countering view. For them, a halachik ruling is not seen as an attempt to create an independently functional society from the fabric of halacha (which by definition would require so-called extra-halachik considerations); it is rather an object which is abstract, independent of realia, and answers to no question of practical validity. The halachik ruling is seen as one of a number of choices, as opposed to a part of a halachik world-view crafted with an eye on the whole forest, and intended to be accepted by all. Thus, the application of an “eilu v’eilu” rationale allows a halachik system in which one can live a life which, if accepted by all, would make living untenable: One’s chumrot need not allow for a fully-functioning society, since another’s kulot will fill the gap the former’s chumrot leave.

  121. Daniel: First, thank you for using your name. I generally agree with you about this. This was Rav Goren’s position on Israel, as well, that they cannot build a society based on the concept of “Shabbos goy”. In this case, though, I don’t think it applies. If no one donates organs, the society can still continue to function. These poskim are not building an unsustainable or non-functioning society. They are just dealing with circumstances of current reality.

  122. Glatt some questions

    I see nothing wrong with a one-sided paper if that is where they believe the truth lies.
    ————————-

    If they honestly believe that this is the truth, they should take a position and state it as such.

    But since they aren’t willing to do that, and are leaving the decision up to individual rabbis to determine their own definition of halachic death from two equally legitimate and valid halachic opinions, then they had a responsibility to provide their member rabbis with a more even handed study to assist them in their decision.

    Don’t you think so, Gil?

  123. They couldn’t reach beyond their mandate. My understanding is that they were told not to pasken but just to produce a study. Maybe I’m wrong but that’s what I seem to recall being told. I’m pretty sure that if they were given the mandate to pasken, they would have paskened against brain death.

  124. Gil,
    I agree with Glatt. You can’t have ti both ways. Either this is a policy paper, in which case it should state a position, and there is ” nothing wrong with a one-sided paper if that is where they believe the truth lies”, or it is an informational booklet, in which case it should give equal attention to both sides, even if the critiques of one turn out to be stronger. The RCA paper did the former, which why no one but you considers it a “lie” to say that the paper is a change in RCA position, or at least it public stance on the matter.

  125. hirhurim:”I see nothing wrong with a one-sided paper if that is where they believe the truth lies.”
    nice word usage

    to lie: one definition is: To convey a false image or impression
    if the rca paper was to “engaged in an unfettered search for the truth” and as an unbiased primer for rabbis to consult to make decisions then one can say – with good consciousness – that they lied.
    many people lie all the time in my field – financial – by telling you only the facts that will convince you and leave out pertinent factual info that have implications on decisions. its not criminal but omission – whether with or without intent to defraud or misconstruct- is a form of lying to most educated people.

  126. ruvie: I’m not sure what you are saying. Are you suggesting that by presenting the views as they understood them, the Vaad Halacha conveyed a false image or impression? Or are you saying the opposite, that had they not presented everything the way they saw it they would have been conveying a false image or impression?

  127. I’m not sure I understand how the idea that the anti-BD criteria side advocates harvesting organs from anyone but themselves (including pro-BD Jews) is functionally different than the claim that the anti-BD criteria side advocates harvesting organs from Gentiles. It’s really the same thing: “we want organs from outsiders, and don’t intend to give any back.”

    I don’t think it’s a lie, or even really misleading, to say that the anti-BD side advocates harvesting organs from Gentiles. That is true! In other words, it’s not an exclusive statement, it’s merely the most offensive component of what some people (e.g. those who signed the “Rabbinic Statement”) consider a wholly offensive position. Compounding this, some seem to think that pointing out that the anti-BD side advocates taking organs from other Jews as well to whom they won’t in turn donate, makes this all better. Why is that better?

  128. Jerry: For one thing, it is factually incorrect because the anti-BD does not advocate taking organs from anyone who is BD. If that is person is going to donate organs anyway, then the anti-BD allow receiving from him. Do you see the difference?

  129. hirhurim: the false impression is their description of what the paper is and showing – as some on this thread have – that it is untrue – the question is was it intentional is indifferent to whether it may be a lie.
    there is nothing wrong in presenting their view if they described as such as oppose to an unbiased primer or manual for rabbis to consult in case of need. even then they can be biased on what they believe is correct and wrong but to omit and misrepresent – as some maintain – is to deceive by most people. its not like technically lying as witness to questions by a lawyer – just a different form of misrepresntation or implying a false image. everyone does this to a certain degree – but publicly is it kosher for rabbis to do it?

  130. Glatt some questions

    They couldn’t reach beyond their mandate. My understanding is that they were told not to pasken but just to produce a study. Maybe I’m wrong but that’s what I seem to recall being told. I’m pretty sure that if they were given the mandate to pasken, they would have paskened against brain death.

    ———–

    OK…so given their mandate to produce a study, do you think this study reflected a balanced and fair approach that would allow member rabbis (after reading it) to come to their own conclusions in deciding between two equally valid halachic opinions on death?

  131. ruvie: There is a difference between being untrue and being wrong. You can argue that the RCA paper is wrong. I don’t doubt that it has mistakes in it, like just about any paper. Some of the stronger claims made here and elsewhere are, I’ve found after investigating, quite answerable.

    I don’t recall the paper using the word “unbiased” or anything similar. On what page is it?

  132. Glatt: do you think this study reflected a balanced and fair approach that would allow member rabbis (after reading it) to come to their own conclusions in deciding between two equally valid halachic opinions on death?

    Intelligent rabbis? Yes, although I don’t think they should do so but should instead contact their posek.

  133. Hirhurim: For one thing, it is factually incorrect because the anti-BD does not advocate taking organs from anyone who is BD. If that is person is going to donate organs anyway, then the anti-BD allow receiving from him. Do you see the difference?

    I understand that you can distinguish between those two things, but I do not agree that there is a difference. For one thing, others with knowledge have pointed out that this is not normally how organ donation works (as I understand it, donors donate to a specific person; it’s not like there is a pool of organs waiting around for people to use). If this is the case, your premise is incorrect, in which case the charge against the anti-BD side become all the more pressing.

    More importantly, I don’t think this distinction helps when we’re dealing with murder. Participation in a system that encourages murder is unacceptable from any perspective – in fact, this is even more important when the donor is Jewish (which is another reason I don’t understand your rebuttal to the “anti-BD side is harvesting from Gentiles” charge).

  134. Rabbi Student, your last response to me was rude and offensive. If one goes back and reads the thread, I have been trying to draw out your real meaning from your often emotional argumentation.

    The fact is that Rabbi Riskin et al (who are indisputably Modern Orthodox) issues a statement that offended you.

    In your words:

    “Hirhurim on January 12, 2011 at 1:37 pm

    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.”

    I stand by my summations in this thread. Katan Alecha.

  135. Yi’yasher kochakha and thank you, R’ Joseph Kaplan, for bringing to our attention at 1:57 p.m. that RJDB’s article on “Scientific data obtained through immoral means” (reprinted in Contemporary Halakhic Problems IV) bears relevance to the question of organ registration. There, on p. 223, RJDB writes as follows:

    “In the first scenario, the physician informs the rabbi, ‘My experiment requires the bodies of males having blue eyes, blond hair and being at least six feet tall. If I agree to engage in this research, cadavers will be obtained in the course of future selections. Rather than being sent to labor camps, males possessing these physical characteristics will be marked for extermination so that their bodies may be made available for experimentation.’ A responsible rabbinic decisor would be hard put to find grounds upon which to sanction cooperation on the part of the physician. Non-cooperation on the part of the physician would prevent the experiments from being carried out and effectively thwart any scheme to select for death six feet tall, blue-eyed, blond males. Hence, the physician’s acquiescence would involve complicity in the murder of persons whose lives would otherwise be spared. Judaism teaches that a person is obligated to suffer martyrdom rather than cause the death of another, even if his action is only an indirect cause of the illicit taking of a human life. This is so even if a specific number of persons will be put to death in any event and the issue is only selection of particular individuals.”

    By the same token, RMDT argues in his HODS interview that if one should assume that a brain dead patient is doubtfully alive, then by my registering for the organ, I am causing the doubtful death of the donor (on the side of the doubt that he isn’t already dead). And even if many others are waiting for the organ, still if I refuse the organ it will take at least several minutes longer (simply for administrative reasons) to find another recipient. And thus I must forfeit my life as a matter of Kiddush Hashem rather than doubtfully cause the donor’s death. On the other hand, if brain death is death, then it is proper to register for an organ to save one’s life.

    The source to which you have directed us therefore confirms the urgent importance of a conference of Gedolim over the medicolegal definition of life.

  136. Jon_Brooklyn asks: “R. Gil: I think I finally understand your position. You think that taking the organs out of a brain-dead patient is not moral murder, but is Halakhic murder, which is why you’re willing to look at this through “elu v’elu” lenses. Could you confirm this is what you’re saying?”

    To which there has been no response. I think the crux issue for Rabbi Student is that he finds it hashkafically an impossibility to distinguish between “moral” and “halachic”. By definition, as I understand him, there can be no halacha paskened by his choice of Gedolim that is “morally tenuous”. And, hence, the accusations of “incendiary”, “Conservative” ve’chulai.

  137. >>I don’t recall the paper using the word “unbiased” or anything similar. On what page is it?

    Gil,
    It’s on p. 10: “Most importantly, it should be known that our inquiry was undertaken with only two preconditions: …and
    secondly, to be engaged in an unfettered search for the truth.”

    You may not read “Unfettered search for truth” as unbiased, but everyone else does. Perhaps that’s the reason you and almost everyone else here often seems to be talking at cross-purposes regarding the nature of the report. You either missed this key line or read it entirely differently from (most) everyone else.
    (And you were the one who dared to imply that those who were arguing with you had not read the report.)

  138. Regardless of the posted statement about the statement, which illustrates what RYBS once commented about re the respective views of the Agudas HaRabbonim and the RA about the halachic issues involved with electricity-that the Agudas HaRabonim understood Halacha , but not the scientific issues and the RA understood the scientific issues, but not the halacha-the facts remain that the RCA position paper has to be twisted like a pretzel to be considered a formal Psak, that the RCA has never taken a formal stance in support of or against brain death, and that the RCA’s latest statement is hardly a change of a POV. OTOH, I agree with R Adlerstein’s POV that one does not effectuate halachic change by a petition on a website.

  139. Meir Shinnar: the LOGICAL implication of these three statements is that if one wants an organ donated, but does not want Jews to donate, one wants it donated by someone – which means a nonJew

    Hirhurim
    One person’s logical conclusion is another person’s convoluted assumption. It is simply wrong — immoral! — to misrepresent the RCA paper or the poskim it quotes as advocating the harvesting of gentiles for organs.

    Can you point out the breakdown in logic? As a mathematician, it seems fairly straightforward, even if the conclusion is unpalatable to you. If a posek advocates a person signing up for a transplant, then he is advocating (or, at the least, not vehemently opposed to) harvesting someone’s organs – and if the posek is opposed to Jews donating organs, then he prefers gentiles donating them (and this is explicit in RSZA – as well as in why there is charedi opposition to voluntary donation in Israel) – even if he would accept anyone’s organs). I understand your vehemence, but not your logic.
    Although I am glad that we agree that the position advocated by the RCA (as understood by most readers) is wrong and immoral…
    me
    Clearly the RCA paper was not a formal psak.
    Hirhurim
    Exactly! We are making progress today.-

    There is a difference between a formal psak and a policy change. Investigating changing an established policy is itself a policy change – and when the investigation by the committee is clearly biased against the old policy, it even more strongly proves a policy change.

  140. Update to my comment at 2:39 p.m., (4th paragraph).

    I see now that RSZA agrees with RJDB & RMDT to challenge RMF’s ruling that next-of-kin consent is required for cadaveric organ donation. In the following responsum published in Shulchan Shelomoh, Erkei Refu’ah II, pp. 42-43 , RSZA renders this point(although curiously he does not mention the fact that he is contradicting RMF. Again, perhaps by the time this responsum was written in the early 90’s, public perception toward organ donation had changed). Tangentially, RSZA also further clarifies his opinion (discussed on the News & Links forum) that it will not help for the brain dead donor to have granted advance permission to sacrifice his doubtful life to save the would-be-organ-recipient:

    “It is an absolute prohibition (issur gammur) to be a doubtful murderer even if by doing so we can definitely save the life of others. And all the more so in a situation where the saving [of the lives of others] is doubtful. And it is clarified in the Acharonim [Shu”t Radba”z III, no. 1052 {reprinted in newer editions as no. 627}] that a person is not obligated to lose even one limb in order to save others. And all the more so is this true when they are doubtfully taking from him all his life (and even if he is anyway a treifah such that one who kills him is exempt, still it appears to me that we may not doubtfully kill him in order to save someone else), and it does not help at all in this situation even if the donor gives his permission for this [before he entered a state of brain death].

    And even though it is obvious that we are obligated to offer a limb from a corpse in order to doubtfully save an endangered living patient before us – without thinking at all about the consent of the deceased or of his relatives – this is only regarding a limb of the deceased but not from a gossess, and as has been clarified the principal law is that a person may not steal the limb of his friend in order to save his own life, and all the more so a third party may not do so.

    And it further seems to me that even if we will hold that if a gangster tells a Jew to kill a gossess ‘and if not I will kill you’, that the Jew should transgress and not be killed, that is because the Jew is anoose (under force majeure) to save his own life. But this is not relevant to our case to permit killing a gossess in order to remove from him a heart or a liver even if he wants through this to save another Jew.”

    S. Spira’s observation: I note a paradox in RSZA’s words. He writes it is an “absolute prohibition” to be a “doubtful murderer”. That sounds like a setirah mineih uveih. What he evidently means is we cannot combine this safek with other sfekot to produce an ultimately lenient verdict. And thus the interdiction is “absolute” in his opinion, even though the interdiction is “doubtful” at its source.

  141. IH: I apologize if I responded harshly or rudely to you. B”n I will go back and read through the exchange to see if I owe you any more specific apology.

    Jerry: For one thing, others with knowledge have pointed out that this is not normally how organ donation works…

    Others with knowledge have pointed out that most of the time there is a long list of potential recipients.

    Participation in a system that encourages murder is unacceptable from any perspective…

    I agree, except that here there are differing definitions of murder. Either I consider Robby Berman someone who incites toward murder or I recognize that on complex matters such as this there are multiple views that can be followed. Even if I strongly advocate one view, I can acknowledge the right of someone else to strongly advocate his view.

    IH: Thank you for bringing to my attention Jon_Brooklyn’s comment, which I had previously overlooked.

    Jon_Brooklyn: You think that taking the organs out of a brain-dead patient is not moral murder, but is Halakhic murder

    No. I see this as a gray area where different but respectable views can exist.

    MDJ: You may not read “Unfettered search for truth” as unbiased, but everyone else does.

    It’s the exact opposite! It means that the paper will lean toward what it considers to be truth.

    (And you were the one who dared to imply that those who were arguing with you had not read the report.)

    I read it.

    Meir Shinnar: Can you point out the breakdown in logic?

    Yes. Your two unstated assumptions that 1) there is only one acceptable view within halacha and 2) gentiles should not be bound by halachic definitions. I believe the former is obviously incorrect to all those engaged in this discussion and the latter is debatable. Most importantly, the paper discusses current circumstance and does not address the scenario of all Jews accepting halacha. You are presumptuously extrapolating in order to defame rabbis. I find that morally untenable.

    There is a difference between a formal psak and a policy change.

    Yes, there is. This paper represents neither.

    Investigating changing an established policy is itself a policy change

    I dispute this assertion but it is irrelevant, because you are incorrectly assuming that this paper was an investigation of change.

  142. MDJ: You may not read “Unfettered search for truth” as unbiased, but everyone else does.
    Hirhurim
    It’s the exact opposite! It means that the paper will lean toward what it considers to be truth.
    It does mean that it will be intellectually honest – and it wasn’t.
    There is a difference between someone who honestly presents all sides – in an “unfettered search for the truth” – and then concludes that one side is right, and someone who distorts and misrepresents the data on one side. One can, in such an unfettered search, come to the same conclusions as the RCA paper – but not through that process.

    Meir Shinnar: Can you point out the breakdown in logic?

    Yes. Your two unstated assumptions that 1) there is only one acceptable view within halacha and 2) gentiles should not be bound by halachic definitions. I believe the former is obviously incorrect to all those engaged in this discussion and the latter is debatable. Most importantly, the paper discusses current circumstance and does not address the scenario of all Jews accepting halacha. You are presumptuously extrapolating in order to defame rabbis. I find that morally untenable.

    first, about whether only one halacha being correct – I believe in elu veelu, and the rabbinic statement about organ donation was also predicated on elu veelu (as the basis for saying that as both positions being acceptable, people should refer to those who allow..)

    However, the thrust of the RCA paper (and much of haredi psak) is that the brain death position is just halachically untenable – and that no major posek truly supported brain death. (That is why it generated so much heat). While the clarification took an elu ve’elu approach, and you may hold elu ve’elu, the paper clearly did not, nor do many of the major players . There is a reason why there is opposition to donation in Israel – even by willing donors. The recent case of the soccer player – and intervention by a haredi rav – is just an example.

    Similarly, if one looks at rav Sacks’s position, he does not state that there are multiple opinions (elu ve’elu) – but that his bet din does not allow it.

    If a Jewish family which did not have a previous position would call up one of the those opposed to brain death about whether a family member may be a donor, what do you think they would tell them? Elu veelu?? Please ask one who permits?? No, they would tell them not to donate If someone signed an organ donor card based on a psak, and his family asks whether to honor the psak – do you think they will be told elu ve’elu?? Let’s be honest. One, perhaps, be willing to not write out of the community those who support donation – but the machmir side is not elu ve’elu..

    WRT current circumstances, again, you are being disingenuous. yes, we are aware that many people do not follow halacha – but we normally do not base public policy, except in exceptional bediavad circumstances, on using the nondati as a shabbat goy….

    Second, WRT gentiles – while there may be a debate about whether the halacha here should extend to gentiles (note: Doron Beckerman, for example, was explicit that we do not have to, in comparing this to rav Kook’s argument about cadavers for medical school – we care about this, you think it is fine, so we are just following your code..) – but even if extends to gentiles, it is clear that RSZA viewed that is preferable that it be gentiles who are donors. Furthermore, as one does not want it to be Jews – WHO IS LEFT???

    Of course, one can rephrase the criticism to satisfy your two points – we will take from gentiles and those jews who do not follow us (although, if asked,we will tell these those Jews they are wrong.). Do you think that is any cleaner??
    Me
    Investigating changing an established policy is itself a policy change
    Hirhurim
    I dispute this assertion but it is irrelevant, because you are incorrectly assuming that this paper was an investigation of change.

    An investigation of an established policy is not done unless one is considering the possibility of changing it. It does not mean that one has decided to change it – but that is under consideration…

  143. Hirhurim: Even if I strongly advocate one view, I can acknowledge the right of someone else to strongly advocate his view.

    Agreed 100%. If someone else chooses to donate his organs after brain death because he accepts the brain death criteria, that’s his business. But what you cannot do is RELY on his view simply because it’s advantageous to you to do so.

    As far as there being a long list of recipients that can essentially be chosen out of a grab bag, I’d be interested to know what Charlie Hall or Noam Stadlan have to say about this. This is an argument in metzius and should be pretty easy to clear up. I disagree with you in either case, but if I am right about how organ donation works, then even you would have to concede.

  144. Another thing that strikes me about some of those on the anti-BD/pro-receiving side is this sense that their side deserves to be inured from the consequences of their decisions. It’s become quite common to hear some people demand that their opponents stop pointing out any potential ethical problems with the anti-BD/pro-receiving side, because this will only incite bad feeling, or hatred (“blood libel,” one person said) against the anti-BD/pro-receiving side.

    This is seems unreasonable. If you want to take a position, but this position implies a morally problematic stance on something like organ donation, that’s your problem. No one is forcing you to adopt this view. If you fear a “blood libel” then maybe it’s time to chance sides. If you choose not to, that’s okay. But prepare to deal with the consequences, because they’re deserved.

  145. Dr. Shinnar,

    Yi’yasher kochakha; I agree with you. In my opinion, “Elu va-Elu” applies in theory. In my opinion, in practice, on the laws of retzichah and piku’ach nefesh, there is only doctrine of death that can be applied by an Orthodox Jewish community as a unified whole. At the present time we are uncertain what that doctrine is. This is not a badge of shame; on the contrary (like the analogy to Heisenberg’s quantum physics) it is a badge of honour that – under the auspices of our Rosh Yeshiva R. Student – we have contemplated the sugyot on the medicolegal definition of life, and we realize that there is some information is beyond human comprehension that only HKB”H knows. We are also uncertain whether the laws for homicide conducted by Noahides are different from the laws of homicide for Jews. Therefore, no Jew may register for organs until the Gedolim will come to an unanimous consensus on the medicolegal definition of life. All people in organ failure must forfeit transplants rather than potentially cause other people’s deaths. This will be my “lo tirtzach” speech to my congregation this coming Shabbat.

    If, however, the Gedolim will confer, and will arrive at a consensus to refute me, then that’s a different story, and “siman tov umazal tov yihei lanu ulikhol Yisra’el”.

