As this symposium closes, I offer the following reflection on what I've learned from both behind the scenes and in front. If the medical facts are sometimes unclear, even less obvious is how different thinkers relate to them. In a subject so widely examined, which countless articles and lectures have discussed, the lack of dialogue between parties is both surprising and confusing. While one may claim that a medical fact disproves another's approach, the other may see the question as so irrelevant as unworthy of discussion. One claims the other mistakes science while the other states that he was simply misunderstood. This symposium was not a dialogue. Such a conversation is extremely desirable. Until that happens, the warnings offered by many participants to proceed with respect and caution are worth heeding. It seems to me that all positions in this discussion have both medicine and halacha on their side, although some more obvious than others. Even if one is ultimately proved right, the other deserves respect and a fair hearing.

Symposium on the Ethics of Brain Death and Organ Donation: X

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The End

(see prior posts intro, I, II, III, IV, V, VI, VII, VIII, IX)

Rabbi Gil Student

As this symposium closes, I offer the following reflection on what I’ve learned from both behind the scenes and in front. If the medical facts are sometimes unclear, even less obvious is how different thinkers relate to them. In a subject so widely examined, which countless articles and lectures have discussed, the lack of dialogue between parties is both surprising and confusing. While one may claim that a medical fact disproves another’s approach, the other may see the question as so irrelevant as unworthy of discussion. One claims the other mistakes science while the other states that he was simply misunderstood.

This symposium was not a dialogue. Such a conversation is extremely desirable. Until that happens, the warnings offered by many participants to proceed with respect and caution are worth heeding. It seems to me that all positions in this discussion have both medicine and halacha on their side, although some more obvious than others. Even if one is ultimately proved right, the other deserves respect and a fair hearing.

Until we are able to listen to each other, we will never be able to talk. We did not solve this dilemma here but we can at least leave knowing where the problem lies.

I thank all the writers for their time and generosity, the commenters for their enthusiasm and contributions, and the silent readers for their interest. I have received so much positive feedback that I plan on conducting other symposia over the coming months on different topics.

Allow me to close by pointing to additional resources. The HODS website contains a plethora of relevant material, although understandably only that for which they could obtain permission: link. Rabbi Moshe Tendler’s book The Responsa of Rav Moshe Feinstein: Translation and Commentary: Care of the Critically Ill and Rabbi J. David Bleich’s book Time of Death in Jewish Law are important resources, and both are available now at the SOY Seforim Sale. YUTorah.org contains a number of excellent lectures on this subject. Today I listened to Rabbi David Shabtai, MD’s excellent presentation: link. Rabbi Howard Apfel, MD has an ongoing series of lectures on this subject: I, II, III, IV, V. Lectures by Rabbi Hershel Schachter (I, II, III), Rabbi J. David Bleich (I, II), Rabbi Moshe Tendler (I, II), Rabbi Eddie Reichman, MD (I, II) and many others are available there. The journal Tradition also has a number of articles on this subject: link (search for “brain death”).

About Aaron Glatt

142 comments

  1. “Until we are able to listen to each other, we will never be able to talk.”

    I agree. There were 3 major discussions overlapping and weaving among all the multiple Hirurim blog threads (before and during the Symposium):

    1. The long-standing halachic debate itself (i.e. is Brain-Stem Death = Halachic Death?)
    2. Halacha vs. Morality (i.e. a restrictive position regarding donating organs and a permissive position regarding receiving organs)
    3. The integrity of the RCA Va’ad Halacha’s paper to its stated objective of “an unfettered search for the truth”

    The big gap is that the Symposium posts, themselves, failed to substantively address discussions 2 & 3. And it is these that are the substance of the dissent to the RCA Va’ad Halacha paper.

    Until the RCA Va’ad Halacha, or their informal spokespeople seriously and respectfully listen to this dissent, a meaningful discussion will not have happened.

  2. R’ IH,
    Yi’yasher kochaka for your comprehensive analysis. At the same time, in light of my comment on Prof. Resnicoff’s article at 7:42 p.m. tonight, I believe the RCA can be proud of its paper in terms of its general conclusion, even if there are outstanding specific mistakes that must be corrected.

  3. Now that the symposium is officially closed, can we please have R. Bush’s response.

  4. thanks to R. Gil for hosting, and all the work he put in getting responses etc. I am sure it wasn’t easy

  5. Thank you R Gil!

  6. Doron Beckerman

    Thank you R’ Gil. I very much appreciate it!