  146. Glatt some questions

    As far as there being a long list of recipients that can essentially be chosen out of a grab bag, I’d be interested to know what Charlie Hall or Noam Stadlan have to say about this. This is an argument in metzius and should be pretty easy to clear up. I disagree with you in either case, but if I am right about how organ donation works, then even you would have to concede.
    —————————————-
    Charlie or Noam are the best to explain how the transplantation process works. I do know that in most cases there is more of a demand for organs than a supply. However, I also know that an organ is not harvested for transplant until a match is identified, which means there is a direct connection between recipient and donor (ie, the person was murdered if you believe that BSD is not halachic death precisely because the recipient needed the organ). The question then becomes if there are other people who can use the organ who are waiting behind the recipient, whether that changes the situation (the argument of “well, he will be murdered anyway”).

    Certainly this is morally and ethically repugnant. I also believe that it is halachically problematic as well, but will leave that to the poskim who are far more qualified than I to render a decision on this.

    By the way, I had mentioned before that Rabbi Bush has been silent during this brouhaha. The Forward recently updated its original article on the subject, and it now includes a statement by Rabbi Bush. It looks like he is distancing himself a bit from the “taking but not giving” position.

    http://www.forward.com/articles/134640/

    Perhaps this position may indeed be more problematic than some think.

  147. Hirhurim on January 19, 2011 at 3:09 pm

    Daniel: First, thank you for using your name. I generally agree with you about this. This was Rav Goren’s position on Israel, as well, that they cannot build a society based on the concept of “Shabbos goy”. In this case, though, I don’t think it applies. If no one donates organs, the society can still continue to function. These poskim are not building an unsustainable or non-functioning society. They are just dealing with circumstances of current reality.

    Having shockingly rates of illegal organ procurement is functional? Having Hareidim, among other Israelis, implicated in international organ trafficking is functional?

    Granted, Israeli society is replete with dysfunction, but don’t confuse the status quo with a sustainably functioning society.

    [Also, if I may engage in some halakhic speculation: if one is generally forbidden from benefiting from idolatry, shouldn’t we extend this, at least the spirit of the law, to the the other yehareg v’al ya’avor sins? There is a qualitative difference between benefiting from a regular sinful action and a capital crime. And it sends the message: my blood is in fact redder than my fellow man’s.]

  148. “In a phone interview, [Bush] qualified the study’s most inflammatory line — concerning the unqualified acceptance of receiving organs from brain dead donors while leaving the permissibility of organ donation by those in this state under doubt. This was not a position the committee meant to encourage, Bush explained, but was rather meant as a retroactive statement about what should be done with an available organ.”

    So if there is an extra organ lying around, I guess a Jew could take it. But presumably he should not, in any shape or form, be involved in the process of actively procuring an organ by joining a list of people requesting that one be removed.

  149. I have not been involved in transplants for quite a while. However, my impression is that there is quite a waiting list for organs, and that it is very likely that more than one person on the list will match(size, blood type, immunological typing, etc) for a given organ. I would emphasize however that at the moment that the organ is removed, the recipient has already been contacted and is probably already in the hospital being prepped to receive.

    Regarding the other discussion thread, I think that Rabbi Bush could certainly clear things up by addressing many of the issues raised, however, for his own purposes, he has chosen not to, and allowed the issues to fester.

  150. Here’s an interesting scenario to contemplate: imagine an alternate universe where halacha certainly allowed BD organ transplantation, but for some reason the ethics of the rest of the world – all gentile religions and societies – considered it murder and therefore illegal. Yet the Jews allowed it. Is it ethical for the 7 billion in the world who would never donate to accept donations from the 14 million Jews who didn’t see it as murder?

    Of course in this scenario organ donation never would have happened, but let’s put that aside. Let’s pretend that Israel pioneered and developed it all by itself, in accordance with uniquely Jewish ethics and law which allowed it. Is the rest of the world right to line up for Jewish organs?

  151. Waiting list for organs.
    Having been involved in transplants, in general, there is a waiting list for all organs. However, if there is some unusual feature that makes it harder to match (eg, size), or is not in pristine condition – that would therefore be passed on by many centers, but accepted for someone in more desperate immediate need who can not wait for a better fit – there may not be a waiting list for that particular organ.
    Again, when a donor is identified, prospective recipients for all organs are identified by a central agency using an algorithm with a priority scheme – and the programs for the top few on the list are identified to see whether they would accept, or need further testing (which is not always feasible to do). After some time, the programs are given the choice – and the top priority patient whose program accepts the patient gets it. timing of harvesting depends, within a certain time window, on coordinating between the the programs for the different recipients for all the organs- so a different recipient may mean harvesting from the donor is somewhat delayed. The recipient is typically already in the operating room when the donor organs are harvested. This is a close connection between the recipient and the planning of the organ harvesting.

  152. Glatt some questions

    “In a phone interview, [Bush] qualified the study’s most inflammatory line — concerning the unqualified acceptance of receiving organs from brain dead donors while leaving the permissibility of organ donation by those in this state under doubt. This was not a position the committee meant to encourage, Bush explained, but was rather meant as a retroactive statement about what should be done with an available organ.”

    So if there is an extra organ lying around, I guess a Jew could take it. But presumably he should not, in any shape or form, be involved in the process of actively procuring an organ by joining a list of people requesting that one be removed.
    ———————————-
    Trust me, there are no loose kidneys or hearts or lungs lying around.

    Now it’s up to Rabbi Bush (and other folks who do not hold by brain stem death) to clearly articulate their position regarding receiving organs, keeping in mind how the transplant process actually works. Will they be consistent and rule that it’s murder to take am organ from a brain dead person (thereby not allowing folks who need them to procure organs), or do they have another explanation as to why it’s OK to receive an organ but not donate one. Inquiring minds want to know…

  153. hirhurim:I don’t recall the paper using the word “unbiased” or anything similar. On what page is it?
    pages 0-11
    “This Study is Designed to Assist Members of the RCA in the Process of Psak Halacha”..”commissioned its Vaad Halacha to investigate the issues pertaining to organ transplantation and to provide clarity and direction for its members.”
    “it should be known that our inquiry was undertaken with …to be engaged in an unfettered search for the truth”
    “The purpose of this study was ….but to evaluate each opinion on its own merits.”

    the rca presented or implied a thorough fair and unbiased view based on merits. if many people – especially medical professionals – believed its an unfair and slanted bias view then they intentionally or unintentionally lied – To convey a false image or impression – and their endpoint – to provide clarity, unfettered search, and evaluate each opinion on its on merits – was not met.

    hirhurim: “There is a difference between being untrue and being wrong. You can argue that the RCA paper is wrong. ”
    i am not saying they are wrong or stated untruths – conveying a false impression – see above – based on what they wrote and their goals is another form of lying.

  154. I have a suggestion. How about BOTH sides stop using the words “lie” or “lying” in this discussion. Adults discussing and debating serious issues shouldn’t sound like kids fighting during recess or, worse, like members of Congress (“you lie”!). It really doesn’t add anything; indeed, it detracts.

  155. the end result of the rca’s paper is that their rabbis will not be viewed as fair and open minded(to science, technology, change in general) arbiters of halacha with responsibilty to the community for the outcomes and consequences of their decisions ( here on potential moral issues that people have honed in on).
    its a fissure that is beginning to widen with a general lack of respect to them and their institution by the educated laity. in the time of the mikdash the gemera relates that even though beit hillel and shammai disagree on many issues -especially kidushin/gittin- they still intermarried and were not – in my understanding- sectarians. i wonder if that will be true in our future generations.

  156. josh kaplan – i apologize i was just trying to clarify what it meant and how someone can use the term in our context.

  157. R. Gil: IH’s interpretation of my comment was not where I intended to go with it. My point was, if you held it were moral murder, you’d have a problem with people being pro-BD altogether, with people benefiting from it, etc. If you held it were merely Halakhic murder, that is, murder based on Halakhic principles that do not necessarily correspond to moral principles, then you would say, “those who hold this way Halakhically, well they can’t do anything; those who are mekil can very legitimately harvest organs; and because there’s no moral issue, there’s no reason not to accept the help of those that are mekil.”

    The reason I think this formulation is superior to yours (granted it’s your views we’re talking about, but still) is that if it were just a “gray area” then the moral issue is just as unclear as the Halakhic issue, and it would be like saying “well I think tax fraud is stealing, you think it isn’t, would you like to be my accountant?” (If you don’t like that example then use some other.) Obviously, if we have any position on a moral issue, we don’t want to make deals with people that are engaging in the morally questionable activity – especially murder. But if we have Halakhic positions, then we have a lot more room to agree to disagree about the technical Halakhic arguments, precisely because of elu v’elu.

    Also (but really, this isn’t important to my formulation) it makes very little sense, to me at least, to claim “killing” a brain-dead person is moral murder. Clearly, it makes a lot more sense to call it murder in a Halakhic context.

    That’s all I was saying.

  158. Glatt: Trust me, there are no loose kidneys or hearts or lungs lying around.

    This is my point. Thank you very much to all those who assisted in clarifying this matter. The hypothetical scenario to which Gil and others claim their position on receiving/not-donating is restricted does not seem to me to actually exist.

    One important point that makes this clear is the distinction between the following two scenarios: a) Ploni has already been killed/murdered, and the only question is what Almoni is now to do with him; b) Ploni has decided that he will accept being killed/murdered, but won’t do so until he has coordinated it with Almoni.

    The end result may be the same, and both scenarios raise ethical questions, but I think the questions are sharper in the second scenario. And my impression from the comments above is that organ donation (at least from the perspective of the anti-BD side) takes the form of the second scenario.

  159. HODS’SECRET IS OUT
    1. Alan wrote “The HODS educational pamphlet shows a quote from Rav Moshe Feinstein which is misleading.”

    The HODS educational pamphlet (page 7) does show a quote from Rav Moshe’s teshuva (IM. YD. Vol. II. Siman 174) saying “donating an organ from the dead would constitute a mitzvah… saving a life has priority.” I’m not sure what we are guilty of implying. We do not say in the pamphlet that Rav Moshe accepted brain death and in fact we do say in our pamphlet that brain death is debated “among rabbinical authorities with scholars on both sides of the debate.”

    It is however well known to the public, that Rav Moshe wrote in his responsa and letters that he accepted brain death and most all people who had ever discussed this with him attest to this fact. People have a right to say they find Rav Moshe’s teshuvot confusing, unclear, and contradictory and the public can decide for themselves by reading his writings and watching video testimonies on our website (www.hods.org) such as testimonies from Dr. Frank Veith, Dr. Ira Greifer, Rabbi Shabtai Rappaport, etc.

    Interestingly enough, I just met a physician (Dr. Aidleman) yesterday in Jerusalem who was present at one of those meetings with Rav Moshe and I interviewed him on camera and the video will go up on HODS site next week.

    2. Alan wrote “HODS adverts is using a marketing tool known as “social proof”. When human beings are unsure of how to act, we look around to see what others are doing…Here’s my problem with the way HODS…they haven’t told the public the full story. How many of those people checked the box for brain death and how many for cessation of the heartbeat? Until HODS shares that info, they are not informing the public of the full story & can lead many people to make a potential error of huge potentially huge proportions.”

    Alan, if you would have given HODS kaf zchut you might have assumed that perhaps many of the rabbis who have the HODS organ donor have indicated they accept brain death, and the board of HODS felt that to show that information would unduly give the impression that most all rabbis accept brain death. (They might or might not, but we didn’t want to mislead people.) The secret is 99% of the rabbis on the HODS site and its advertisements accept and choose the brain death option. Now will you criticize me for sharing that information with the public, criticizing me if I don’t share and again if I do share?

    3. Dr. Zacharowitz wrote “I have repeatedly invited Berman to sit down with leading halachic authorities to study this topic and engage in the classic give-and-take of halachic discourse, as Rabbi Dr. Steinberg has done with his halachic mentors (all of whom rejected “brain death”). Berman has declined to do so…. Why won’t Berman do the same?
    Dr. Zacharowitz, I don’t recall your invitation to study this topic. If you mean that you once asked me to pay money to sign up for your Yarchei Kallah program that you market to the public, I am not interested in doing so. If you want to invite me for free and if I happen to be in America, I will be happy to consider attending – schedule permitting.

    As you can imagine, I am not so eager to do so because I have spent 9 years of my life reading most of the medical and halachic literature and interviewing dozens of rabbis, some of them gedolei Hatorah on this issue and while one can go deeper and deeper into torah – dwelling on the same issue over and over at a certain point chalas [Arabic for enough already]… If you feel there are halachic or medical articles that I would benefit from and you assume I have not read, please feel free to send them to me.

    I agree to participate in any debate or discussion with you or anyone on these topics as long as I am not forced to pay money and as long as my schedule allows for it. But I think there are people much smarter and more knowledegable people than me (e.g. Neurosuregon Noam Stadlan, Dr. Rabbi Avraham Steinberg) that would make for a much better discussion. May I remind you that I am not a rabbi and I am not a doctor.

    Dr. Zacharowitz wrote that I gives “such short shrift to the views of those many rabbis opposed to “brain death” and lists Rabbi Moshe Sternbuch among the supporters of “brain death,” a demonstrably false assertion.”

    The articles page of the HODS website has any – and every – article ever written against brain death because we believe in showing both sides of the debate. If you are aware of any such articles that are not listed there please send them to me that I may post them.

    In addition, I have asked Rabbi Avraham Avraham and many other rabbis who reject brain death to allow me to interview them on camera so we can put them on our videopage and present their side of the debate as we do in our articles section. They have refused. Perhaps you can use your close contact with Talmudic scholars who reject brain death to allow me to interview them. They are given short shrift on our video page, but they choose to be shrifted – we want them there.

    Concernig Rav Sternbuch, you will be pleased to know that Rav Sternbuch from the Eidah charedis met with Rav Avraham Steinberg where the former told the later that he does not hold that a beating heart is a sign of life and he understands Yoma 85a to mean respiration is the key so that if a person cannot breathe on their own and they look dead they are according to him dead. Since a person who is brain dead meets Rav Sternbuch’s criteria that is why I include him in that category of people who accept brain death, although perhaps he never used that term (I was not present at the meeting.)

    Lastly, Dr. Zacharowtiz, please refer to me as Robby, Robby Berman, or Mr. Berman. Thank you.

  160. HOW MANY HODS RABBIS ACCEPT BRAIN DEATH?

    1.Alan wrote “The HODS educational pamphlet shows a quote from Rav Moshe Feinstein which is misleading.”

    The HODS educational pamphlet (page 7) does show a quote from Rav Moshe’s teshuva (IM. YD. Vol. II. Siman 174) saying “donating an organ from the dead would constitute a mitzvah… saving a life has priority.”

    I’m not sure what we are guilty of implying. We do not say in the pamphlet that Rav Moshe accepted brain death and in fact we do say in our pamphlet that brain death is debated “among rabbinical authorities with scholars on both sides of the debate.”

    But it is no secret that Rav Moshe wrote in his responsa and letters that he accepted brain death and most all people who had ever discussed this with him attest to this fact. People have a right to say they find Rav Moshe’s teshuvot confusing, unclear, and contradictory and the public can decide for themselves by reading his writings and watching video testimonies on our website (www.hods.org) such as testimonies from Dr. Frank Veith, Dr. Ira Greifer, Rabbi Shabtai Rappaport, etc.

    Interestingly enough, I just met a physician (Dr. Aidleman) yesterday in Jerusalem who was present at one of those meetings with Rav Moshe and I interviewed him on camera and the video will go up on HODS site next week.

    2. Alan wrote “HODS adverts is using a marketing tool known as “social proof”. When human beings are unsure of how to act, we look around to see what others are doing…Here’s my problem with the way HODS…they haven’t told the public the full story. How many of those people checked the box for brain death and how many for cessation of the heartbeat? Until HODS shares that info, they are not informing the public of the full story & can lead many people to make a potential error of huge potentially huge proportions.”

    Alan, if you would have given HODS kaf zchut you might have assumed that perhaps many of the rabbis who have the HODS organ donor have indicated they accept brain death, and the board of HODS felt that to show that information would unduly give the impression that most all rabbis accept brain death. (They might or might not, but we didn’t want to mislead people.) The secret is 99% of the rabbis on the HODS site and its advertisements accept and choose the brain death option. Now will you criticize me for sharing that information with the public, criticizing me if I don’t share and again if I do share?

    3. Dr. Zacharowitz wrote “I have repeatedly invited Berman to sit down with leading halachic authorities to study this topic and engage in the classic give-and-take of halachic discourse, as Rabbi Dr. Steinberg has done with his halachic mentors (all of whom rejected “brain death”). Berman has declined to do so…. Why won’t Berman do the same?

    Dr. Zacharowitz, I don’t recall your invitation to study this topic. If you mean that you once asked me years ago to pay money to sign up for your Yarchei Kallah program that you market to the public, I am not interested in doing so. If you want to invite me to attend for free and if I happen to be in America, I will be happy to consider attending – schedule permitting.

    As you can imagine, I am not so eager to do so because I have spent 9 years of my life reading most of the medical and halachic literature and interviewing dozens of doctors and dozens of rabbis, some of them gedolei Hatorah, on this issue and while one can go deeper and deeper into torah – dwelling on the same issue over and over again for 9 years at a certain point… chalas [Arabic for enough already]… If you feel there are halachic or medical articles that I would benefit from and you assume I have not read, please feel free to send them to me. [email protected]

    I agree to participate in any debate or discussion with you or anyone on these topics as long as I am not forced to pay money and as long as my schedule allows for it. But I think there are people much smarter and more knowledegable than me (e.g. Neurosuregon Noam Stadlan, Dr. Rabbi Avraham Steinberg) that would make for a much better discussion. May I remind you that I am not a rabbi and I am not a doctor.

    Dr. Zacharowitz wrote that I gives “such short shrift to the views of those many rabbis opposed to “brain death” and lists Rabbi Moshe Sternbuch among the supporters of “brain death,” a demonstrably false assertion.”

    The articles page of the HODS website has any – and every – article ever written against brain death because we believe in showing both sides of the debate. If you are aware of any such articles that are not listed there please send them to me that I may post them.

    In addition, I have asked Rabbi Avraham Avraham and many other rabbis who reject brain death to allow me to interview them on camera so we can put them on our videopage and present their side of the debate as we do in our articles section. They have refused. Perhaps you can use your close contact with Talmudic scholars who reject brain death to allow me to interview them. They are given short shrift on our video page, but they choose to be shrifted – we want them there.

    Concernig Rav Sternbuch, you will be pleased to know that Rav Sternbuch from the Eidah charedis met with Rav Avraham Steinberg where the former told the later that he does not hold that a beating heart is a sign of life and he understands Yoma 85a to mean respiration is the key so that if a person cannot breathe on their own and they look dead they are according to him dead. Since a person who is brain dead meets Rav Sternbuch’s criteria that is why I include him in that category of people who accept brain death, although perhaps he never used that term (I was not present at the meeting.)

    Lastly, Dr. Zacharowitz, please refer to me as Robby, Robby Berman, or Mr. Berman. Thank you.

  161. Meir Shinnar: There is a difference between someone who honestly presents all sides – in an “unfettered search for the truth” – and then concludes that one side is right, and someone who distorts and misrepresents the data on one side.

    I agree, which is why I am troubled by Robby Berman’s consistent refusal to acknowledge that there are conflicting reports about R. Moshe Feinstein’s view. I didn’t see any distortions or misrepresentations in the RCA paper. If you did, I think it would be helpful to everyone for you to compile a list and send it to the RCA.

    However, the thrust of the RCA paper (and much of  haredi psak) is that the brain death position is just halachically untenable – and that no major posek truly supported brain death.

    Perhaps we read different papers. I don’t recall any denial of, for example, R. Shaul Yisraeli’s position. Merely disagreement with some of his arguments.

    Similarly, if one looks at rav Sacks’s position, he does not state that there are multiple opinions (elu ve’elu) – but that his bet din does not allow it.

    Have we really reached the point where a beis din and chief rabbi cannot pasken for their community?

    If a Jewish family which did not have a previous position would call up one of the those opposed to brain death about whether a family member may be a donor, what do you think they would tell them? Elu veelu??

    Of course a posek will pasken what he thinks is the halakhah. That is how pesak works, even within an Eilu Va-Eilu framework.

    WRT current circumstances, again, you are being disingenuous. yes, we are aware that many people do not follow halacha – but we normally do not base public policy, except in exceptional bediavad circumstances, on using the nondati as a shabbat goy….

    You base public policy on the current situation and foreseeable future. Since medical technology changes so quickly, you really shouldn’t be looking too far into the future for this. For all we know, organ donations will not need brain dead patients in twenty years.

    Of course, one can rephrase the criticism to satisfy your two points – we will take from gentiles and those jews who do not follow us (although, if asked,we will tell these those Jews they are wrong.). Do you think that is any cleaner??

    THIS IS KEY! We can rephrase this as: “We will take from Gentiles and almost all Jews.” That is a far cry from what some have been telling the media about this so-called anti-gentile RCA paper.

    Jerry: Agreed 100%. If someone else chooses to donate his organs after brain death because he accepts the brain death criteria, that’s his business. But what you cannot do is RELY on his view simply because it’s advantageous to you to do so.

    Again, you put me in the awkward position of encouraging my friend to donate organs to anyone but me. How does that make sense?

    Another thing that strikes me about some of those on the anti-BD/pro-receiving side is this sense that their side deserves to be inured from the consequences of their decisions. It’s become quite common to hear some people demand that their opponents stop pointing out any potential ethical problems with the anti-BD/pro-receiving side, because this will only incite bad feeling, or hatred (“blood libel,” one person said) against the anti-BD/pro-receiving side.

    We need to have respectful and responsible dialogue. Hystericsy hurt, particularly in this case. On cases of communal welfare, we need to choose our language carefully.

    Glatt: I do know that in most cases there is more of a demand for organs than a supply. However, I also know that an organ is not harvested for transplant until a match is identified, which means there is a direct connection between recipient and donor

    Correct. Which means that this donor would probably have his organs harvested regardless of any specific patient’s decision to reject.

    Certainly this is morally and ethically repugnant.

    Do you oppose organ donation to people who have to not themselves registered to donate? Why is that any less repugnant? They will take but not give.

    MJ: RSZ Auerbach did not allow taking organs in Israel.

  162. Glatt: My understanding is that the RCA paper was not paskening,  just quoting the pesakim of others.

    Ruvie: The quotes you brought from the paper about its evaluating arguments on their merits are precisely why you should expect the paper to lean towards one side if it feels it is stronger.

    Jon_Brooklyn: Abortion is another gray area where I think we would do better to try to get along rather than demonize each other as murderers.

    Jerry: This is my point. Thank you very much to all those who assisted in clarifying this matter. The hypothetical scenario to which Gil and others claim their position on receiving/not-donating is restricted does not seem to me to actually exist.

    It’s the exact opposite. It’s my point. It doesn’t matter whether a specific patient accepts or refuses an organ. That organ will be harvested.

    However, the case everyone seems to be denigrating – when an organ has been harvested but not yet inserted into a patient – isn’t hard to imagine. At the last minute, a patient starts to get religion and asks a rabbi whether he should accept the organ that was harvested from someone whose heart was beating. It probably happened once or twice and the question was raised up the flagpole and entered halakhic discourse.

  163. Robby Berman: I think your case would be more convincing if it wasn’t so one-sided. Everyone else here knows that there are testimonies to the contrary regarding R. Moshe Feinstein’s view. We’ve all seen R. Moshe Sherer’s letter and the RCA paper. And we all know that R. Moshe didn’t speak English so many of those doctors only heard what a translator said. Who was translating for them?

    I’ve said before that I find this all confusing. I can’t deny R. David Feinstein’s, R. Tendler’s and R. Rapoport’s testimonies. Bt when you deny the others, and especially how you deny all the testimonies about Rav Soloveitchik, it’s hard to take your arguments at face value.

  164. Robby Berman, I once asked a world class Posek what info he has that is holding him back from seeing things the way RMDT does.

    His reply: We are talking about establishing a new definition of the time of death in Halacha based on what RMF held. RMF was an absolute titan. Had he been absolutely clear on this in conversations with numerous students, rabbis, public forums, numerous articles, etc., the world would have had the time to fully understand his take on this matter which truly invovles lfe and death.

    As we both know, this was not at all the case. There is so much confusion as to what he honestly held & how he understood this entire matter.

    We cannot create a new Halachic criterea for determining the time of death based on anything less than absolute full clarity by a titan such as RMF – and not by oral testimonies from a few people – regardless as to how close to him they were.

    We both know that there is a world of dispute over what RMF meant in his few responsa on the matter. No one outside of a very small band of people had a chance to clarify this with him.

    To try and make the case that HODS can claim to have RMF’s full backing is 100% disengenuous.

  165. Glatt some questions

    Certainly this is morally and ethically repugnant.
    ————–
    Do you oppose organ donation to people who have to not themselves registered to donate? Why is that any less repugnant? They will take but not give.
    ——————
    It is less repugnant because most folks who don’t choose to donate do so out of laziness or psychological factors. They don’t make that decision for religious reasons based on their position on brain death as halachic death. It’s only the folks who choose not to give for their religious beliefs yet who are willing to accept organs where I would make the argument that it is morally and ethically repugnant.

    Do you see the difference, Gil? You can’t lump everyone who takes and doesn’t give into one big group.

  166. I suppose a lot of the anger here is due to the fact that many people expected the RCA paper to be an impartial review of the literature, pointing out the flaws in both sides, when it is clearly nothing of the sort, rather it takes the approach of a posek who has a firm view and goes through the sources with that view in mind. For example, as has been noted, it does not quote R. Ovadia’s opinion at all. It does not mention that the Chasam Sofer’s mentioning of pulse was a big chiddush that was only present in secular literature until that time. It does not give any backround to Rashi’s view (e.g. Dr. Reichman’s article) except when it quote Dr. Steinberg, and to attack it with silly arguments; it does not mention that the Rambam and Shulchan Aruch do NOT pasken like Rash. It does not mention the teshuva in Ba’mareh Habazak 7 which more fully explains R. Yisraeli’s view. It quotes uncritically the ideas of the poskim who say that breathing is a siman of life; but cardiac activity is the siba, when there are momentous difficulties with it (besides the fact that it cannot have been the intention of Chazal or any of the Rishonim, as anyone with an understanding of medical history will realise). It does not seek to fully understand the Chacham Tzvi’s teshuva, which stresses the centrality of the heart in light of its role in RESPIRATION, which is simply factually mistaken (as Ba’mareh Habazak notes). As the Chacham Tzvi says, “the reason life depends on the breathing of the nose is because it is through the nose that the hot air from the heart leaves, and cold air enters to cool the heart. And if there is no heart, there is no breathing”. It goes on and on about the logical difficulties with accepting the cessation of spontaneous respiration as death, whilst it neglects to mention a single of the obvious conceptual problems brought up by the cardio-pulmonary standard. I could go and on, but the point is clear.

  167. Sorry – just one more obvious thing which struck me reading the paper. It makes a ganze ma’ase about the hypothalamus, without once noting Rav Tendler’s retort, that the gemara in Chulin 21a which is paskened in the Shulchan Aruch (YD 370) that someone with a broken is considered as if he were decapitated, despite the fact that the hypothalamus would clearly be operational in such a case. See here:
    http://books.google.com/books?id=3cl2DBMwAwcC&pg=PA96&lpg=PA96&dq=tendler+hypothalamus&source=bl&ots=OmWr-T8O63&sig=eW1WY1JXFLPnp7JBSgf6pnkggg4&hl=en&ei=0D84Td75MsimhAf56qGpCg&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBIQ6AEwAA#v=onepage&q&f=false

  168. Sorry, should be ‘someone with a broken NECK is considered as if he were decapitated’.

  169. Allan wrote “To try and make the case that HODS can claim to have RMF’s full backing is 100% disingenuous.”

    Alan, we never made that claim. Why do you set up a straw man? Just to knock it down? We even posted the question and answer where I asked Rov Dovid on video if he thinks Rov Moshe would have approved of getting organ donor cards. Rov Dovid said that he didn’t think so but he didn’t know.

    We did not edit that out. We could have. But we didn’t. Why? Because we want to share the truth even if it calls HODS behavior into question. Do we have a bias? Yes. Does my board and 99% of our rabbis accept brain death and support organ donation? Yes. But do we post all halachic articles against brain death on our site? Yes. Do we offer any rabbi who rejects brain death to be interviewed on video for our site? Yes. Cut us a little slack will ya?

    Gil wrote (I think it is Gil, I’m still not sure how this blog works): “I think your case would be more convincing if it wasn’t so one-sided. Everyone else here knows that there are testimonies to the contrary regarding R. Moshe Feinstein’s view. We’ve all seen R. Moshe Sherer’s letter and the RCA paper.”

    As far as my post on this blog, I thought I was giving a nod to dissenion about Rav Moshe’s writings when I wrote ‘People have a right to say they find Rav Moshe’s teshuvot confusing, unclear, and contradictory…’

    And our pamphlet is pretty even-handed and it was even vetted by a high ranking member of the Agudah as being fair and even handed. The only thing he asked me to remove, which I refused, was Rav Moshe’s picture and quote. He felt, I guess as some of you do, that putting his picture will give people the impression he would have approved of all we do.
    Gil wrote (again I think it’s Gil): And we all know that R. Moshe didn’t speak English so many of those doctors only heard what a translator said. Who was translating for them?

    Gil, your suggestion – which I have heard before – brings a smile to my face. Really! A smile, a giggle and then a laugh. A deep belly laugh. First, Dr. Greifer and Dr Eidleman (the latter who I interviewed yesterday on camera) both told me that they understood Yiddish. They weren’t fluent speakers but they grew up in Brooklyn back in the 50’s and their parents spoke Yiddish in the house (http://hods.org/English/videos/video_greifer.asp)

    Second, your suggestion that Rabbi Tendler purposely mistranslated the conversation and fooled a number of Jewish doctors who understood to some degree Yiddish and 7 medical students (I imagine since it was Einstein students some were Jewish and frum and possibly spoke Yiddish) who met Rav Moshe a number of times is quite comical. And even though Rav Moshe spoke Yiddish, I imagine he understood English to some degree as well. I think he lived in America for over 50 years. If I was Rabbi Tendler pulling shtick like that he must have been sweating bullets waiting for the shoe to drop. Waiting for either Rav Moshe to catch him mistranslating or the doctors to catch him mistranslating. It would make a funny youtube clip.

    Rav Moshe [in Yiddish]: brain death is not death
    Rabbi Tendler [in English translating for the doctors sweating a bit on the brow]: Brain death IS death.
    Rav Moshe [in Yiddish] I do not support donating the heart.
    Rabbi Tendler [in English translating to the doctors] I do support donating the heart.

    That would make Rabbi Tendler a masterfully evil genius con artist and everyone else in the room a naive moron. You have to admit Gil, it would be a pretty risky and even stupid thing to do. I mean if you were Rabbi Tendler, I think forging Rav Moshe’s signature and fabricating tshuvot would have been enough. If I was rabbi Tendler I would be making these meeting between Rav Moshe and the medical establishment. Kind of risky, kind of stupid, kind of highly unlikely.

    Gil, do you think Rabbi Tendler first checked which doctors and which student understood Yiddish and then disinvited them and then he just invited the Yiddishly challenged? Dr. Eidleman told me the meeting with him, Rav Moshe, Rav Tendler, and Dr. Greifer went on for hours. Not ten minutes. Hours, as in more than two. Do you think this is a likely or even possible scenario that Rav Tendler pulled this off?

    Your suggestion reminds me of the story with Rov Dovid and how cognitive dissonance will just not let a person – even faced with growing evidence and probability – change his mind. During a debate between Rabbi Tendler and Rabbi Bleich, Rabbi Tendler restated Rav Moshe’s position that supported organ donation even of the heart. Rabbi Bleich said Rav Moshe did not hold that position. Rabbi Tendler said Rabbi Dovid Feinstein will corrobarte this. Rabbi Bleich said he won’t. Rabbi Tendler brought a letter from Rabbi Dovid. Rabbi Bleich said it wasn’t clear enough. Rabbi Dovid wrote an addendum that was very clear. Then people said Rov Dovid’s signature was forged. And then they said Rov Moshe signature was forged on the Bondi letter. And they said Rav Moshe’s tshuvot were forged in Iggrot Moshe (only those that supported brain death of course).

    So I said I had enough of this nonsense and I paid for a videographer to go with me and another Rabbi to the Lower East Side to interview Rov Dovid on camera. As you can see from the video, he is very clear. Rav Moshe supported organ donation even of the heart. So when I show that video to people in a certain camp, do you think that convinces them that at least Rov Dovid thinks Rov Moshe supported donation of the heart? Do you know what they tell me? “We saw the video, and it was edited.”

    I really have had enough. There is nothing more I can do. People are in denial. They are in pain to think that a gadol like Rav Moshe could disagree with their gadol on a life or death issue. I’m done proving myself.

    Gil wrote (I think): “how you deny all the testimonies about Rav Soloveitchik, it’s hard to take your arguments at face value.”
    Gil, as far as I know, and please correct me if I’m wrong, the only testimony as to someone hearing Rav Soloveitchik’ position on this issue is Rabbi Walfish. All the other testimony are people who say either they can’t imagine the Rov holding such a position or that they never heard him state such a position. I hope the qualitative difference between Rabbi Walfish testimony saying he heard the Rov state his opinion and the other testimonies is clear. If you have someone who said he heard the Rov say he does not accept brain death please let me know so I can put that testimony up on my site either on video or in print.

    I going to graciously bow out now. I think I have had enough this he said she said he forged he faked stuff. I wish all of you well on your search for the truth.

  170. R Gil writes that he did not see any distortions or misrepresentations in the RCA paper. That is hard to believe since you hosted a paper that pointed out a whole host of these in the medical data and Rabbi Reifman and J have pointed out significant issues in the halachic discussion. Just because Rabbi Bush may have thought that what he wrote was true does not mean it isn’t a distortion or misrepresentation. It only means that he was unwilling or unable to recognize it as such. You don’t have to repeat the same mistake

  171. Robby: Your nod to people finding Rav Moshe’s position confusing is not the same as acknowledging that some of his leading students and colleagues believe he was opposed to the brain stem death criteria. Again, I am not arguing with Rabbis Feinstein, Tendler and Rapoport. I find it hard to believe they are wrong. But others can testify to the contrary. I don’t see that on your website.

    Regarding the translation issue, I am not suggesting that R. Tendler mistranslated. That would, I understand, be highly implausible. I am only saying that he has a strong personality and a strong opinion on this subject. It is not at all unlikely that he translated loosely and added his own commentary. If, indeed, the question was as simple as “Is brain death considered death?” You can’t translate a direct answer to that loosely. But if the conversation dealt with complex topics of Talmud and medicine, I can easily see him expanding and clarifying. The question is simply what did the doctors actually hear?

    What do you mean about Rav Soloveitchik? His grandsons and some of his talmidim discussed the issue with him and report that he held it was a big safek and therefore BSD criteria cannot be relied upon.

  172. Dr. Stadlan: I am not qualified to determine whether you are correct that R. Asher Bush distorted medical facts in the paper. I asked someone who is and he disagrees with your evaluation. He says that the medical literature is full of debates on these subjects and one cannot pick one side and say that anyone who quotes the other side is misrepresenting and distorting.

    Again, I have no insight or opinion on this. I just thought it would be worthwhile to ask a doctor who is familiar with the subject and is not on the board of HODS.

  173. But Gil, that is precisely the point. The RCA paper essentially presented one side of the matter even though there is medical literature on both sides (Actually, that is just l’shitascha. The medical literature is about as one sided towards brain death as the RCA paper is against it.)

  174. “Dr. Stadlan: I am not qualified to determine whether you are correct that R. Asher Bush distorted medical facts in the paper. I asked someone who is and he disagrees with your evaluation. He says that the medical literature is full of debates on these subjects and one cannot pick one side and say that anyone who quotes the other side is misrepresenting and distorting.”

    But isn’t that the point. Even if there is a debate on certain medical issues, the supposedly “informational” paper picked one side of the medical debate and did not present both sides of the debate.

  175. I agree with Robert Berman. Being born in 1978, I obviously never met RMF, so I’m talking way out of line here, but I think we should assume that RMF ruled brain death=death, as per Tosafot to Yevamot 77a that we accept the testimony of a talmid chakham, so long as the talmid chakham does not possess a conflict of interest. I do not think that either RDF or RMDT possess a conflict of interest, so their testimony as to what they heard from RMF must be accepted as true and authoritative.

    RJDB accidentally misunderstood RMF. RJDB is a tzaddik gammur and he truly meant well, but in his enthusiasm to press his case, he accidentally misconstrued RMF. In fact, in the summer of 2004, I spoke to RJDB about his book Benetivot Hahalakhah III (which contains his Hebrew responsa on brain death). RJDB told me (these are his exact words) “I’m sure you found it chock-full of errors”. So it is not me – puny ignorant S. Spira – who is chas vishalom claiming that RJDB erred. RJDB admits it himself (in the noble tradition of Mosheh Rabbeinu who admitted he had momentarily erred, and when corrected by his brother was not embarrassed to so confess, as per the gemara in Zevachim 101b).

    At the same time, R. Student is correct that we are forbidden to apply RMF’s pesak halakhah in practice, because it is solidly counterbalanced by RSZA who realized that a brain dead patient is doubtfully dead, doubtfully alive. We have demonstrated, in fact, that the RMF vs. RSZA confrontation reflects a centuries’-old controversy regarding physiological cause-and-effect reflected in the Pesach cow lactation dispute. Thus, in effect, despite RJDB’s mistaken understanding, the Halakhah follows RJDB (as a matter of safek piku’ach nefesh) that the brain dead patient should be treated as a live patient.

    Accordingly, one may submit that everything the RCA has decided regarding brain death was correct, following the canons of decision-making of the Oral Torah. How so? When the RCA first voted in 1991 to accept brain death as death, the only information it possessed was RMF’s opinion. Therefore, like the townspeople of Rabbi Eliezer in Shabbat 130a who followed Rabbi Eliezer’s pesak halakhah to desecrate Shabbat for makhshirei milah, and who were greatly rewarded from Heaven for doing so, the RCA was absolutely correct to follow RMF and rule that brain death is death.

    Soon after the RCA vote, however, RSZA issued a series of responsa cogently overturning RMF’s pesak halakhah, and demonstrating that brain death is only doubtfully death. Therefore, like the townspeople of Rabbi Eliezer who – when they realized that Rabbi Akiva cogently disputed Rabbi Eliezer – had to stop desecrating Shabbat for makhshirei milah, so too the RCA became obligated to reverse its previous stance on brain death. Therefore, I congratulate R. Asher Bush for overturning the RCA’s previous position with his 110-page position paper. There may be details that might be improved in the paper (-most importantly, S. Spira’s name should be expunged from the paper, as S. Spira has no merit to be cited alongside genuine authorities like RMDT and RJDB), but basically the paper appears entirely correct that a brain dead patient is doubtfully alive.

    The only finding that could now reverse the RCA paper would be a face-to-face conference of all the Gedolim on the definition of death. Indeed, RSZA explicitly recognizes such a stipulation, as quoted in Shulchan Shelomoh, Erkei Refu’ah II, p. 32:

    “There is a position that HaGa’on Rabbi Moshe Feinstein zatzal retracted what he had ruled that in order to determine death we need the lack of all three signs [repiration, motion, circulation] ruled by the Chatam Sofer, but this is not found in his written responsa. And since there is no definition like this of brain-stem death in Sha”s, we cannot innovate a definition like this in our era, and only when the Sanhedrin will arise will it be in their power to establish whether brain-stem death is death or not, and until then it is forbidden to remove from him [i.e. from the brain-stem dead patient] his heart or any other organ so long as his heart beats within him. Even in a case where the entire brain, including the brain-stem does not function at all, which is called ‘brain death’, so long as the heart of the donor beats it is our opinion that there is no permission to remove even one of his organs, and there is in this [a suspicion*] of bloodshed. And until the Gedolei Hador will decide that this patient is called dead, one is obligated to continue to feed him [intravenously] and to treat him like any unconscious patient, and if one must do so by desecrating Shabbat, one must also do so. However it is understood that resuscitation should not be performed [-according to RSZA’s opinion, which is contested by RJDB**]”

    {S. Spira’s two footnotes on the above responsum of RSZA:

    * = Robert Berman correctly points out, in his debate with R. Tzvi Flaum on the HODS website, that RSZA’s responsum is missing a word, and that the word “suspicion” should be added here, since RSZA is saying that a brain dead patient is doubtfully dead and doubtfully alive.

    ** = RSZA’s assumption that resuscitation should not be performed in a brain dead patient is consistent with RSZA’s general approach to treating the gossess. However, that approach is analayzed and cogently contested by RJDB in Benetivot Hahalakhah III, pp. 161-178.}

    Regarding the story of Eli Hakohen, RSZA will say than when Eli Hakohen fell from the chair, all his brain cells – including the hypothalamus – died. The lomdut behind the dispute of whether to include the hypothalamus is explained in the “Brain Death in the News” forum, comment on Dec. 8, at 3:24 p.m., seventh paragraph.

  176. Robby Berman, regarding Rav Soloveitchik, I was at the OU conference this past Sunday. At the end of Rav Schachter’s shiur on the meaning of a Heter, one shul rabbi asked him to publicly comment on the current mess over this issue.

    While I cannot recall every nuance of what he said, suffice it to say that he did not believe the BSD camp had sufficient Halachic basis for stating with certainty that BSD can meet the Halachic criterie for death. (I’m sure you know that he holds that already though.)

    He then commented on Rav Soloveitchik’s position on the matter. He said that one of RYBS’s talmidim was with him in Boston when the Rav was aked about this. At this point in RYBS’s life, he was more comfortable speaking in Yiddish & responded that he cannot understand how someone can Pasken with such certainty that BSD constitues death acc. to Halacha – as there just is not enough relevant info on the topic in Shas and Poskim to absolutely determine a question like this with such huge ramifications of life and death.

    RYBS was then nervous that the talmid didn’t understand his Yiddish, so he repeated the same thoughts in English.

    Rav Schachter did not name the talmid who was there.

    This was said publicly at the OU conference.

  177. Observation: At the end of the day, the machloket on BSD as dependent on the “Gedolim” no longer with us, seems to be hostage to “I heard…”. And, with no disrespect to Rav Shachter it is now “I heard from someone who heard” as relayed by Alan S.

    This seems a path fraught with problems…

  178. Also, the approach relayed in the name of Rav Soloveichik is intrinsically problematic. Basically, the guys who made the laws didn’t know all this stuff, so we’re stuck with what they said, and because we can never know for sure what they would say about recent developments, we’d better do nothing. There isn’t the biggest of jumps from here to the Steipler’s opposition to Dor Yeshorim style testing because ‘lo nahagu ba avoteinu’. What happens in 200 years time when everything is super complicated and even more difficult to find explicit precedents for in Shas? Give up? Stay at home all day? Aren’t we supposed to try our hardest to apply the Torah to contemporary abilities and go with that?