  7. I wrote on VIII :
    Perhaps a just resolution to the ” don’t give/take”discussion would be when a would-be non-BSD receipient receives the phone call that a donor is available, he should ask are there any other organs being transplanted. If yes(as in 85-90% of cases),he should accept if not he should decline .RCA and similar organizations could suggest this.
    -and received two categories of responses

    1)the system doesn’t work that way
    WADR The system could be changed ,correct?

  8. 2)It is still immoral
    The proposal would seem eminently(DARKEI SHALOM;VE’HEYISEM NEKI’IM) acceptable to the world.Conscience however laudable shouldn’t get in the way of (others)lives.

  9. Thank you R. Gil – After all is said & done, your blog is the greatest (and probably most responsible) ‘achsanya’ for Torah on the internet. Kudos for providing an inestimable public service.

  10. It seems to me that all positions in this discussion have both medicine and halacha on their side, although some more obvious than others. Even if one is ultimately proved right, the other deserves respect and a fair hearing.
    ==================================================
    I found most interesting the dog that didn’t bark (at least conciously out loud)the meta issue of halachic methodology – how (and are there multiple methodologies?)do we extrapolate (if at all) the fact of a known specific law from a known time articulated in the terminology of that known time (perhaps based on a scientific understanding of a known time) to a new time when technology and science have broadened the possible cases of law application to cases not stated (and perhaps not forseen) by the laws original articulators?

    KT

  11. I wanted to focus on the Rav’s opinion on brain death. This is an important part of the discussion.

    Regarding the Rav’s stance on the issue of brain death, the RCA paper documents that R’ Aharon Soloveitchik and R’ Yitzchak Twersky, the brother and son-in-law of the Rav, wrote a letter stating that the Rav did not accept brain death as the Halachic definition of death. They also reference (fn. 219) a public lecture in which R’ Tendler himself stated that despite a number of conversations he had with the Rav regarding brain death, the Rav never accepted his point of view. In addition, they quote two of the Rav’s grandchildren, R’ Mayer Twersky and R’ Yitzchak Lichtenstein, significant Talmidei Chachamim in their own rights, who say that the Rav told them each of them that the issue of determining death is one that even the Vilna Gaon would not be capable of deciding. (R’ Schachter refers to this quote in B’ikvei Hatzon p.254-255.)
    All of this testimony highlights the difficulty in giving real credence to the Rav’s purported Psak, conveyed to R’ Walfish, at the end of 1983 or (more likely, R’ Walfish said) at the beginning of 1984. R’ Walfish reported that the Rav paskened that brain death is considered death, because R’ Tendler had asserted that the Apnea test was conclusive without any doubt. The Rav is quoted as saying that there was no need to speak to R’ Tendler directly regarding the question. Such statements – in addition to contradicting all the other testimony regarding the Rav’s view – would have lacked the most elementary responsibility and due diligence expected of any Posek, and would have been totally out of character for the Rav in particular:

    – If any Posek would decide an issue based upon a second- hand report regarding the scientific background, despite being aware of the inherent complexity of the issue at hand – would that Psak be considered responsible? Could one imagine a Posek actually declining the opportunity to clarify and verify groundbreaking new information – with someone who was on campus daily! – before issuing a final Psak? And if the Psak in question deals with Dinei Nefashos in its most literal sense, i.e. the stakes of the Psak would determine whether removing organs from multitudes of brain dead patients would be considered murder – could one imagine a Posek deciding “off the cuff” that the issue was suddenly so simple and clear cut, that no further questions or discussion would be needed?
    – The Rav’s family lived and breathed the trepidation that accompanied a Shayla regarding Pikuach Nefesh. Can one imagine the Rav deciding a Shayla of Pikuach Nefesh for an open-ended, uncountable number of future cases, simply because he heard that R’ Tendler was certain about the Apnea test, without even bothering to inquire if R’ Tendler’s view was universally accepted and corroborated by others?!
    – During the time-frame described, the Rav was already suffering from his final illness, and had retreated from much of his public involvements. The illness and the accompanying medications had a profound effect on his intellectual capacities, and the Rav was acutely aware of this. In this compromised state, the Rav would have paskened a Dinei Nefashos issue of this magnitude, without clarification if the R’ Tendler’s view was accepted by other experts or Poskim and without any further discussion?
    – Furthermore, how is it conceivable that the Rav could have issued a Psak of Dinei Nefashos of such gravity and import, and then did not share his ruling with any family or close Talmidim?