  179. Rav Soloveitchik’s grandsons heard it directly from him. That important fact is in the RCA paper but not on the HODS website. R. Marc Angel also has it in writing from R. Ahron Soloveichik and R. Isadore Twersky (brother and son-in-law) in Rav Soloveitchik’s name. I don’t think that letter is on the HODS website although I could be mistaken. Since R. Marc Angel is on the organization’s rabbinic board, perhaps they posted the letter and I just can’t find it.

  180. R’ J., thank you for important insights and excellent questions.

    In response to the pivotal philosophical questions you raise, I will answer that Orthodox Judaism professess that the laws all originate from HKB”H in His Oral Torah. The Sages of the Talmud are the torch-bearers, the exponents and the champions of that Oral Torah. [As the Talmud Berakhot 5a states, 15 lines from top: the mishnah and gemara were all revealed to Mosheh Rabbeinu at Mount Sinai.]

    Now, the Sages of the Talmud knew about circulation of some sort, and hence the gemara in Kiddushin 24b regarding “yavshah gappah” (if the wing of the avian sacrifice has withered due to lack of circulation) – a key point to RHS’s lecture in 1988. [-But I hasten to add that since, in 1988, it was not yet realized that RSZA supported RHS, the RCA was still correct the vote the way it voted in 1991 (even though the RCA was contradicting RHS). I am sure RHS will not be offended to humbly acknowledge that, in the ’80s and ’90s, RSZA was his superior.] The Sages of the Talmud likewise knew that when circulation ceases, the body will eventually decompose, and hence the gemara in Niddah 69b about uncertainty in diagnosing death until the body decomposes.

    There are, however, sfekot in two forms: (a) whether circulation that is bereft from respiration within the past few minutes is legally regarded as a manifestation of the last breath taken, paralleling the Pesach cow lactation question, and (b) what happenned to Eli Hakohen. These are unresolved issues that Acharonim have debated for centuries. And thus the life of the brain dead patient is in a state of doubt. And when we are in doubt regarding someone’s life, we champion the possibility that he may be alive, and we desecrate Shabbat to save him, as per the mishnah in Yoma 83a.

  181. J & IH, I think this situation is unique for 2 reasons:

    1) The stakes are absolutely huge

    2) The discusion began when the now deceased titans were still living and involved in the conversation. As such, it’s very important to know what they honestly said – especialy when there are people using those names and personalities to promote their positions today.

  182. From my perspective, we have reached the points of diminishing returns in this debate. Those of us actively commenting have staked out our positions and we are now largely repeating ourselves.

    Rabbi Student, there is one issue where I still am not clear that I fully understand your position. I would appreciate a straightforward yes/no (with whatever caveats you feel necessary) answer to:

    Plainly speaking: do you believe it acceptable for an Orthodox Jew to believe that a theoretical restrictive psak on donating organs which simultaneously is permissive regarding receiving organs can be questioned on ex-halachic moral grounds?

    [To be clear: I am not interested in debating your straightforward response, once posted. Thanks.]

  183. IH: Yes, I believe a *posek* can question the views of another posek on meta-halakhic/moral grounds. Those of us who are not poskim need to be respectful.

  184. Alan S: I understand, but that doesn’t change the fact that it is a path fraught with problems. I am sure that all the 1st generation “I heard”s are the honest memories of the person involved; but, no one (no matter how great) is immune from the limitations of human memory. By the time of the 2nd generation “I heard from someone who heard” we are in the realm of what the British call Chinese Whispers.

    This is particularly an issue where there is a written record, but the honest memories of a talmid or child or friend are given as evidence that the written word should not be taken at face value.

    It seems evident that neither side of this debate will prove beyond a doubt what RMF, RSZA or RYBS really believed at the peak of their powers. In other words, this will not be decided strictly by halachic process, but by meta-halacha and (possibly ex-halachic) moral beliefs. For some this will be a form of “daas Torah” and for others it will be rationalist.

    The problem, as illustrated in the RCA brouhaha, is when one side tries to delegitimize the other side. I am hopeful that some lessons have been learned and an addendum is issued by the Va’ad Halacha.

  185. To amend the penultimate sentence as less editorial: “when one side is perceived to delegitimize the other side”.

  186. R. Gil, If there is a physician who thinks that what I posted is innacurate or wrong, I request that they state specifically what they think is in error. They can certainly contact me privately.

  187. R. Spira. They did NOT know about circulation. You are reading dr Harvey into the Gemara Please read the history of medicine. In fact there is a claim that the Chatam Sofer was actually the first to claim that absence of circulation, as interpreted as blood flowing in the arteries, was a criteria for death. Up until then the heart was thought to be an organ of respiration.

  188. R’ IH,

    Thank you for your important insights. But where is there any doubt in RSZA’s position? It seems to me that we have established that RSZA ruled that a brain dead patient is doubtfully dead, doubtfully alive, and that RSZA added that this conclusion can only be reversed by a consensus of Gedolei Hador.

    Well, R’ IH, you are in fact correct that RSZA’s position requires further elaboration. Thank you and yi’yasher kochakha for bringing it to our attention. Although not yet mentioned in our discussions under the auspices of our Rosh Yeshiva R. Student, there is in fact a contradiction in the accounts of RSZA, as follows. At 31:20-33:20 into his Hebrew-language HODS interview, HaRav HaGa’on R. Avraham Steinberg states that RSZA held that a functioning hypothalamus in an otherwise brain-dead patient is not a sign of life. This is seemingly contradicted by Shulchan Shelomoh, Erkei Refu’ah II, pp. 27, 29-31, 49-50, where RSZA rules that a functioning hypothalamus in an otherwise brain-dead patient is considered a potential sign of life. [R. Steinberg’s testimony is also seemingly contradicted by Contemporary Halakhic Problems IV, pp. 348-349, where RJDB reports that RSZA ruled that a functioning hypothalamus is considered a potential sign of life. R. Steinberg’s testimony is also seemingly contradicted by RMDT in “Responsa of Rav Moshe Feinstein: Care of the Critically Ill”, pp. 96-97, who reports that RSZA ruled that a functioning hypothalamus is considered a potential sign of life.

    On Friday, July 2, 2010, in Lake Placid, New York, I enjoyed the awesome privilege to meet HaRav HaGa’on R. Steinberg. I was also holding in my hand a copy of the Shulchan Shelomoh, and I respectfully presented it to R. Steinberg. After reading the text, R. Steinberg graciously and righteously acknowledged that Shulchan Shelomoh is accurate, and that RSZA held that a functioning hypothalamus is potentially a sign of life.

    Thus, I believe RSZA’s position has now been clarified.

  189. R. Spira, as I pointed out previously, there are plenty of patients where the hypothalamus is not working. If one feels that a nonfunctioning hypothalamus is necessary for a particular set of criteria, it can be tested for.

  190. Doron Beckerman

    Dr. Stadlan,

    I raised the issue earlier regarding early beliefs on circulation. Perhaps you can educate me on this. It is true that Harvey was Mechadesh the current conception of one closed circulatory system, but Galen writes about the heart providing arterial blood and the liver providing venous blood (the “vital” system and the “natural” system). What exactly did the ancients believe?

  191. I encourage people to read R. Ahron Soloveitchik’s explanation of why he opposes organ donation but permits receipt of it (answer to question 4):
    http://www.yutorah.org/lectures/lecture.cfm/735799/Rabbi_Aaron_Soloveichik/Death_According_to_the_Halacha

    Perhaps I find this striking because I knew R. Ahron and his fierce sense of morality. His support of this position means a lot to me.

  192. With the kind permission of our Rosh Yeshiva R. Student, RSZA refutes R. Aharon Soloveitchik, as described on the “News and Links” forum, comments on Jan. 17 at 9:30 p.m. and 10:15 p.m. According to RSZA, the gemara in Nedarm 22a does not establish a permission to register for an organ.

  193. Mr. Berman went on record declaring that the Chief Rabbi cares more about Jewish Blood than that of Gentiles. Will he apologise for this terrible blood libel and defamtaion of a leading Talmid Chacham? Until he does he has removed himself from legitimate and respectful discussion and should be ignored.

  194. R. Spira: in regard to RSZA there are 2 other issues that have been raised in these discussions (for the purpose of summation rather than further debate):

    First is the 2 August 1992 Jerusalem Post article that stated “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.”

    Second is the awkward inconsistency that (per R. Student) RSZA prohibited receiving organs in Israel (where Jews are 75% of the population), but (per the letter to R. Feivel Cohen) permitted receiving organs in the US (where Jews are 2% of the population).

  195. its interesting to note rav aharon lichtenstein’s position in the rca paper. it seem to have been glossed over by many including the paper itself. ral holds bsd is a safek – he is just not sure – but yet says there are people to be somaech on – referring to the rabanut -and therefore when consulted by parents 20 year ago in a case didn’t object to their donation of organs. in the paper you would think that all sefeks are lump together and have the same outcomes. the paper did not fleshout the details of practical implications lemaesah.

  196. does any one have a copy or know where i can find the 1991 teshuva authored by r. willig for the vaad of the rca on brain death? it is referred to many times in the rca paper but the rca has not provided the paper to peruse as far as i can tell (and to people who called them directly).

  197. R’ IH,

    Thank you for the summation. At the same time, I think you will agree with me that one more point may be added to the first issue of your summation. For while it is true that on August 2, 1992, the Jerusalem Post accurately reported that RSZA considered a brain dead patient to be be definitely dead once the patient’s heart has stopped for 30 seconds, this was before RSZA was apprised of the hypothalamic function that can persist in brain dead patients. Once apprised of this, RSZA reversed himself, and held that a brain dead patient is doubtfully alive even after 30 seconds of asystole.

    On the second issue, I fully agree with you. We really do not have ironclad masoret on the details of the Noahide Code to assume with certainty that – as RSZA assumed – the Noahide legislature/judiciary can modify the laws of homicide for Noahides. Indeed, it seems to me that RMF questioned RSZA on this point (“Brain Death in the News”, comment on Dec. 7 at 5:30 p.m.), and therefore that it is forbidden for any Jew, even in the Diaspora, to register for organs.

    R’ Ruvie: Thank you for pointing out the enigma regarding RAL. You are correct. Now, once again I am in a pickle, because as someone who is (undeservingly) privileged to be (the feablest possible) alumnus of Yeshivat Har Etzion and who is very indebted to HaRav HaGa’on RAL, I’m sorry to have to be the one articulates the following audacious statement, but since there are lives on the line (in both directions) the truth must be told: RAL has been issuing contradictory messages on the issue of brain death. RAL delivered one message to HODS, and he delivered a different message to R. Asher Bush. Therefore, since RAL is a Gavra Rabbah (ashreinu shezakhinu likakh) and his authoritative opinion is highly valued in terms of halakhah lima’aseh, he too needs to be immediately sequetered with the Gedolim to arrive at a clear and unambiguous pesak halakhah of how to address the status of brain dead patients. If there is even the slightest safek that a brain dead patient may be alive (-which I indeed think exists as a genuine safek), then there is no possibility of being “somekh” on any sfek sfeka to donate organs. It is forbidden, for as RSZA said, “it is absolutely forbidden (issur gimmur) to be a doubtful murderer”.

  198. r’ spira – i do not think rav aharon is issuing contradictory messages. he holds the that the safek to him can be lekulah and if one wants to donate on the basis of bsd they can be somach on the rabanut’s position – not his. its nuanced as ral is always a person of nuance but not contradictions – i have confirm this by one of his talmidim – who is contact with him on a regular basis -on this issue today. i think the author(s) of the paper either did not realize or know (flesh it out)the outcome of his position or felt it was not significant.

  199. R’ AG,

    I admire your enthusiasm to uphold the honour of the venerable Chief Rabbi of the United Kingdom, and I agree with you that a brain dead patient should be regarded as potentially alive. At the same time, I recognize the significant contribution that Robert Berman has rendered to the sugya. Without his heroic efforts to co-ordinate all the interviews and articles on the HODS website, it would be very difficult to arrive at a conclusion regarding brain death. [See Rashi to Chagigah 3b, s.v. “aseh oznekha ka’afarkeset”, from which it emerges that one must study all the opinions.] Thus, I would sugar-coat and elucidate Robert Berman’s language as following the norm of “milchamtah shel Torah”, where one speaks energetically, and at the same time we know that all the protagonists are all righteous and the best of friends (as per the gemara in Kiddushin 30b).

  200. It was quoted in a newspaper. It was the language of blood-libel and can cause massive chillul hashem. It was beyond the pale. Jewish life in Europe is dangerous enough without Mr Berman using this language. Has it been said by a goy it would have been seen as incitement. I have no opinion on the halacha, nor do I feel that Mr. Berman has a full grasp of UK politics. That being said there are levels which one may not drop too and demand an urgent retraction

  201. Your own comment of course, is certainly genuine and well intentioned and I thank you for your point which would otherwise be well taken

  202. Gil,

    R. Ahron Soloveitchik’s point was that the recipient is not a causative factor. Based on the article it does not appear that he was aware of how transplants are done today (and perhaps this has changed somewhat from when the article was written. In many cases your personal transplant surgeon travels to the hospital where the donor is on life support while you are being prepped for surgery. He harvests the organ on your behalf and then returns with it to complete the transplantation. While there he usually has the option of declining the organ if he thinks, once the organ is examined in vivo that it is not a good match for you as far as size or in bad shape.

    So, the disconnect between the surgeons who are murderers and the patient is simply not true. Even if declining the transplant will not actually prevent the death of the donor (which in any event is irrelevant per the parameters of “is your blood redder”), by agreeing, you are enjoining your own surgeon to act on your behalf to obtain the organ. This surely goes beyond “mechazek yedeihem” and comes much closer to gorem.

    R. Ahron’s analysis appears to be based on a mistaken view of how transplants are done. Perhaps he thought that you had one team of “murderer” surgeon’s and nurses harvesting and another team doing the transplant, but that not the case in general, especially for the organs which are the most complicated to transplant like the heart.

  203. MJ: That sounds like a detail that might change R. Ahron’s ruling. I was interested in this paragon of moral rectitude issuing what many seem to think is an immoral ruling.

  204. Glatt some questions

    MJ has it right, R. Gil. I can only surmise that if Rav Ahron had a full understanding of how the transplantation system works today, he would not have made the statements that he made.

    I believe that there are even legal contracts that are signed by the two parties, which make the connection between donor and donee even stronger–and at least in my opinion, certainly makes this a case of goreim.

  205. AG: While I might have advised Robby Berman to perhaps rephrase his objection to the decision of Chief Rabbi Sacks, he said nothing that hasn’t been said here many times by many many different commenters. If all of them are to be written out of the discussion, the discussion on this issue, which has been ongoing on at least 6 or 7 different posts, whould have been over long ago. While some might like that, I for one think the discussion has been exceedingly informative on, as has been said by people on both sides, a critical life and death issue. So let’s not write anyone out of the discussion who has something to offer, and agree with Robby or not (and I essentially agree), he, as his detailed comments here have demonstrated, and the HODS website, certainly have a great deal to contribute.

  206. I was interested in this paragon of moral rectitude issuing what many seem to think is an immoral ruling.

    As far as policy goes, in that article R. Ahron was adamant that we should all oppose the adoption of brain death criteria for the entire country, period – not simply that Jews should not be donors. So the policy that he advocated was that ultimately no one, Jew or Gentile, whether in Israel or elsewhere, would receive organs from brain dead donors. This is a far cry from RSZA’s psak.

    Also, R. Ahron addressed the issue of being a recipient only as it relates to his advocating against brain death across the board. His point was to show that this is an irrelevant issue: first because it is muttar, second, because even if it was assur, so what, yes people will die for lack of transplants, but we do not pasken as utilitarians.

    So taking into overall rhetorical context it doesn’t seem so shocking. He was, after all, strongly advocating for the entire practice to end.

  207. A 52-year-old woman regains the power to speak after having the 2nd voice box transplant in U.S. history.

    =========================
    From today’s news-a while back I wondered what the psak would be if the vocal mechanism were transplanted from a woman to a man-would it be kol isha? Technology moves on!
    KT

  208. BTW, a quick google search brings the following link from Rav Ovadia’s official website (which brings his teshuvos, and those of his sons on specific question) on the topic of brain death.
    http://www.halachayomit.co.il/QuestionDetails.aspx?ID=341
    I can’t for the life of me work out why a review of the view of poskim on this matter, which makes the claim of an ‘unfetterred search for truth’ would simply skip over the shita of one of today’s leading poskim.

  209. Apparently there is even a sefer ‘Ruach Yaakov’, by R. Yaakov Sasson (R. Ovadia’s grandson) with R. Ovadia’s haskama that explains his grandfather’s shitta on the topic (apparently he is not necessarily always in favour of organ donation, although he DOES agree with brain death. It is simply amazing that the RCA paper didn’t bother even noting this.

  210. Glatt some questions

    (apparently he is not necessarily always in favour of organ donation, although he DOES agree with brain death.
    ———————–
    That’s interesting. Assuming there’s a greater demand than supply for organs, and assuming that the person is halachically dead, why would Rav Ovadiah Yosef oppose organ donation in any situation if there is a pikuach nefesh issue?

    Another issue that has not been discussed here is the issue of organ transplants after irreversible cessation of heartbeat, when a person is dead l’chal deios. There is a small half hour window of opportunity where kidneys can be harvested even after a heart has stopped beating. Does anyone know if Rav Schachter and Rav Willig oppose organ donation in this case, and if so, why?

  211. R’ J.,

    Thank you and yi’yasher kochakha for the “Halacha Yomit” link. An examination of the “Halacha Yomit” responsum reveals it to be problematic. The responsum says to consult Dr. Avraham Sofer. But, behold, Dr. Avraham Sofer holds that a brain dead patient is alive. Another problem is that the responsum says that the issue of organ donation is complex because of “nivul hamet” and “issur hana’ah min hamet”. We know that those are not the real issues. The real issue is whether the donor is alive or dead.

    Nevertheless, you are correct that R. Ovadiah Yosef granted his approbation to R. Shlomo Moshe Amar’s responsum, published at http://www.hods.org/pdf/ShlomoAmar.pdf . [I have already refuted R. Amar in our shakla vitarya on this website.]

    Even further mysterious about R. Ovadiah Yosef’s position is that R. Ovadiah Yosef grants a haskamah to the multi-volume series Yalkut Yosef by his son R. Yitzchak Yosef. In Hilkhot Shabbat IV, p. 276, there is a section entitled “Zeman kevi’at hamavet lifee hahalakhah”. In it, the Yalkut Yosef observes that although, at surface glance, the gemara in Yoma 85a and its codifications in the Rambam and Shulchan Arukh only overtly speak of cessation of respiration as the criterion of death, the Chatam Sofer has taught us that two other criteria are necessary for the pronouncement of death: cessation of motion and cessation of circulation. Continues the Yalkut Yosef: based on the Chatam Sofer, we rule that halakhah lima’aseh a breathless heartbeat is a sign of life.

    Thus, it would seem that the position of Moreinu ViRabbeinu Mofet Hador HaRav HaGa’on R. Ovadiah Yosef requires urgent clarification. And this only serves to further underscore the emergency imperative of a face-to-face conference of the Gedolim over the medicolegal definition of life. It really is the moral duty of Richard Joel, R. Moshe Kletenik and the Israeli supreme court chief justice to grant the Gedolim (who work as their employees) a temporary vacation, to offer them the opportunity to confer on this matter of piku’ach nefesh.

    R’ AG,

    Thank you for your kind words. I apologize and ask your forgiveness that I did not realize the difficult political situation for European Jewry (since I myself reside in North America). Bi’ezrat Hashem, in the merit of “talmidei chakhamim marbim shalom ba’olam” (as per Berakhot 64a), you will bring peace to European Jewry.

  212. AG
    It was quoted in a newspaper. It was the language of blood-libel and can cause massive chillul hashem. It was beyond the pale. Jewish life in Europe is dangerous enough without Mr Berman using this language. Has it been said by a goy it would have been seen as incitement. I have no opinion on the halacha, nor do I feel that Mr. Berman has a full grasp of UK politics. That being said there are levels which one may not drop too and demand an urgent retraction

    Not to argue the merits of the position again. However, the issue is here about relationship with the outside world.

    One thing to remember is that Rav Sacks initial comments were also made in the newspaper – and while we have argued endlessly about the appropriateness of the characterization of this by Robby Berman and others, one thing that is clear to me is that to many people out there with interests in transplant – Jews, non Jews, etc, who have no anti semitic (or anti haredi) intrinsic animus, Robby Berman’s characterization of this position is simple pshat – and widely held. One can try to argue against it – as many have done here and elsewhere – but while one may try for a halachic justification, or argue based on the moral stature of those who support it (which seems to be Gil’s position), that does not work for the broader community (and it doesn’t work too well even in the dati community…)
    Whether that failure is because of the weakness of the argument or the obtuseness of the other side we can debate, but the failure is an empiric fact. (BTW, just for a sense of how the haredi community is viewed in the broader medical world based on their willingness to give, here is an old (1996) post from a haredi poster on mail jewish – where none of the issues of brain death arise.
    http://www.ottmall.com/mj_ht_arch/v25/mj_v25i62.html#CSH

    the situation has not improved)

    Given that that Robby Berman’s response is actually the feelings of a broad consensus within the broader community – which does not need him in order to reach this conclusion – the question is whether it is better for members of the Jewish community to point out that there are those of us who agree with the broader consensus.. – and I think that pointing out to the community that not all of us agree with the morality of receiving and not giving is a good thing…..

  213. “I have already refuted R. Amar in our shakla vitarya on this website.”

    Refute: “To prove to be false or erroneous; overthrow by argument or proof.”

    RSS,let other people pat you on the back. When it’s you writing, better make that “attempted to refute.”

  214. R’ Joseph Kaplan,
    Touché. Thank you for rescuing me from error. Yi’yasher kochakha. I concede to you.

  215. MJ: Wow, I think we are starting to find common ground. I suspect that Rav Schachter would agree with what you describe as R. Ahron Soloveichik’s position.

    R’JR: From today’s news-a while back I wondered what the psak would be if the vocal mechanism were transplanted from a woman to a man-would it be kol isha? Technology moves on!

    Similar she’eilah: http://hirhurim.blogspot.com/2007/06/kol-not-ishah.html

  216. A lot of people on this blog say that pro brain death advocates mislead people. But why does no one point to this youtube video that shows Rabbi Flaum pretending to quote from a book – a book that says just the opposite of what he is saying – in an effort to “prove” that Rav Soloveitchik did not accept brain death.

  217. R’ Joseph,

    Thank you for the important question. R. Tzvi Flaum did not commit perjury. He was quoting a real book. The book that he was quoting is “Time of Death in Jewish Law” by RJDB. In that book, RJDB cites R. Binyamin Walfish in the name of RYBS that brain death is not death. Here, too (-see my comment earlier today in this forum, at 11:38 a.m.), RJDB was supplied with mistaken information. RYBS actually told R. Binyamin Walfish (as R. Binyamin Walfish testifies on the HODS website) that RYBS agrees with RMDT, because RMDT is an expert in medical halakhah.

    So once again, RJDB meant well, but in his enthusiasm to save the lives of brain dead patients, RJBS mistakenly attributed his view to R. Binyamin Walfish in the name of RYBS. So RJDB needs to ask mechilah from R. Binyamin Walfish this coming Erev Yom Kippur.

    But even so, I do not think this shifts the ultimate halakhic equation. After the RCA voted to equate brain death with death, RSZA issued a series of responsa which established that breathless circulation is itself a potential sign of life (as Chatam Sofer ruled), and in so establishing, RSZA overturned the pesak halakhah of RMF/RYBS. Moreover, although Dr. Noam Stadlan correctly observes that if we can prove that all brain cells – including the hypothalamus – have died that RSZA will agree the patient is dead, we have shown that this is because RSZA was following only one side in a controversy among the Acharonim as to what happenned to Eli Hakohen. [“Death by Neurological Criteria” forum, comment on Dec. 27, 9:32 p.m.] According to the other side of the controversy, Eli Hakohen experienced irreversible circulatory arrest, and so – according to this other side – even death of the hypothalamus would not suffice. RSZA never acknowledged this countervailing possibility, and thus we are seemingly left with a safek.

    Parenthetically, in his HODS interview, R. Binyamin Walfish also quotes RYBS to the effect that a blind person is exempt from mitzvot. This is not so simple. See Shulchan Shelomoh, Erkei Refu’ah II, pp. 96-97, that this is really a dispute among the poskim. [In all fairness to RYBS and R. Binyamin Walfish, though, the conversation between them obviously occurred long before Shulchan Shelomoh was published, so what R. Binyamin Walfish says in RYBS’s name was evidently RYBS’s position.]

  218. I would just note that Rabbi Sacks’ message on his website is most carefully worded. He does not say what his position actually is, only the position of his beit din. There are many possible reasons for this, but one might suspect that Rabbi Sacks perhaps does not hold the same position as his beit din, but for a variety of reasons is not publicizing his personal position.

    Rav Spira, I suggest reading the dissertation referenced previously http://141.213.232.243/bitstream/2027.42/77671/1/eytansht.pdf which claims that the Chatam Sofer actually innovated the criterion of circulation, as previous to that the modern concept of circulation was unknown(references to heart function were actually to the contribution of the heart to respiratory function, and how the respiration cooled the heart’s innate heat).

  219. R Shalom Spira
    So once again, RJDB meant well, but in his enthusiasm to save the lives of brain dead patients, RJBS mistakenly attributed his view to R. Binyamin Walfish in the name of RYBS. So RJDB needs to ask mechilah from R. Binyamin Walfish this coming Erev Yom Kippur.

    Question: Do you think that the enthusiasm to save the lives of brain dead patients has affected the testimony/reasoning of other sources? Is that something to be considered?

    I would add that I (and I suspect others), don’t agree with your methodology that leads you to conclude (just to cite one conclusion)
    After the RCA voted to equate brain death with death, RSZA issued a series of responsa which established that breathless circulation is itself a potential sign of life (as Chatam Sofer ruled), and in so establishing, RSZA overturned the pesak halakhah of RMF/RYBS.

    While kvodo of RSZA bimkomo munach, the fact that he issued responsa does not automatically means that he established then and overturned the pesak halacha of RMF/RYBS- he may have disagreed with them – but what is the basis (outside of being yotze lekhol hashitot and that he is machmir here) that he necessarily overturned their psak?

  220. “Trust me, there are no loose kidneys or hearts or lungs lying around”

    I don’t understand why the discussion here continues to ignore that fact.

  221. Glatt some questions

    “Trust me, there are no loose kidneys or hearts or lungs lying around”

    I don’t understand why the discussion here continues to ignore that fact.
    ———————————-

    I don’t either.

    In fairness, there are some anti BSD folks who agree that there is no bank of organs waiting to be tapped, but still feel it’s halachically acceptable to receive an organ from a brain dead person because “he will be killed anyway”.

    While that kind of thinking is repulsive to me, I guess there are some who don’t have qualms about using this kind of halachic logic.

  222. GSQ: It isn’t so repulsive if you think of the killing as “Halakhic killing,” or killing under technical legal definitions, and not “moral killing,” which is what I was saying earlier. Or put it a different way – there’s no bein-adam-l’havero component to the killing.

  223. Glatt some questions

    GSQ: It isn’t so repulsive if you think of the killing as “Halakhic killing,” or killing under technical legal definitions, and not “moral killing,” which is what I was saying earlier. Or put it a different way – there’s no bein-adam-l’havero component to the killing.
    ————————
    I don’t understand your statement about “no bein adam l’chaveiro component to the killing.” If you are legally authorizing a surgeon to harvest an organ from a brain dead person on your behalf, why isn’t that bein adam l’chaveiro? It’s just as much bein adam l’chaveiro as any other situation where you are asking a shaliach to act on your behalf.

    Perhaps you can explain what you mean, Jon

  224. Leon Zacharowicz MD

    I’ve been engaged in seemingly deadly combat over the “brain death” controversy for many years with Robby Berman and more recently with HODS board member Noam Stadlan, MD (see our exchanges at cross-currents.com, but note my fear of his scalpel).

    Here are a few concerns from a long-time observer and occasional minor player in this drama:

    Those who brought this controversy to the attention of the secular media got what they desired–they effectively neutralized the RCA halachic paper. In addition, they have taken to the streets with their advocacy (in at least one infamous case, with the HODS bullhorn-led public chant at the Israel Day Parade, “Jews get organs, Jews should give organs!”).

    A serious halachic debate has morphed into an attack on the dozens of international halachic authorities–ranging from Rav Herschel Schachter to Rav Elyashiv–who do not accept “whole brain death,” let alone “brainstem death” (which does require “death” of the whole brain to be demonstrated). These distinguished rabbinic leaders, and by implication their hundreds of thousands of followers, hold a “morally untenable” position.

    There you have it: we are parasites.

  225. Dr. Zacharowitz,
    You are again twisting things. No one claims that the position you cite, rejection of brain death in any of its forms, is morally untenable or results in its adherents being parasites. You know this very well, and are just as guilty of causing the debate to deteriorate as anyone on the other side by continuing to post intentionally misleading posts. (This is the second time on this thread I have had to call you out.)

  226. Dr. Shinnar,

    Thank you for your excellent rejoinder. You have me in a state of checkmate. I confess that although I’m a student of RJDB, I must acknowledge the existence of multiple errors in his book “Time of Death in Jewish Law”. Besides the obligation that devolves upon RJDB to seek forgiveness from RDF, RMDT and RBW, it is quite possible that his book should also be withdrawn from the public record, pursuant to the gemara in Ketubot 19b that a mistaken book may not be maintained in one’s possession. But even though RJDB employed the wrong methodology in defining death, it doesn’t necessarily mean he achieved the wrong result. This the key question: the RMF/RYBS vs. RSZA confrontation in how to understand the Chatam Sofer. Okay, you will posit (correctly so) that it is two pre-WW2 Gedolim (RMF and RYBS) against one (RSZA) on how to interpret the Chatam Sofer. But, on the other hand, “lo halkhu bifiku’ach nefesh achar harov”, as per the gemara in Yoma 84b. Moreover, the cow lactation analogy seems to support RSZA’s application of the Chatam Sofer.

    Dr. Stadlan,

    Thank you for important feedback. You identify a key question: are we in a position, at this point in Jewish history, to reject the Chatam Sofer? There are talmudic references to circulation (Kiddushin 24b, Niddah 69b), which may or may not match the circulation we know today. There are three references in the Rishonim to cardiac function, which may or may not match the heartbeat we know today. [“Brain Death in the News” forum, comment on Jan. 5, at 2:27 p.m.]

    Dr. Zacharowitz,

    Yi’yasher kochakha, and thank you for your kind support. I agree with you all the way, and R. Eliashiv’s position is certainly of primary consideration. But *why* does R. Eliashiv hold a brain dead patient is alive? How does R. Eliashiv respond to the important countervailing proofs presented by Dr. Shinnar and Dr. Stadlan? This is what really needs an urgent face-to-face conference of the Gedolim. There are lives on the line in both directions, and I believe that – by theological definition – there can only be one doctrine of life that is applied in a functional Orthodox Jewish community.

    R’ SB,

    Thank you for your kind words and “Chinaman” reference in your comment on Jan. 18 at 3:23 p.m. You have inspired me further. Just as R. Herzog convened a conference of Gedolim in 1941 to determine whether the world begins at China, we need such a conference of Gedolim today, and all the more so.

  227. Thank you R. Spira, I will track down the sources.

    Dr. Z. – I for one do not think that it is unreasonable to ask a posek to address problems in logic and fact that cast doubt on the psak. As usual, you confuse issues. It is not the position on braindeath that is a possible source of moral discomfort, only the receive but don’t give position. Since you referenced the discussion at cross currents, I will point out that either you are smart enough to know the difference, and therefore this conflation was deliberate, or uninfomed and therefore it was a mistake. However if you are that uninformed, perhaps it would be better to educate yourself on this entire topic before commenting further.

  228. WRT R Shalom Spira
    This the key question: the RMF/RYBS vs. RSZA confrontation in how to understand the Chatam Sofer.

    WADR, for the American MO and centrist community, the fact that both RMF and RYBS pasken the same way means that in general, they would follow RMF and RYBS – and RSZA’s psak would not be relevant in that community – nor the position of Rav Herschel Schachter or Rav Bleich. That is why the debate has been so acrimonious about exactly what RYBS and and RMF held – but once it is conceded that both held by brain death (as you do), it would be highly unusual for the RCA to go against both RMF and RYBS…

    Meir Shinnar

  229. R. Spira, I apologize but am unable to find that comment. If it is not too much trouble, when you get a chance, please send me the sources. noamstadlan-at-gmail-dot-com. thank you, Shabbat Shalom

  230. >These distinguished rabbinic leaders, and by implication their hundreds of thousands of followers, hold a “morally untenable” position

    Stop making things up. I already challenged you on cross-currents to actually answer the substantial criticism of the RCA paper but you continue to attack people and attribute evil motives to people.

    The morally untenable situation is the one which says that one can not donate organs becasue that would be murder but another person can be murdered so that you can get an organ. This is pashut, and the only limud zechut on those who hold such a postion is that they are unaware that the donor is specifically “murdered” for the sake of the receipient (ie, there is no ‘bank’ of organs from which to recieve a heart)

  231. Glatt some questions

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

    Please watch this video. Even Rabbi Flaum, who is against brain stem death as halachic death and who was on the Halacha Committe that issued the 110-page RCA study on brain death, clearly admits that “we have a problem” when it comes to the taking of organs but not donating them issue.

    I do think that if Rav Schachter and Rav Willig clearly understand how the transplant process works, they will be forced to come to the same conclusion as Rabbi Flaum.

    Yes indeed, we have a problem, folks.

    Will the anti-BSD folks eventually rule that you cannot become an organ donor receipient for hearts and lungs because of this issue? Will they differentiate between Jew and non-Jew when it comes to taking organs (something that the RCA has NOT done, as Gil has made clear many times)? Will this information about the transplant process (that Rav Ahron Soloveitchik clearly was not aware of) eventually convince more of the anti-BSD folks to move to the position of accepting BSD as halachic death, thus making the taking but not giving issue a moot point?

    Stay tuned…

  232. Glatt: Or Rabbi Flaum misunderstands it.

    Glatt, maybe you can sit down with Rabbis Willig and Schachter to update them. Do you think the public statements from HODS, R. Dov Linser et al increase the probability that Rabbis Willig and Schachter will sit down and discuss this?

  233. Gil,
    What do public statements have to do with anything. Rabbis Willig and Schachter are not immature children but respected poskim. they have an obligation to understand the metzius regardless of externalities. Any implication that they would allow external politics to interfere with becoming familiar with the relevant facts is either a slander against them or an indictment of their ability to be poskim.

  234. Glatt some questions

    Although I feel I have a very good understanding of the issues surrounding brain stem death and organ donation, I am not an MD…and I don’t feel I’m qualified to tell Rabbi Schachter and Rabbi Willig about how transplants work. I do hope they are talking to the right doctors to fully understand the medical metzius. I agree with MDJ above in that these talmedei chachamim have an obligation to understand the facts before issuing a psak, regardless of what others are saying.

  235. But everything people have said here, especially MDJ, has confirmed what R. Schachter told me. Why would he revisit the issue because some people with an agenda are making noise? Is he a puppet who should be easily manipulated? If anything, after this he should realize he can’t learn anything of value from HODS because of their agenda and has to find experts with no connection to the organization. I always wondered why he didn’t get a HODS card and just mark off the cardiac box. I guess he smelled an agenda when I didn’t. Once again, I have to tip my hat to him.

    By the way, a friend of mine called UNOS yesterday and after a conversation concluded that R. Bleich’s explanation to him of the transplant process was more accurate than R. Tendler’s on a crucial point. I’m not sure of the details, though.

  236. “By the way, a friend of mine called UNOS yesterday […] I’m not sure of the details, though.”

    Suggestion: An authoritative proponent for each side in this debate, who can still discuss this dispassionately with one another, should collaborate to frame an interrogatory with UNOS that results in facts. Rational people can then debate the interpretation of the facts; rather than what the facts are, per se.

  237. to be clearer: (written) facts for (halachic) interpretation.

  238. Chardal: The morally untenable situation is the one which says that one can not donate organs becasue that would be murder but another person can be murdered so that you can get an organ.

    If I understand correctly, the point is not that the donor is harvested for a specific recipient but that he will be harvested anyway. Most of the time, there are many potential recipients and any given recipient’s refusal to accept an organ will not change what will happen to the donor.

  239. Leon Zacharowicz MD

    First, an appetizer:

    I appreciate the comments above, and apologize for not clarifying what I thought was obvious, ie that those many poskim and by inference their adherents who do not agree that “brainstem death” constitutes death in halacha, yet do not require those in need of vital organs to take themselves off the recipient lists, are chas c’sholom holding a “morally untenable position.”

    Those who publicly attack these major authorities are at a distinct advantage. They ignore the admonition of the Rav ztl that certain sensitive subjects should NOT be discussed in any way which could possibly lead to leaks to the non-frum world, and use these sensitive issues as a public battering ram.

    Some have gone to the length of supporting the article in The Lancet which sought to limit receiving an organ to only those who have signed on to give an organ. That means, of course, that a common thief or worse will get an organ, whereas the head of a major soup kitchen, charity organization, or similar organization will not–and apparently, neither will his / her children–because of adherence to their religious beliefs—beliefs shared by many people of other faiths.

    By this logic, by the way, we should deny blood transfusions to J-Witnesses.

    Since someone said that the RCA paper represents anti-Semitism, let’s ask whether making such a public charge,ie that refusing to give an organ but agreeing to accept an organ is “morally untenable,” is or is not an act of anti-haredism (to coin a new phrase).

    This public approach can and will result in haredi Jews and centrist Jews bound by the rulings of major YU rabbis being discriminated against, on the basis of religious belief.

    Now, to the substance:

    Those who are educated (to use Dr. Stadlan’s term) know of the Chinese organ donation case, wherein Rav Elyashiv’s ruling made international headlines. Basically, Rav Elyashiv ruled that Jews are forbidden to travel to China to get organs, which were supposedly being received from criminals awaiting execution. The prospective recipient would arrive at the hospital, and by “coincidence” the prisoner would be executed, with an ambulance standing by, mere yards from the execution, and the organs would be ripped out of the “donor” and transported to the recipient.

    Rav Elyashiv was fearful that, even if the scenario was as advertised and these were true criminals condemned to die, this practice could result in the shortening of a prisoner’s life by a few seconds. He therefore absolutely forbade Jews who follow his guidance from going to China for organs. (This meant, of course, that some of these potential recipients would die.)

    For anyone who knows of this case to claim privately that Rav Elyashiv and the other poskim who permit the receipt of organs under certain very limited circumstances–after the organs have been removed from a patient who is considered dead– hold a “morally untenable” position is to put it mildly guilty of ignorance at the very least.

    For anyone and any group to make an online statement accusing our leading chachamim who hold this viewpoint of holding a “morally untenable” position is, to put it mildly, beyond the pale.

    To shout, with a bullhorn, at the Israel Day Parade, “Jews get organs, Jews should give organs!” is, one could say, part of the educational program of HODS–but others might say this is causing stereotyping and enmity of the thousands of police officers and bystanders against Orthodox Jews.

    The results of this “nuclear” option is that organ transplant teams have been taught, by some in our community, that haredi and centrist Jews are morally less deserving of organs. We wish to take but they won’t give.

    We’re parasites. Rav Elyashiv is a parasite. The major rabbonim who agree with him are parasites. Hundreds of thousands of people, and perhaps their children, are parasites. They might do all sorts of good deeds, but they’re parasites, because they won’t sign Berman’s card and go against a ruling on a matter of life and death.

    Even though we do everything (except the 3 cardinal sins) to save the life of someone who might be alive, we should do nothing to keep alive someone who at the very least might be alive, according to the large majority of poskim–when their view contradicts that of others, and when their organs can be removed to help the quality of life (or sometimes save the life) of a citizen of this country.

    We should possibly engage in murder, al pi halacha, to save someone else or improve his life. We should do that, despite the fact that Rav Moshe Feinstein ztl did not write teshuvos calling for organ transplantation, and the 1986 ruling of the Chief Rabbis–predicated on information provided by 1 or 2 physicians, information which has seen been shown to be incorrect, was greatly limited –and their protocol has been all but ignored since then.

    None of us would eat food where the caterer ignores the conditions of the rav ha’machshir, but when it comes to brain death, we should all ignore the conditions set by the Chief Rabbis a quarter century ago, and extend their very limited ruling–which explicitly was for Israel–because HODS says so.

    Now, for dessert:

    Dr. Stadlan suggests I educate myself. This is the same Dr. Stadlan who, in another online exchange with me, termed the new approach, of stopping the heart of a patient who is alive l’kol ha’deiyos (brain is not dead, heart is beating), waiting a matter of seconds to minutes, and then removing the heart, “interesting.” I mentioned that I would use a word all rabbis would deem more appropriate: halachic murder.

    Nevertheless, Dr. Stadlan, I’ll provide you a synopsis of my “education” and you can point out my deficiencies”:

    I spent a research elective in Israel with Dr. A. Steinberg in 1989. In 1991, I left my son’s bris, to attend a talk by Rabbi Tendler and Fred Plum on “brain death.” I attended virtually every AOJS debate on this topic, until they stopped due to the name-calling that made those in the anti-BD camp refuse to appear anymore.

    Starting in 1998, for most summers I have spent at least one week learning in Jerusalem major sugyas in medical halacha with chavrusas from a kollel dedicated to medical halacha (www.j-c-r.org), with magidei shiur such as: Rav Simcha Bunim Lazerson (author of MISHNAS CHAYAY SHA’AH, on organ transplantation), Rav Zalman Nechemiah Goldberg, Rav Yehoshua Neuwirth, Rav Yitzchak Zilberstein, Rav Darzi, Rav Dovid Morgenstern (who continues to have complete access to Rav Elyashiv), y’m’ch’lch Rav Mordechai Eliyahu ztl (for whom I had the privilege, two summers in a row, of acting as his translator on the subject of “brain death”),Rav Shmuel Jacobovitz of Jerusalem, and many more. When we studied the sugya of “brain death,” also heard lectures from Rabbi Dr. Avraham Steinberg, Professor Meyer Gottesman (Chief of Cardiology, Hadassah Medical Center)
    on related issues, and Professor Moshe Dickman, (Professor of Neurology, Hadassah Medical Center).
    In addition, I’ve attended yarchei kallah programs in the U.S. which included shiurim from Rav Herschal Shachter, Rav Mordechai Willig, Rav Asher Bush, Rav Tzvi Flaum, Rav Belsky, Rav Breitowitz, and many other prominent rabbanim and poskim.

    All this is in addition to my professional training, my board certification in child and adult neurology, my service as director of an EEG laboratory, my having co-authored papers and a recent chapter in a textbook on pediatric neurophysiology, and my more recent service teaching anatomy and physiology.

    Therefore, I think I have some degree of education in this area, although I always welcome learning more, especially from Dr. Stadlan.

    I made a quip elsewhere that I would offer to duel with Dr. Stadlan except his surgical scalpel would likely prevail over my reflex hammer, and noted as well as we should all strive to lessen the personal rancor and use Dr. Stadlan’s first name as a guideline: deracheyha darchei Noam.

    But I cannot stand by and see our leading rabbis denigrated online and in the secular media as essentially immoral people, as moral parasites.

    I apologize for confusing some of you with the facts, and I’m sure there will be those who will be able to find all sorts of flaws with my points, show how I am deliberately twisting things, trying to confuse matters, and the like.

    To those, I respectfully invite to participate in one of the many yarchei kallahs worldwide on this topic (www.j-c-r.org). There is a one-day yom iyun on end of life issues on Feb. 20, 2011, at Congregation Beth Torah in Flatbush.

    I also look forward to each and every one of you supporting ‘Renewal” and its live-organ donation campaign (www.life-renewal.org). Here’s a campaign we can all agree on (except for Seth Cohen, MD, who wrote a letter to the editor of the Forward criticizing the haredi Jews who started this for being hypocrites, a letter which prompted my response on http://www.5tjt.com,which prompted Robby Berman’s letter attacking me, and my rejoinder…In that regard, let me know when Berman takes off the picture of Rabbi Moshe Sternbuch he has under the list of those who favor brain death–at least this Rav Moshe is alive, and it’s easy to verify his view, which is vehemently against brain death, as was the view of Rav Waldenberg ztl, the rav of Dr. Steinberg).
    Finally, I have spent countless hours dealing with the more pressing issues of end of life cases, wherein hospitals have taken another “interesting” approach: they seek to stop life support on patients who are not imminently dying, merely seriously brain damaged or with multiple medical problems.

    For example: Read about the Golubchuk case: doctors wanted to stop the ventilator, against the vehement objection of the adult chidren (guardians) of an elderly frum man, who was awake but due to a brain injury could not communicate.

    There have been numerous cases in the NYC and other areas wherein hospitals try to end the lives of patients against the familie’s wishes.

    The Chayim Aruchim project of Agudath Israel of America is designed to educate the public about such issues and the challenges we face.

    Let’s agree to disagree on the brain death controversy — it’s been going on for over two decades and will continue for decades longer, I imagine — but let’s agree as well that we need to act when what is happening and being attempted in hospitals nationwide is against ALL opinions of every orthodox rabbi worth his kosher salt.

    It would be great if other Jewish organizations would join in this effort, but my experience with the Golubchuk case was that, except for Agudath Israel, not one of the 7 major Jewish organizations I approached would release a public statement says what the doctors wanted to do, “involuntary euthanasia” (a term previously used in the Naxi era), was “morally untenable” (too bad I hadn’t heard of Rabbi Dov Linzer at that time).

  240. Rav Gil, I was shocked by something you wrote at an earlier point during this whole long debate. You wrote that the very claim that there is something “morally untenable” about a position held by a Gadol be-Yisrael is wrong, unless such a claim is made by one Gadol to another.

    I think this is at the root of your venomous criticism of those with whom you disagree about this topic. And I also think you are utterly and completely wrong. A Torah Jew is obligated to give deep respect to the Torah knowledge of a Gadol be-Yisrael. But if he honestly sees something morally untenable about a position help by such a Gadol then he is obligated to state it! And if the issue is one in the public sphere with global impact, then he is obligated to state it publicly. Lo taguru mipnei ish.

    Unfortunately, we both know of positions and actions taken by contemporary Gedolim that are morally untenable. And no one benefits from silence in these cases, including the Torah itself. In most such cases, it is people who are not Gedolim themselves who brought honor to the Torah by their opposition.

    One need not be a Gadol himself to take an intelligent position on a Torah issue. Any Torah Jew can and must do so if he finds himself in a position to influence the debate and further avodat Hashem. All the more so if he is a talmid chacham (even if a lesser one than the Gadol).

    To respectfully disagree is both permitted and obligatory, because the truth of Torah is above all. And that includes argument about what is or is not “morally tenable”.

    No Rav Gil, one need not be a Gadol to enter the debate. In fact, the gedolim themselves benefit by hearing all voices and not just their own. The discussion here about Brain Death only proves the point.

  241. >If I understand correctly, the point is not that the donor is harvested for a specific recipient but that he will be harvested anyway. Most of the time, there are many potential recipients and any given recipient’s refusal to accept an organ will not change what will happen to the donor.

    How is this in any way relevant? And if he refuses it and the donor is returned to the process of looking for another receipient and ends up “living” for another month, or year, or week, or for another 10 minutes?!?! This time of his “life” is not important to preserve? Further, if I know someone will definitly be murdered by another person, does this give me a heter to murder them first?!?! How is ANY of this morally tennable? The only explanation is that the poskim who support this are not aware of the process which of course brings up the question of how said poskim can allow themselves to come to any conclustion on such a serious topic without making sure that they are first well informed.

    >By the way, a friend of mine called UNOS yesterday and after a conversation concluded that R. Bleich’s explanation to him of the transplant process was more accurate than R. Tendler’s on a crucial point. I’m not sure of the details, though

    Considering that R’ Bleich has been caught serveral times in what, in the best case, was propogation of misinformation and that I am not aware of any equally conclusive accusation of R’ Tendler. I think you should supply us with much more specific information when implying the R’ Bleich is a more reliable and less biased source for information than R’ Tendler. In fact, I have to say that before this whole thing hit the blogs, I thought that in the two sides of this debate, there are equally valid opinions which are all well informed to the realities of modern medicine. I now have the distinct feeling that the pro-BSD side is much much more aware and educated of the facts and the continued ad-hominem attacks by their opponents are not helping their case.

    > Just as R. Herzog convened a conference of Gedolim in 1941 to determine whether the world begins at China, we need such a conference of Gedolim today, and all the more so.

    Why? the conference did not stop much of the chareidi world, led by the CI to completely ignore its conclusions.

  242. Dr. Zacharowicz,

    You continually try to veer the entire discussion into irrelevant territory. You are making so many logical falacies I don’t know where to start. Let me begin by saying that it is never a valid ethical argument to argue that since ethical person A hold position B, then position B must be moral. And further, it is obnoxiously invalid to further argue that if person C argues that position B is immoral and therefore, by implication, accusing ethical person A of taking an unethical position, then person C is immoral.

    So your name dropping is not helpful to this discussion. Further, Rav Elyashiv’s postion regarding chinese transplants is COMPLETELY irrelevant. Everyone in the orthodox world agrees that this is murder and assur. What does this have to do with “murdering” a BSD patient to get their organs just because if you don’t do it, someone else will “murder” them anyways?

    >By this logic, by the way, we should deny blood transfusions to J-Witnesses.

    Only, no one has to “die” for a blood transfusion. Further, I for one, would not favor such policy. My criticism is very simple, that the very fact that someone who will not donate organs is willing to “murder” someone who is BSD for their organs, is an untennable ethical position. You pointing out that great poskim hold this postion does nothing to make it more ethical but rahter makes me question their ethical instincts. The fact that it offends you that an orthodox Jew can feel this way about great poskim is unfortunate – however – you must learn to debate with people on more universal grounds without constant apeals to the authority of yourself or others. It is immature and accomplished nothing.

    Your appeals to our emotions are also pointless. Do you think you are convicing anyone by accusing HODS and the pro-BSD croud of antisemitism? Please answer the ACTUAL criticisms of the RCA paper on factual grounds – so far you have done nothing of the source. (oh, and stop inviting people to yarchei-kallah, this discussion is occuring on the web – so either participate and bow out)

  243. Yonatan: I think this is at the root of your venomous criticism of those with whom you disagree about this topic. And I also think you are utterly and completely wrong. A Torah Jew is obligated to give deep respect to the Torah knowledge of a Gadol be-Yisrael. But if he honestly sees something morally untenable about a position help by such a Gadol then he is obligated to state it!

    I entirely disagree. Kavod ha-Torah demands that we disagree while showing utmost respect and humility, and couching our language in very careful terms. It also demands giving the benefit of the doubt to Gedolei Torah, although that is actually a different obligation of dan le-kaf zekhus. Rav Aviner has a teshuvah about how to refer to the Satmar Rav. Unlike R. Yehudah Henkin, who holds we should show him no respect, R. Aviner demands that we show him respect. I can’t see how R. Aviner is wrong on this. Anything less leads to chaos.

    Chardal: How is this in any way relevant? And if he refuses it and the donor is returned to the process of looking for another receipient and ends up “living” for another month, or year, or week, or for another 10 minutes?!?!

    We are not talking about someone on the transplant list who then refuses. We are discussing putting one’s name on the list to begin with. If one person’s name isn’t on it then someone else’s will be, leading to no delay at all. The same exact process will take place, which might be a little quicker or a little longer, but will essentially take the same time. There is certainly no way to know in advance.

    I am not aware of any misinformation R. Bleich has been accused of propagating. Can you be more specific?

  244. Doron Beckerman

    And if he refuses it and the donor is returned to the process of looking for another receipient and ends up “living” for another month, or year, or week, or for another 10 minutes?!?! This time of his “life” is not important to preserve? Further, if I know someone will definitly be murdered by another person, does this give me a heter to murder them first?!?! How is ANY of this morally tennable?

    שו”ת אגרות משה יורה דעה חלק ב סימן ס

    וצריך לומר שסברי שגרע חיי שעה זו מגוסס שזהו כל חיותו, וכמו כל אדם בריא שאין חלוק בין קטן שיש לו לחיות לפי המצוי הרבה שנים כשבעים ושמונים ויותר ובין בן תשעים ומאה שלפי המצוי יחיו רק זמן קצר, אבל הכא שהוא ממש רק חיי שעה מחייו אינו דומה להורג סתם אדם, ולכן אף שודאי אסור להרוג וגם מחללין שבת אף על חיי שעה כזו, מ”מ כיון שא”א להציל חיי שעה שלו בלא שיהרגו כולם נדחו חיי שעה שלו מפני כל החיים של השאר, ומצד עצם החיים שלו סובר ר’ יוחנן שלא נחשב מסירה מהם כיון שגם בלעדם ימסרו בידם כדלעיל, ולכן מותר למוסרו לר’ יוחנן בייחדו, זהו מה שצריך לומר להר”ש והר”ן.

    IOW (according to Rabbi Yochanan in Yerushalmi Terumos, who most Rishonim hold like), there is a difference between a Goses, where the remainder of his life may not be curtailed for the sake of extending the life of a young man, vs. one whose natural lifespan is definitely going to be actively curtailed, and allowing him to live whatever short lifespan he has left before the active curtailing thereof, will cause the death of others who would otherwise live out their natural lives, wherein one may hand over that person to be killed (and, by extension, kill him) immediately in order to save the others from death.

    The difference here is that one is killing someone to save the others’ longer life expentancy not just by allowing him to live his natural lifespan, but in order to extend it. But is that a real moral difference between the two?

    While Reish Lakish might disagree with this, and RMF has a different analysis of the dispute altogether, it is not a morally untenable position.

    ISTM that deciding who should live and who should die based on extra-Halachic considerations is morally untenable.

  245. Yi’yasher kochakha and thank you, R. Beckerman, for raising the important issue of “Yichaduhu”, which is certainly relevant to the issue of registering for organs, as per my analysis in the “News & Links [Jan. 17]” forum, comment on Jan. 17 at 10:15 p.m.

    Essentially, one cannot employ Yichaduhu as a justification to register for organs for two reasons:

    (a) As RSZA has ruled (referenced in my comment there), Yichaduhu is only potentially relevant when there is an outside gangster who links the lives of the two parties, or where one party (even by its mere existence) is threatening the other by cause-and-effect. (E.g. 1977 Philadelphia case of conjoined twins, which – as you correctly allude – was apparently adjudicated by RMF on the basis of “Yichaduhu”, as per the analysis of RJDB in Benetivot Hahalakhah III, pp. 65-79.) In the case of organ donation, the existence of the donor does not threaten the existence of the would-be-recipient in any manner whatsoever. The donor and would-be recipient are completely independent. The donor is doubtfully alive, doubtfully dead [-if one agrees with S. Spira’s opinion, apropos the RMF/RYBS vs. RSZA confrontation over the Chatam Sofer (paralleling the unresolved cow lactation controversy) as well as the unresolved dispute among the Acharonim regarding Eli Hakohen], whereas the recipient is dying due to organ failure. The organ failure was not caused by the donor, but is rather a pathology being independently visited upon the would-be-recipient. Thus, even Rabbi Yochanan would agree we cannot doubtfully kill the donor to save the recipient.

    (b) It is not even clear that the Halakhah actually follows Rabbi Yochanan in a case of Yichaduhu. In Benetivot Hahalakhah III, p. 72, RJDB rules that since the Rabbi Yochanan vs. Reish Lakish dispute is unresolved in the Rema in YD 157, we are obligated to pursue “shev vi’al ta’aseh” and to die rather than follow Rabbi Yochanan. [Indeed, in RMF’s analysis which you excellently referenced, RMF never allows handing over the designated victim unless even Reish Lakish will agree with Rabbi Yochanan. Thus, RMF agrees with RJDB.]
    Admittedly, ROY [in his recently published Shu”t Yabi’a Omer X, Choshen Mishpat no. 6, sec. 1-4], appears theoretically inclined to authorize surrender of the designated victim on the basis of Sha”kh to Shulhan Arukh YD 242. [The same Sha”kh is elliptically cited by RJDB in Bioethical Dilemmas II, p. 298.] However, a careful examination of the Yabi’a Omer indicates that he seems to have merely considered using the Sha”kh as a mitigating consideration to be combined with a separate mitigating consideration. Namely, in the context of Entebbe, rather than permit actively surrendering a designated victim, Yabi’a Omer is prepared to consider *passively* allow terror hostages in Uganda who have already been captured (whom Yabi’a Omer envisages as a “designated victim”) to remain captured, for the sake of protecting the citizenry of the state of Israel from further terror attacks. Moreover, Yabi’a Omer ultimately rejects such a leniency, such that RJDB’s conclusion appears to stand effectively unchallenged.
    This is also implicit in RJDB’s recent “Sacrificing the few to save the many” in Tradition 43:1. RJDB cites the dispute between Rabbi Yochanan and Reish Lakish, but is never makhri’a to the side of Rabbi Yochanan (because it is impossible to do so).

    In summation, Yichaduhu will not justify registering for an organ. The only real possible justification is the assumption of RSZA that the laws of homicide for a Noahide are different than the laws of homicide for a Jew. But, as indicated, RMF questioned this.

    Indeed, in his recent lecture on the topic (delivered just days ago in Israel) which is now available on the internet, RMDT is specifically asked (by a highly sagacious member of the audience) at 1:25:40 into the recording whether the laws of homicide are different for Noahides, which could potentially justify registration for an organ in the Diaspora. In responding, RMDT does not specifically cite RSZA, but he does say (which is certainly consistent with his father-in-law’s approach) that there is no difference between a Noahide and a Jew. My intuition is the Halakhah (out of doubt, since we do not have a clear masoret for millenia otherwise) follows RMDT on this point, and therefore it is forbidden to register for organs even in the Diaspora. But let’s not ask S. Spira, let’s ask the Gedolim in their face-to-face conference (which certainly must include RMDT), since this is a matter of piku’ach nefesh.

  246. R’ Chardal,

    Your case is persuasive and your points are well taken, but – at the same time – Dr. Zacharowitz (who is also a tzaddik gammur) deserves special credit for invoking RYSE’s position regarding China. The reason for this is that – as explained in the “Brain Death in the News” forum, comment on Jan. 9 at 2:09 a.m. – RYSE essentially only allows registering for organs on the highly novel assumption that there is no prohibition of geram retzichah in the case of causing the death of a gossess bidei adam or treifah. The Chinese example proves that RYSE is consistent with his pesak halakhah, since the Chinese prisoners are neither a gossess bidei adam nor a treifah. Therefore, RYSE forbids registering for their organs. But, as I indicate in that comment, RYSE’s lomdut in the case of a gossess bidei adam or treifah appears questionable – and indeed was rejected by RSZA. Thus, we are left with a safek and – again – I cannot see how a Jew in good conscience can ever register for an organ. I’m not the first to say it; RHS said so himself in his original 1988 symposium with RMDT. RHS has obviously retracted since then, but I see no compelling reason for a retraction, and it seems to me that the Halakhah follows RHS for what he said in 1988. [-Again, I hasten to add that the RCA was still correct to vote in 1991 the way it did, because at that time it was only aware of RMF’s perspective on the Chatam Sofer, before RSZA’s perspective on the Chatam Sofer came light. But with RSZA’s rulings, I think it vindicates RHS’s 1988 speech, and it also triggers the concern for geram safek retzichah that RHS articulated in 1988. Thus, the RCA is not flip-flopping from the 1991 R. Binyamin Walfish to the 2010 R. Asher Bush; both R. Walfish and R. Bush are normative – each in his time according to the canons of the Oral Torah.] Again, S. Spira’s opinion needs to be cross-verified with a consensus of Gedolim.

    I believe that the 1941 conference of Gedolim regarding the international dateline was a indeed great success. Although it ended without consensus, it proved precisely that point – that there is no consensus possible (since we have contradictory indications in the sugyot of Rosh Hashanah 20b and Yoma 54b regarding the centre of the globe) and hence there is a genuine safek in all geographical venues located between 90 degrees and 180 degrees of longitude east of Jerusalem. [Therefore, the conclusion of how a Jew should behave in all those areas is explained in the article written by R. Moshe Ashen and (lihavdil ani hakatan) myself in the Beit Yitzchak, Vol. 39, p. 396.]

    Now, 70 years later, we need the same manner of international conference of Gedolim regarding the definition of death, and even more so. Although my opinion regarding the international dateline has been explained in the referenced article, one could always say “S. Spira is a total am ha’aretz, his opinion can be rejected and ‘barei li’ (it is certain to me) that Shabbat in Japan is on Day so-and-so. (either following Chazon Ish or following R. Tukatchinsky)” [Though I hasten to note that RJDB and RMW have both reviewed the article and graciously granted their consent. Still, perhaps one could argue “barei li” that RJDB and RMW are totally wrong regarding the international dateline and their opinion can be granted no credence.] But the same seemingly cannot be said for the definition of death, for as RSZA has ruled, “barei li” only helps on a matter between oneself and one’s Creator. “Barei li” does not help to potentially spill someone else’s blood. “Hamotzi mechaveiro alav ha’re’ayah” (Bava Kamma 46b) – we can only take away a patient’s status as a Gavra (and thus be permitted to bury him or disembody his organs) if we have unanimous consensus that he is dead. Otherwise, we are faced with safek piku’ach nefesh for the brain dead patient. That’s why a conference of Gedolim is so urgent.

  247. Dr. Zacharowicz’s rhetorical flourishes about parasites notwithstanding, the bottom line is that those who oppose BSD are (i) unwilling to donate a heart because it is murder but (ii) actively seek to benefit from an act they consider murder. I leave it to others to choose what word defines such a position. But that is the position that many have called morally untenable.

    In addition his reference to Jehovahs Witnesses and blood transfusion is telling in that he switches from what they do to what doctors or society should do. The true comparison of Jehovah Witnesses/blood transfusion case and the oppose BSD/heart transplant case is the in the first, the JW refuse to give transfusions but they also refuse to accept transfusions; i.e., their refusal to participate includes a refusal to benefit from an act they oppose. That is morally tenable and it is exactly the opposite of what the BSD opponents advocate; refusal to participate does not include refusal to benefit.

  248. Doron Beckerman

    Thank you R’ Spira.

    My point was not to allow registering for organ receipt, which I do not believe was part of the process that Chardal was talking about (as opposed to what was later clarified by R’ Gil).

    As I understood the case that Chardal constructed, a jurisdiction/hospital merely carries a database of people who are in need of a heart transplant, and contacts these potential recipients based on length of time on that database, or some other criterion independent of the will of the recipient. They have told the recipient that his name has come up, and they have a donor they are prepared to kill in order to save the recipient’s life, or he (the recipient) will die.

    They are saying that “either you let us kill him, or you will die”, and this linkage had nothing to do with the will of the recipient. It is not the same as the organ transplant registration process.

    I was not attempting to be machri’a like Rabbi Yochanan (though the Chazon Ish YD 69 comes very, very close to doing so), but to show that it is not a morally untenable position to take.

  249. Rav Gil, when I wrote that “a Torah Jew is obligated to give deep respect to the Torah knowledge of a Gadol be-Yisrael” you replied that “I entirely disagree. Kavod ha-Torah demands that we disagree while showing utmost respect and humility…” Then you mention a debate between two Zionist Torah scholars about whether one may disagree with the Satmar Rav…

    Very strange. We seem to be in full agreement about respect. I too agree that one must respect the Torah of the Satmar Rav (even while vehemently disagreeing with him).

    So where then is the disagreement? The only true disagreement between us therefore seems to be whether one is really and truly allowed to disagree… 🙂

    Seriously, it seems to me that there is something “morally untenable” about the idea that one is not allowed to seriously disagree with Gedolei Torah, especially regarding questions that touch upon realms far removed from Torah knowledge. Not only is such a prohibition morally untenable, but in your words, such an approach is quite likely “to lead to chaos” (as it actually does in the charedi world today).

    Case in point: There is absolutely nothing in Rav Dov Linzer’s public letter (which I have now read in response to this discussion), signed by numerous talmidei chakhamim (a couple of whom at the beginning are themselves gedolei Torah), that is disrespectful to gedolei Torah. The letter strongly and legitimately disagrees with a certain approach. There is nothing wrong with that.

    I suspect — and hope I am wrong — that the real issue underlying this huge public debate and a string of some 250 comments (!) is that you are highly uncomfortable with anyone whom you don’t think is “great” enough questioning *your* Gadol, who seems to be Rav Herschel Schachter. I feel that one can have deep respect for Rav Schachter as a posek, while at the same time not feeling that he is my posek (despite having learned many years at YU), and that furthermore one can respectfully question and even disagree with his positions. In fact, I think he himself feels exactly the same way… 🙂

  250. Yonatan: There are two issues. One is that when you have to disagree, to do so respectfully. I do not believe that the phrase “morally untenable” even approaches the level of respect required. The second is that only ba’alei hora’ah muvhakim can have an opinion on matters of this complexity. This isn’t just an issue of forgetting ya’aleh ve-yavo. That said, I fully acknowledge that there are poskim of great stature in both sides of this issue. R. Shaul Yisraeli and R. Abraham Shapira can disagree with R. Shalom Zalman Auerbach on something of this magnitude. R. Dov Linzer is not in that league.

    When I initially objected to this Statement, I thought R. Schachter forbade receiving organs. So he had nothing to do with it. It was disrespect toward R. Shlomo Zalman Auerbach that I was protesting.

  251. “If I understand correctly, the point is not that the donor is harvested for a specific recipient but that he will be harvested anyway. Most of the time, there are many potential recipients and any given recipient’s refusal to accept an organ will not change what will happen to the donor.”

    Why is the fact that the participation or non-participation by the recipient will not change what will happen to the donor relevant? If someone says to me “shoot person A and if you don’t I will shoot him and you,” am I allowed to shoot A even though my shooting will not change what will happen to A?

  252. These subtle are complicated and different poskim have different ways of approaching them. See here for R. Ahron Soloveichik’s approach: http://www.yutorah.org/lectures/lecture.cfm/735799/Rabbi_Aaron_Soloveichik/Death_According_to_the_Halacha

  253. MDJ wrote in part:
    “The decision to remove very ill patients from life support is made every day in hospitals, and until recently, this had no connection to organ donation because such organs could not be transplanted”

    Ain Haci Nami-Does that remove such conduct as being considered at least a Safek of actively aiding contributing and causing such a person’s death, which may very be an act of Rtzicha Bkum VAseh! Lots of people are murdered every day-is that grounds for rationalizing the acts of the murderer barring the presence of a demonstrated defense such as insanity?

  254. FWIW, back in the early to mid 1980s, Mossad HaRav Kook sponsored an annual Kinnus LTSBP at which many Gdolei Talmidie Chachamim from the US and Israel gave shiurim. I attended a few and recall vividly when RAS, then well before his stroke, spoke from about brain death with none less than RMT present, who sat there shaking bis head and grimacing in open disagreement, to use a polite phrase, with RAS’s presentation. Perhaps, the advocates of brain death and oforgan donation should realize that the issue is hardly a Davar Pashut UBorer and that demeaning opposing views, especially by Gdolei HaPoskim, as well as the authors of the RCA Position Paper and viewing Psak as a process subject to an internet position or a Kol Koreh are errors of a fundamental nature with respect to the issue at hand.

  255. “One is that when you have to disagree, to do so respectfully. I do not believe that the phrase “morally untenable” even approaches the level of respect required.”

    I do. What’s wrong with it as a valid and compelling argument?

    “The second is that only ba’alei hora’ah muvhakim can have an opinion on matters of this complexity. This isn’t just an issue of forgetting ya’aleh ve-yavo.”

    It would be one thing to say that “only ba’alei hora’ah can *pasken* on matters of this complexity.” But to say they only they can have an informed opinion? That is a recipe for skewed public debate and ultimately for a corrupt Torah society.

  256. Dr Zacharowitz-Just curious- I thought that R Asher Weiss is now the Posek for Shaarei Tzedek. Have you invited R Weiss to speak at the Halachic think tank that you attend and are associated with on this issue? FWIW, would you invite a Posek who supports brain death to speak at the same?

    Unfortunately, I agree that HODS is presenting a biased, one sided and agenda driven agenda so that Torah observant physicians and the as of yet undefined number of Torah observant Jews sho are in need of a transplant can avoid the real issue-that there may very well be a conflict that is beyond resolution between the Harvard criteria which aid and abet the medical and health care community in their desire to treat patients as rapidly and economicallly as possible while avoiding stress to a family, but which may very well be incompatible with a classical POV of death being defined as cessation of respiratory and circlatory function.

  257. >We are not talking about someone on the transplant list who then refuses. We are discussing putting one’s name on the list to begin with. If one person’s name isn’t on it then someone else’s will be, leading to no delay at all.

    That is again not true. This is not a nearly instantaneous algorithm that runs through one set of data and matches it with another. The process of matching donors is a protracted and partially manual procedure and your refusal of the organ (after you have put yourself on the list and have been contacted) will allmost always garauntee the donor some extra time in his life. There is no situation where there will be “no delay at all.”

    >The same exact process will take place, which might be a little quicker or a little longer, but will essentially take the same time. There is certainly no way to know in advance.

    I think that at the moment of the final decision, you know 100% that your refusal will allow the person more “life.”

    >IOW (according to Rabbi Yochanan in Yerushalmi Terumos, who most Rishonim hold like), there is a difference between a Goses, where the remainder of his life may not be curtailed for the sake of extending the life of a young man, vs. one whose natural lifespan is definitely going to be actively curtailed, and allowing him to live whatever short lifespan he has left before the active curtailing thereof, will cause the death of others who would otherwise live out their natural lives, wherein one may hand over that person to be killed (and, by extension, kill him) immediately in order to save the others from death.

    I am not up on this sugya, but is that not talking about a scenario where you must choose a victim from among a group in order to save the group and therefore one must make the unfortunate decision of who should be chosen? How is that in any way like the case we are discussing? In this case, it is two individuals. Isn’t the case you cite also a scenario in which shev veAl Taase will lead to everyone’s death? In this case, the “goses” can sometimes stay alive indefinitly in his state. And further, even if you are right, this would not be a prescription for a leKatchila halachic public policy! You are basically saying that people participate in an institution that is wholesale murder!

  258. “Unfortunately, I agree that HODS is presenting a biased, one sided and agenda driven agenda …”

    HODS admits it has an agenda or, to put it in other words, it has a very specific position which it strongly advocates. But Robby Berman has written here that HODS posts on its website every halachic article on brain death, including ones against it, and that if it is missing any articles it will post them if brought to its attention. In light of that, how can you say that it presents a “biased and one sided” view of this admittedly complex issue?

  259. Doron Beckerman

    but is that not talking about a scenario where you must choose a victim from among a group in order to save the group and therefore one must make the unfortunate decision of who should be chosen?

    No, the dispute there is where the non-Jews have already selected who they want, like here where the donor is going to die.

    In this case, it is two individuals.

    Who will both die if the organ donor is not killed – like the case there where all (even if they are only two people the same applies) will die if they do not hand over the fellow.

    Isn’t the case you cite also a scenario in which shev veAl Taase will lead to everyone’s death? In this case, the “goses” can sometimes stay alive indefinitly in his state.

    The assumption is that he will be paired with another recipient and killed.

    And further, even if you are right, this would not be a prescription for a leKatchila halachic public policy! You are basically saying that people participate in an institution that is wholesale murder!

    All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable.
    Like I said, I think a distinction can be made between killing someone who is slated to die in order to preserve one’s life, versus in order to extend it –

    [IIUC that’s what RSZA means is Minchas Shlomo II:86 –
    נכון הדבר שספק חי נדחה מפני הודאי כמ”ש השטמ”ק בערכין דף ז’, וכן טרפה מפני שלם כמ”ש המנ”ח במצוה רצ”ו, אך כל זה דוקא כשיש קשר בין השנים והם תלויים זה בזה אפילו בדליכא שום דין של רודף, וכמו כן בכה”ג שאם לא יהרגו את הספק או הטרפה ימותו שניהם, או כהעובדא דעולא במס’ נדרים כ”ב ע”א שמותר לקרב מותו של נוטה למות כדי להציל עצמו שלא יהרג, אבל לא להמית טרפה או ספק גוסס בקום ועשה עבור הארכת חיים של איש אחר, וכמו שאין להעלות על הדעת שיהא מותר לחולה להאריך את חייו במיתת טרפה אף להמתירים להציל עצמו בממון חברו גם בע”כ של בעל הממון.
    but I could be misunderstanding what he means.]

    – but is that the line you would draw between morally acceptable and untenable?

  260. It seems to me that some of the comments confuse two different objections to the “refuse to give but okay to receive” position. One objection is that it is selfish, like refusing to give blood (because you’re too lazy or would rather not have your skin pierced by a needle) but being happy to get a transfusion when you need one. Being selfish, though, is not being immoral; it is a negative character trait that, for example, parents try to teach their children to overcome. And, while it would unseemly, to say the least, if the leadership of a community told its members to act in a selfish way, again, we’re not talking about morality.

    The other objection is where the “morally untenable” comments come in; i.e., if you believe the act of removing a heart from a BD person is murder, how can you as a moral person participate in such an evil act (since, I think/hope, we all agree that murder is an evil act although we might disagree whether a particular act is murder). Participating in evil is not being selfish; it is being immoral.

    While neither of the two (being selfish and being immoral) brings credit to those who are, or who advocate, being selfish or immoral, they shouldn’t be confused.

  261. Steve – I simply don’t understand how you can say that the circulatory definition of death is ‘traditional’. Find me one teshuva or peirush from any posek before 1839 (when the Chasam Sofer’s teshuva was written) mentioning cessation of circulation as part of the definiton of death. The addition of circulation (as opposed to heartbeat, which was mentioned by the Rashi and the Chacham Tzvi because they thought it played a role in respiration) was a concession (albeit perhaps an unconscious one) to modernity. Apparently if you’re the Chasam Sofer and you make a concession to modernity, your concession becomes ‘tradition’.

  262. Reply to Dr. Z. – Your education and credentials are quite impressive, which makes what you write all the more mystifying. Our job as physicians/scientists is to make sure that the medical information under discussion is accurate. Reb Gil very kindly posted my contribution. one of my logical analyses was published in Meorot. These are the facts as best as I can understand them, having read every single article in the medical literature that I could find on brain death(using pubmed and other search engines). You have not refuted or even addressed any of the information I have posted. I welcome the opportunity to discuss the facts, and if I have made any errors in fact, I am more than willing to admit it. Unfortunately, most of what you post doesn’t address core facts. 2 years ago, in our first interaction, the discussion focused on brain death, and you brought in the fact that patients in persistent vegetative coma(pvs) sometimes awaken. While this is true and interesting, it has nothing to do with brain death, and just confuses those who may not know the difference between the two. You recently at Cross Currents noted that an article on brain death, recommending the possibility of using only one exam instead of two, included in the title that this would increase organs available for donation. Instead of actually addressing the content, you imply that this title proves that brain death is only for the purposes of donation. Even after I explained the article to you, your further comments showed that you either hadn’t read the article, or didn’t understand it.

    I have already explained my use of the word ‘interesting’ but it serves your purposes to again bring a discussion that gives the false impression that I am in favor of removing life support from patients who are not brain dead in order to harvest organs.

    We should all commit to discussing the issue in as factual a manner as possible, addressing the facts with other facts, and not trying to win the argument by confusing the readers.

  263. I regret that time constraints do not allow me to continue to read all the comments. I am happy to respond to any questions or concerns. please email me at noamstadlan-at-gmail-com

  264. Glatt some questions

    Dr. Stadlan makes an important distinction between a person who is in a persistent vegetative state (as Terry Schiavo was)and a person who is brain stem dead. No one advocating taking organs from a person who is brain stem dead would advocate taking organs from a person in a persistent vegetative state. It’s illegal. In fact, many pro BSD folks were probably some of the biggest advocates that the plug should not be pulled on Terry Schiavo because she was still very much alive, even if the quality of her life was not present.

    I also believe there is major confusion even between the terms coma and brain stem death, which has unfortunately contributed to a large number of people being viscerally against brain stem death as halachic death. They know people who have been in a coma and have woken up, and they falsely equate coma and brain stem death…so they viscerally are horrified at the idea of taking organs from brain dead individuals. More education about the distinction is needed.

    To be clear, no one in the history of mankind has ever woken up after being correctly diagnosed as being brain dead. Brain death is not coma, and is not a persistent vegetative state.

  265. Several things have been confused.
    1) Definition of death. While Steve Brizel and others still raise it, I don’t know anyone here (including robby Berman of HODS) who have argued with the right and morality of halacha determining the time of death. No one argues that rejecting brain death is immoral. There are questions raised about the tactics used by some of the opponents of brain death in terms of how they deal with the opposing sources – (see Rav Spira’s admissions about rDJB) but not about the intrinsic issue. Anyone who continues to raise that as an issue is being dishonest.

    2) What is at issue is, if one rejects brain death as a valid criteria – are there any implications about receiving organs. It is here that the language of morally untenable is raised – the issue is not about the time of death, but the right to benefit from what one now views as an immoral act (even if it is an act that will happen anyway).

    There are several dimensions to this issue which complicate the discussion

    a) relation of halacha to morality. Hirhurim posted RM WIllig’s post about halacha defining and the only source of morality – and the discussion of that issue is very relevant here, as many people have pointed out, Rav Willig’s position is actually a minority (and extreme, as phrased) position – and the question becomes one of the ability of the general community to criticize halachic issues on moral grounds.
    (BTW, in an unrelated post, Hirhurim posted a post that there shoujld be zero tolerance of immoral behavior by rabbanim – which raises even more acutely the issue of the relationship between halacha and morality – in the opposite direction, as there are clearly world class poskim who would fit the ban…)

    b) who is a gadol – while the list of signatories to the statement about brain death contains some names that are less than luminary, it contains others that are very well recognized in some circles as rashe yeshiva and poskim – even if not in Gil’s circles. As R M Tendler, a recognized posek, has essentially expressed agreement with that position – even if he did not sign the statement – this issue seems far more problematic to emphasize.

    c) Communal versus individual. One issue that has to be confronted is the difference between communal and individual issue – it is one thing for an individual, confronting death, to be willing to do things he might not otherwise do – and for his posek to permit it. It is another to state as a community that we wish to receive but not give.
    The first is one that is understood. If one looks at the Jehova’s Witnesses example, brought by many (albeit a bad analogy – as the shortage of blood does not begin to compare with the shortage of organs) – in general, those who end up accepting do it recognizing that they are compromising their principles – they are not arguing that everyone else should give and they should receive – they are arguing that no one should give – but, facing death, will receive.

    The second is problematic – because it raises an exceptional case to a norm. However, most halachic psakim are given to the individual – and not every posek recognizes the communal dimensions of an issue.

    d) hillul hashem. The last issue is the definition of hillul hashem – and whether we worry about the feelings of the general community – especially when those feelings are based on moral principles that we endorse, rather than reflecting an intrinsic difference in moral principles. The reality is that the position of receiving but not taking is causing a hillul hashem in the broader community – and the defenses raised are not working (regardless of whether one thinks that they should).

    Meir Shinnar

  266. J at 10:05 am re Rav Schachter audio clip: I don’t understand. That’s only a part of Rav Schchter’s analysis and not his conclusion. You can see that very same point in his article in BeIkvei HaTzon, which I will IY”H post tomorrow. It isn’t his conclusion.

  267. I agree with Dr. Shinnar (-not that the distinguished scholar needs my endorsement), and I thank him for his kindness in citing me as a reference. A review of the tour de force lecture of HaRav HaGa’on RMDT in Israel (now available on You Tube under “Rabbi Tendler Lecture 2011”) reveals that RMDT is quite persuasive in testifying that RMF ruled that brain death=death, and that R. Binyamin Walfish (a member of the audience who is invited by RMDT at the end to speak) is quite persuasive in testifying that RYBS ruled that brain death=death. I believe that any Beit Din Shel Yisra’el would be obligated to accept this testimony as authoritative and true, apropos Tosafot to Yevamot 77a. Both RMDT and RBW enjoy a chezkat kashrut of the highest distinction, and as per the gemara in Kiddushin 80a “soklin visorfin al hachazakot”. [I.e. we decide matters of life and death based on a chazakah.] HaRav HaGa’on RJDB has been refuted regarding the positions of RMF and RYBS. I can’t speak for RJDB, but all I can say (as a student of RJDB) is “tzadkah mimeni” – RMDT and RBW are more righteous than I, and I must concede to them.

    At the same time, totally wrong methodology on RJDB’s part doesn’t necessarily mean totally wrong conclusions. There is the outstanding issue of the position of RSZA based on the Chatam Sofer. At no point in the lecture does RMDT address the Chatam Sofer. He does, however, cite RSZA on several occasions as follows:

    (a) 48:05-48:25 into lecture: In discussing the pregnant sheep experiment, RMDT says that it proved a beating heart is not a sign of life. [S. Spira’s response: Actually, RSZA ruled that the pregnant sheep experiment proved that a beating heart is doubtfully a sign of life in the brain dead patient.]

    (b) 51:00-51:40 into lecture: RMDT reports that he met with RSZA many times, and RSZA told him the brain-stem death is death in America. [S. Spira’s response: Actually, RSZA ruled that brain-stem death is doubtful death, and since he believed that the Noahide legislature/judiciary enjoys the authority to define the parameters of homicide for Noahides, therefore in America a Jew may register to receive an organ.]

    (c) 57:45-58:10 into the lecture: RMDT reports that he wrote to RSZA and RYSE. [S. Spira’s response: And they responded that they regard brain death as a doubt.]

    (d) 1:15:10-1:17:15 into the lecture: RMDT reports that his very distinguished disciple Dr. Barry Hachtoff asked RSZA what is the status of brain death, and RSZA answered that in America, one can receive or give an organ. [S. Spira’s response: Dr. Hachtoff, who is a tzaddik gammur, must have slightly misheard (as occurred in the gemara in Shevu’ot 26a where either Rav Kahana or Rav Assi misheard what Rav said; as well as the gemara in Niddah 36b where Rav Assi misheard what Rav told him on Rav’s deathbed). What RSZA actually told Dr. Hachtoff is that one may receive an organ, apropos RSZA’s chiddush of how the Noahide Code operates. RSZA never permitted a Jew to give an organ, neither in Israel nor in the Diaspora.]

    Given the above responses of S. Spira to HaRav HaGa’on RMDT, we see that the status of brain death is apparently a safek. The one point on which I am strongly inclined to accept RMDT’s disputation of RSZA is (as already mentioned) the conversation at 1:25:40-1:27:00 into the recording, where RMDT does not distinguish between the laws of homicide for Noahides and the laws of homicide for Jews.

    I think it is obvious that Richard Joel, R. Moshe Kletenik and the chief justice of Israel’s supreme court enjoy a moral obligation to invite the Gedolim whom they employ to meet face-to-face, for a conference aimed at reaching unanimous consensus on this matter for which all of humanity looks to the Sages of Israel for moral guidance, which is a sanctification of the Name of Heaven.

  268. I would add that R. Tendler is convincing in his claim that the Chacham Tzvi’s teshuva does not provide support for his opponents, inasmuch as it is clearly focused on the heart as aiding respiration, and not on the heartbeat per se. However, although he responded to R. Bleich’s critique regarding a polio patient who cannot breathe spontaneously, yet we still regard him as alive (he is not shocheiv ke’meis), he did not deal with R. Bleich’s next point regarding, say, a polio patient who is unconscious, who should surely be alive, unless we take the autonomous respiration criteria literally (R. Dovid Feinstein is quoted in the RCA document as affirming that we would actually regard such a person as dead, but this is not the mainstream opinion). If the criteria is spontaneous respiration together with shocheiv kemeis, there are many such people who fulfil both who are not at all brain dead.

  269. Regarding RSZA: does anyone dispute as fact that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population), but (per the letter to R. Feivel Cohen) permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)?

    To the extent the Va’ad Halacha depends on RSZA precedent, this is *the* salient issue in the debate on the phraseology of “morally untenable”.

  270. R’ J.,

    Thank you for your kind support and the excellent question. On this point (viz. why is an unconscious polio patient alive) I can advocate for HaRav HaGa’on RMDT (not that he needs my defense). Since the polio patient may eventually regain consciousness, the polio patient has not met the criteria for death. The criteria for death (absence of motion, respiration and – the big question mark of course – circulation) are only met when they are irreversible, as Chatam Sofer indicates in his responsum. It is only in the brain dead patient (when confirmed with a rigorous protocol) that we know with certainty that the loss of consciousness is irreversible.

    And how do we know that loss of consciousness is a criterion for death? As demonstrated by Dr. Stadlan, it emerges from the gemara in Menachot 37a, particularly as elaborated by Shu”t Avnei Nezer, YD 399 (sec. 3). As mentioned in R. Shlomo Moshe Amar’s responsum, this is also inherent in the commentary of Vilna Ga’on as well as Tiferet Yisra’el to the mishnah in Ohalot 1:6.

  271. I disagree with virtually everything that R’ Gil stated in his comment on 1/23 10:39. I won’t attempt to compare Rav Dov Linzer’s capabilities in analysis and p’sak with the cited prominent Israeli poskim since I am not qualified to make such a judgement. The same, I believe, can be said of anyone posting here. The fact that someone is considerably younger than the cited poskim doesn’t carry the implication that he is therefore unqualified to rule on life and death issues. The issue is not so complex, as R’ Gil would have you believe, but bears grave consequences (not a pun). Moreover, age doesn’t necessarily translate to better judgement, and lack of sufficient familiarity with relevant and current medical practice and knowledge can make such judgements irrelevant.

    The issue of disagreeing with important poskim in a respectful manner is also not relevant in this case. When the world reads that important religious Jewish figures disallow the brain-stem ‘death’ criterion for organ donation but allow it for organ recipients, it creates ill will towards Jews and demeans the standing of Jewish law in their eyes. If we are allowed to violate shabbat in order to avoid such ill will then we should certainly be allowed to use the term “morally untenable” in referring to the brain-stem dichotomy. Especially since none of the adherents of that position were named.

  272. >No, the dispute there is where the non-Jews have already selected who they want, like here where the donor is going to die.

    Then I don’t understand the passage you quoted which says:

    ”מ כיון שא”א להציל חיי שעה שלו בלא שיהרגו כולם נדחו חיי שעה שלו מפני כל החיים של השאר

    How is this in any way applicable to this case. And even if you are right that it is a comproble situation, then surely the factor of time is relevant. The case above is one in which once a person is chosen, then he is murdered at the same time as any other person. In the case of organ donation, your presence or lackthereof on the list can mean an extended lifespan for the donor as long as no other match is found.

    >In this case, it is two individuals.

    Who will both die if the organ donor is not killed – like the case there where all (even if they are only two people the same applies) will die if they do not hand over the fellow.

    No no no. In this case, there is no immediate direct and active danger to the receipient that is in any way comprable to the case above. How can one even compare a scenario of hostile bandits to this scenario is amazing. If, you do not participate, then you will die of natural causes, not at the hands of the same agents who are threatening to murder. Futher, your absence from the list MIGHT lengthen the life of the donor.

    >The assumption is that he will be paired with another recipient and killed.

    Probably he will, at a later point in time. A lot of factors have to come together for this to happen.

    >The assumption is that he will be paired with another recipient and killed.

    But this assumption is not true for a singular point in time.

    >All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable

    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis. But for the rest of us, there needs to be an alignment between basic moral principles and halacha and we often see the violation of these basic moral principles as one of the prime sources of chillul Hashem in the world.

    I think that it is obvious to most thinking people in the world that the question above is a primarily ethical question. One can not seperate the meta-halachic ethical concerns from the halachic legal ones. And any attempt to do so leads to the kind of pilpul in which you engaged above which comes to conclusions such as “its not ok to give organs, but it is ok to murder someone to get organs since he will anyways be murdered by someone else.”

    All the arguments presented so far in favor of the “don’t give/receive” work under a model in which there is this abstract pool of people where one will surely be murdered and we must only choose who will be saved. This is not the case in reality. The connection between the donor and receipient is very strong – to the point that the doctor is legaly removing the organs ON BEHALF of the receipient in american law. He is not being “murdered” stam!

    On a final note, I would like to point out something that seems to be lost on those who would use halachic sophistry to justify that which is abhorant to the ethical instincts of most thinking people. You are literally being mevazeh the Torah when you do this. One need not get into intelectual gymnastics to understand why for the average thinking person, the idea of someone being unwilling to donate organs because it is murder while at the same time being willing to have others murdered on his behalf for their organs is a repugnant idea. I ask you this: would you present this idea to a thinking gentile whom you would not expect to accept your pleas to authority or your demand of respect for the positions of your sages? Do you think that when you present this idea, you would be increasing the kavod haTorah in the world or painting it as a legalistic ethicaly stunted system? In a world where quoting an assertion by R’ Moshe or RSZA is simply useless, can you support your argument based on universal ethical concerns? And if not, do you realize that by detaching your decisions from such concerns, you have made the Torah irrelevant to 99.9% of the worlds population?

    The attitude presented above is precisely what RYYW bemoned in his letters and what caused his depression later in his life. He realized that his advocation of the Meiri as the normative psak in areas of great ethical concern were not so strong from a purely halachic perspective but he hoped that religious Jews would recognize the ethical imperative in the Meiri’s derech. The fact, that most religious Jews, when in private, laughed at the use of the Meiri as normative because it did not fit into their pure halachic analysis caused him great pain and pessimism about the future relevancy of the Torah world. The arguments I see above are a continuation of the attitudes that he was bemoaning. (and I have a feeling that the destrinctions between Jewish life and Gentile life in pure halacha have not made it into this discussion ONLY because there is still left in some people a minimum of universal concern for the ethical implications of such a postion, although it can probably be justified on pure halachic grounds)

  273. R. Shalom – thank you for your answer. It would seem, however, that even taking the additional criterio of ‘irreversability’ into account, we still have not found an answer for a polio patient in PVS – such a person cannot breathe spontaneously, they are shocheiv kemeis and their condition is irreversible – can we say that such a person is dead?

  274. Doron Beckerman

    I have plenty to respond, plenty, but once you say this:

    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis.

    what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.

  275. >what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.

    I was just rephrasing your statement “All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable”

    This is not the only such statement in this discussion. Most of the critiques of the steps taken by the pro BSD camp have decried its “extra-halachic” methodology. In fact, the mainstream approach in the yeshivish world seems to be that any extra-halachic considerations whether ethics or psychology or and other fields should not be involved in the halachic process – which is the sole decidor of what public policy should be. Of course, chareidi rabbinic leaders often use meta-halachic rational in their decision making, but always hide it behind some sort of daas Torah ideology.

    What I write is not bigotry, but rather what I have seen from my interactions with members of this society. I am sure that some members disagree with the party line but they do not let themselves speak out. Mind you, I am not saying that the thought that is valued by the chareidi world in unethical – rather that ethics as an independant discipline have almost no value in chareidi society. In fact, many of the criticisms of the mussar movement (and I would argue that the critiques have one the battle) were very simply that learning classic Jewish ethical texts is a waste of time and that a true “ben Torah” will get his ethics from his gemara and halachic learning. This super-nominic approach to thought results in many social ills among which are the sort of streched moral arguments seen above.

    Now, if you think that the correct approach is to pretend that chareidi society regularly produces complex and nuanced responses to contemporary ehtical issues and problems, and I wish I could agree. Unfortunatly, I have not seen any evidence of such thought. If you could point me in the direction of where in chareidi thought, abstract ethical issues are brought to bare in a transparent manner on public policy decisions, then I would gladly retract my statement to the contrary.

  276. Thank you, R. J., for the important question. A PVS patient can breathe autonomously, as illustrated by the American law cause-célèbre episodes of Karen Quinlan and Terri Schiavo. In the case of the PVS patient, the brain stem continues to function, and so autonomous respiration is still possible. By contradistinction, it is precisely in the brain dead patient that consciousness as well as autonomous breathing are irreversibly neutralized. Thus, a reasonable argument can be advanced that a brain dead patient is possibly dead.

    The key question is whether we are prepared to jettison RSZA’s interpretation of Chatam Sofer. To that effect, the Eytan Shtull-Leber essay is of prime importance. [I thank R’ Anonynmous and Dr. Stadlan for bringing it to our attention.] The essay claims that the circulatory arrest bespoken by Chatam Sofer was only required in order to confirm the irreversibility of respiratory arrest. If that interpretation of Chatam Sofer is accepted, then in our era with our sophisticated understanding of brain death, we could bypass Chatam Sofer (and RSZA who was relying on Chatam Sofer), since we anyway know that respiratory arrest is irreversible.

    The key claim of the Eytan Shtull-Leber essay is the following passage on p. 54:

    “Rabbi Schreiber demonstrates that he also agrees with Maimonides that the traditional respiratory criteria are insufficient in that the cessation of respiration is not always irreversible. Rabbi Schreiber therefore made an addendum to the law, requiring both the absence of pulse and breathing in order for a person to be declared dead.”

    This is markedly different than the interpretation of R. Shabtai Rappaport in his HODS interview (and also his debate with R. Tzvi Flaum, also on the HODS website), who explains that the Chatam Sofer identified circulatory arrest as necessary because circulation is the final manifestation of the benefit of the last breath taken by the person. According to R. Rappaport’s interpretation of Chatam Sofer, the Pesach cow lactation analogy becomes appropriate, thus vindicating RSZA’s ruling that a brain dead patient is doubtfully alive by virtue of his circulation. [I appreciate the fact that R. Rappaport subscribes to his father-in-law’s ruling that a brain dead patient is definitely dead, and that R. Rappaport therefore disagrees with RSZA. But R. Rappaport has actually performed a kindness for RJDB’s camp by immunizing it against the powerful argument presented by the Eytan Shtull-Leber essay. For RJDB will now be able to counterclaim that Chatam Sofer was balancing Yoma 85a with Kiddushin 24b/Niddah 69b, rather than only relying on Yoma 85a. In other words, RJDB will counterclaim that although Chazal seemingly did not understand the details of circulation (since they lived before Harvey), they had some vague appreciation of the phenomonen of circulation, in the sense that they knew that a limb withers when deprived of blood, and that the body as a whole decomposes when deprived of (moving) blood. Thus Chatam Sofer thought that respiration has not legally ended until the circulation which is driven by respiration also stops.]

    The conversation between R. Beckerman and R’ Chardal – who are both tzaddikim gemurim – illustrates just how important a conference of Gedolim is. That conference will have to arrive at a unanimous conclusion how to interpret the Chatam Sofer correctly.

  277. Thank you R. Shalom, for responding to my question. Anonymous (in the earlier discussions on this topic) was me, BTW. I was referring specifically to the case of someone with both polio and PVS, such that they cannot breathe autonomously, and are ‘dome le’even’. Is such a person considered alive according to RMDT?
    I think it’s a big chiddush to say that the Chasam Sofer was referring to the din of a bird whose wing had withered – it seems that he (or the chevra kadisha’s who had instituted the ‘pulse’ test) was simply aware of the scientific deficiencies of using respiratory criteria alone. Especially in light of the fact that references to circulation do not appear in earlier tests of death (we have several such descriptions throughout the centuries), it seems strange that the Chasam Sofer’s teshuva, which was more procedural than anything else, and is clearly based on modernistic conceptions of human anatomy, should be considered the timeless Torah definition of death.

  278. Just as an addendum to my previous point, I’m certain that if RMDT was stuck with someone on a desert island (with no medical equipment except a feather) and that person ‘died’, he would measure his pulse in addition to using the traditional ‘respiratory’ method, as would we all. I’m sure that if he was describing how he knew that this person had died, he would mention the fact that his pulse stopped (as the Chasam Sofer does, and as any paramedic would tell you they would ascertain someone’s death, absent more sophisticated medical equipment). I don’t think this means that they consider heartbeat (inside a ‘body’ – whatever that means) the be all and end all of the definition of life; it is merely how you ascertain someone’s status. To suggest that all the early sources mean that breath is merely an indication of life, which is really defined by cardiac activity, goes against all the textual and historical evidence of Chazal’s intentions, and the simple peshat of the Rambam and Shulchan Aruch, who pasken ‘ad chotmo’. The Rambam is the one who introduced the concept of waiting ‘shema nisalef’ (in Hilchos Aveilus). Nevertheless, he sees no contradiction between not seeing immediate cessation of respiration as an indication of certain death, and a pesak which sees the breath of the nose as being kovei’a – heartbeat alone seems to be of no significance per se.

  279. The debate about Brain-Stem Death as Halachic Death will continue. But, the pressing issue is the notion that Jews should be prohibited in donating, but permitted to accept BSD organs.

    Given the silently acknowledged facts regarding RSZA I summarized yesterday at 5:10pm , then the question remains about whether it is disrespectful to acknowledge these facts publicly (“100 rabbis call ruling by R. Shlomo Zalman Auerbach morally untenable”). It does not seem to me that it is.

    First, given the 1992 Jerusalem Post report that RSZA was not fully convinced by either extreme position. As evidence came (late in his life) in he shifted one way and then the other.

    Second, in regard to being restrictive in Israel, he knew that Jews could choose to rely on the permissive psak of the Rabbanut Rashit (as RAL appears to, from the earlier discussion here). Thus, it was logical for him to be restrictive on both donation and receipt of BSD organs in Israel.

    Third, in regard to being permissive in the US, this was a psak – that while eventually published – was in response to a specific US posek’s request to RSZA regarding himself. It is entirely understandable that RSZA would be permissive in that case given the person involved and his own ambivalent thinking on BSD organ transplants.

    Net net: there was nothing “morally untenable” about RSZA’s separate piskei din as they occurred in time and place; but, the Va’ad Halacha’s use (explicit and silent) of the grouping of RSZA’s psakim, without carefully delineating their context, can legitimately be called to account – as it has.

    It would be wise for the Va’ad Halacha to issue an addendum to resolve this sooner rather than later.

  280. Confirming evidence of my second point:

    [Director of the late Chief Rabbi Shapira’s office, Rabbi Eisman said] “He personally witnessed a number of instances, he said, in which Rabbi Elyashiv and Rabbi Shlomo Zalman Auerbach, another Hareidi decisor who opposed the brain-death criteria, referred questions to the Chief Rabbi’s office. “They did not want to rule on the matter themselves, so they sent the question on to us, knowing what the answer would be.”

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

  281. R’ J.,

    Thank you for refining the PVS question, which requires me to refine my answer. Even in a case of a polio patient with PVS, I think we can explain why the patient is alive according to HaRav HaGa’on RMDT: since PVS is a potentially reversible condition (as I gather from the Wikipedia entry on PVS), therefore the patient is not dead. Wikipedia reports that some patients awaken from PVS after many years. By contradistinction, it is only in the case of brain death that we know with certainty that consciousness and breathing have ceased irreversibly. No patient has ever awoken from brain death [-at least not when diagnosed based on the rigorous protocol that officially defines brain death. N.B. in his 2006 lecture on the subject (11:20-12:30 into the recording) RHS remarks that there are at least 150 different protocols among hospitals around the world as to how to diagnose brain death and so there is no actual “official” brain death definition, and thus no certainty that “brain death” even means brain death.
    http://www.yutorah.org/lectures/lecture.cfm/716089/Rabbi_Hershel_Schachter/Time_of_Death:_Cardiac_Death_in_Jewish_Law

    However, HaRav HaGa’on RHS does not possess a medical degree (nor does he claim to do so), and so I will assume that the expert physicians who work in hospitals on a daily basis always know how to diagnose brain death with certainty.)

    Regarding the knowledge of circulation in the times of Chazal, I have found the following discussion in “Medicine’s 10 Greatest Discoveries” co-authored by Meyer Friedman, MD, and Gerald W. Friedland, MD (Yale University Press, 1998). In the second chapter, entitled “William Harvey and the Circulation of Blood”, Friedman and Friedland write as follows (commencing on p. 18):

    “Thousands of years before the Englishman William Harvey was born, Egyptians, Greeks, and Romans not only were aware of their beating heart but attributed it to the dominant role in their spiritual and emotional activities. They believed that if humans possessed a soul, it resided in the reddish mass that pounded perpetually in one’s chest. But they never troubled to find out what the beating was all about, even though they recognized that once the beating stopped, life would stop – and the soul residing in that beating heart would vanish.

    “Further, no Egyptian, Greek or Roman understood what relation if any a person’s blood had to this pulsating organ the size of a hand. Their essential ignorance of the functions of both the heart and the blood sprang from their failure to dissect a still-living animal [sic – and with good reason, to avoid tza’ar ba’alei chaim (S. Spira’s comment)]. They had never directly observed the contractile and sequential movements of a living heart and the course of the blood in both veins and arteries. Their only knowledge of the heart and blood vessels derived from inspection of the dissected organs and tissues of human corpses. Unfortunately, the arteries of a corpse never contain blood, because when the heart ceases to beat and eject blood into the arteries, the latter contract and push all their blood into the veins.

    “Thus, the Egyptian, Greek and Roman ancients, seeing no blood in the arteries of their dissected corpses, assumed that such vessels during life contained only air. Since the veins of these corpses always bulged with blood, particularly the veins entering and leaving the liver, early physicians concluded that all blood was made by this organ, which then furnished its blood, via the veins, to the other organs of the body. Recognizing that the heart must play some role in the body’s economy, they postulated that it imparted a “vital spirit” to the blood entering and leaving the two chambers, or ventricles. They did not know exactly how blood entered the heart, how it traveled from the right to the left ventricle, or where it went after leaving the heart.

    In the middle of the second century of our era [sic – Jews do not count time this way (S. Spira’s comment)], the Greek physician Galen made a revolutionary discovery. He observed that the right side (or right auricle) of the heart received blood from the large veins emptying into it, and that this blood was then ejected by the right ventricle into the lungs via the pulmonary artery. He further observed that the lungs drained this blood into the left side of the heart, which in turn pumped it into the aorta, the major blood vessel leaving the left ventricle.

    “Galen made two other cardiovascular discoveries of transcendent importance. He recognized that the heart was essentially a mass of muscles whose contraction pumped blood to and through the lungs to the left side of the heart, which in turn pumped into the aorta. In short, he recognized what the heart was: a pump.

    “His second great discovery was that, contrary to the belief of his ancient Greek and Roman forebears, arteries did not carry air; they carried blood…

    …Physicians for more than a thousand years [after Galen] believed that his descriptions depicted the cardiovascular functions of an animal, not of a person. As a consequence, these most important observations of all the hundreds of medical phenomena described by Galen in his voluminous writings were not accepted as applicable to the human heart or its blood vessels. Galen erred, moreover, in continuing to believe, as had his Greek predecessors, that the liver not only formed the body’s blood, it also pumped it to the rest of the body.

    So, for fourteen centuries after his death, although Eurpoean physicians scrupulously accepted every one of Galen’s other observations and concepts, the structure and functions of the heart, arteries, and veins continued to be matters of fantasy – precisely as they had been prior to Galen’s discoveries. His observations were not lost; they remained securely, if obscurely, entrenched in his surviving writings.

    They were rediscovered in the middle of the sixteenth century by the Michael Servetus, a Spanish physician…[whose information was later elaborated upon by William Harvey.”

    [S. Spira’s conclusion: According to the above text, in the time of Chazal, there appears to have been a vague appreciation of the fact that blood moves in the human body. The function of the arteries was totally misunderstood by all scientists other than Galen, but the function of veins as transporting blood was known (albeit in a flawed manner). I think this (maybe?) serves to support RHS’s assumption that Chazal were aware of the motion of blood through the body.]

  282. R Doron Beckerman in response to
    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis
    said
    what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.

    I am curious – what is it you see as defamatory in this statement? restating it just by reordering, for your society (israeli haredi), the only intellectual discipline that is valued is halachic analysis, and abstract ethical thought (eg, in this context, one that is not linked to an explicit halachic analysis) is not part of the decision making process. This seems a fair statement of the values in which Israeil haredi society actually revels in – and criticizes others for incorporating other values or other discipliness. this is part of the thrust of the aguda statement (the basis for this thread) as well as the main thrust of the Hirhurim post of the lecture by Rav Willig arguing that ethics has no meaning outside of halacha (actually, he is even stronger..)

  283. R. Shalom – the fact that they were aware of this doesn’t mean that they thought it had anything to do with the heart, or with the definition of life.

  284. Doron Beckerman

    Dr. Shinnar,

    I have no wish to debate Chardal on this, although I am quite certain he will respond, but I will not.

    1) I do not consider myself part of Israeli Charedi society. There are elements of it I greatly respect, and one could more or less fairly say I chose it as my “major”, in Joel Rich parlance, and elements I am quite critical of, and very upset about. See R’ Slifkin’s latest post on Olam Hafuch for a “shining” example.
    2) There are differences between being part of a stripe of Charedi society in a functional, vs. ideological, vs. sociological sense. I am certainly 1, on most issues, but far from all, 2, almost not at all 3, and vehemently opposed to attempts at turning what should be 3 issues into 2 issues, v’hameivin yavin.
    3) I am not talking about defamation.
    4) I cannot imagine how one cannot see at least three MAJOR differences between my statement and Chardal’s prejudiced “rephrase”. “Shy away”, “who lives and who dies”, “stated to be” are sharply distinguished from “abstract ethical thought not being part of my decision making process”. Fitting my statement into that broader perspective is red, raw bigotry and prejudice.

    There’s so much more to say to Chardal’ substantive points, but I am not engaging him in discussion. Anything I say will probably turn into a rant about how Charedim are scum, which is unfortunately part of Chardal’s thought process.

  285. Doron Beckerman

    “Chose it as my major” – I mean broader Charedi society, not Israeli.

  286. Just to respond. I do not think that Chareidim are scum.

    Some are as are some people from any society. I do think that the the position of don’t donate/receive is a scummy one. Although many non-scummy people have scummy opinions about one thing or another.

    Further, if you wish to distance yourself from chareidi society ideologically then yashar koach. But it is not about you. I was simply responding to the attempt to use non-analogous ethical scenarios from the gemara and shu”ts to justify the participation in a medical system that according to your own shita is wholesale murder for organs. In fact, I don’t see how, if taking organs from BSD patients is both murder and ok … then why not harvest them from chinese criminals – after all, if you don’t get their organs, someone else will!

    It seems that not everyone sees my comments as bigoted, they were simply not meant that way. But I have noticed more than one time on this thread and others of its kind that the moment someone has strong criticisms or words for mainstream chareidi opinions, especially if they are espoused by the gedoilim, then the response is often to accuse the critic of bias, biggotry, or even antisemitism. It is the unfortunatly a tactic that smells more of desperation than anything else.

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