    Unfortunately, the claim regarding the Rav’s Psak makes a mockery of Psak Halacha in general, as if a Posek could casually reach a conclusion regarding Dinei Nefashos “on the spot”, in conversation with someone who had no expertise in the subject at hand, without bothering to examine the information and issue independently. As importantly, it constitutes a Bizayon of the Rav himself. The assertion that the Rav paskened based upon second-hand information and declined to investigate the issues further when confronted with an issue with such complexity, with the life and death of so many hanging in the balance, at a time in his life when his abilities had diminished dramatically – diminishes the Rav’s stature and demeans his honor. A Posek rendering a Psak in such a simplistic fashion would be viewed as being possessed of extreme naivete that impeded his ability to appreciate the difficulty and responsibility involved in deciding such an incredibly serious Shayla. Who has the audacity to paint the Rav in such a light?

  12. Yonatan on February 18, 2011 at 5:57 am

    Who has the audacity to paint the Rav in such a light?

    Apparently you.

  13. I asked R. Mayer Twersky about the Rav changing his view. He said that it is “patently absurd,” “nonsense” and a “fabrication”. He said, in addition to his own conversations with the Rav on this subject, that if the Rav had changed his mind on a matter of such conflict that would save lives he would have told people. I guess everyone has to judge on their own but I take R. Mayer Twersky as the final word on the subject. I asked him to get me a copy of his father’s letter and he is going to try.

  14. – If any Posek would decide an issue based upon a second- hand report regarding the scientific background, despite being aware of the inherent complexity of the issue at hand – would that Psak be considered responsible?
    ======================================
    You mean like R’YBs’s famous statement on microphones – apparently he felt that many poskim do it.
    KT

  15. I think IH’s analysis of the symposium hit the nail on the head. Gil should be commended for putting together such a thoughtful symposium on point 1. Unfortunately, points 2 and 3 still need discussion from the RCA and those who support take but don’t give.

    As for the Rav. I think that Yonatan and Gil are absolutely wrong. The evidence as presented against R. Walfish — and I emphasize as presented in the RCA paper and in Gil’s addenda — is flimsy, at best. There are so many unanswered question, which I have noted in comments throughout the symposium and will not repeat here, that to disregard R. Walfish as Yonatan wants to do or to say that R. Twersky is the final word are simply ridiculous. I have a number of complaints against the RCA paper, but it’s treatment of the Rav’s position –or rather, it’s mistreatment of that position and of R. Walfish — was the most egregious and irresponsible, and for that alone it deserves to be withdrawn and rewritten.

  16. 2. Halacha vs. Morality (i.e. a restrictive position regarding donating organs and a permissive position regarding receiving organs)
    ======================================
    I suppose it depends on how one views “halacha” – I think of it in terms of the R’YBS statement that it’s a floor not a ceiling i.e. it sets the limits in which one can operate, thus saying that “halacha” might allow x, but kdoshim tihiyu tells me not to do X is my understanding.
    KT

  17. To Joseph Kaplan,

    The facts as I presented are perfectly clear. The overwhelming evidence is that ALL of the Rav’s closest talmidim and relatives (who have taken a public stand on this issue)- R’ Yitzchak Twesky, R’ Ahron Soloveitchik, and ybl”ch R’ Schachter, R’ Mayer Twersky, R’ Y. Lichtenstein (as well as other Rabbis and physicians who heard the reference to the Gra) present his view one way. R’ Walfish is in a minority that is much less than a miut she’eino matzui.

    The points about the Rav’s general approach to psak are irrefutable as well.

    Anyone who has ever heard R’ Mayer Twersky speak knows how precise he is in his choice of language. His comments carry tremendous weight.

    Your use of the term ‘ridiculous’ is thus misplaced.

    Yonatan

  18. R’ Yonatan,

    Yi’yasher kochakha on your important cross-examination at 5:57 a.m. today of R. Binyamin Walfish’s testimony regarding RYBS. I agree with your enthusiasm to cross-examine his testimony (as all testimony in Halakhah needs derishah vachakirah, since “Chotamo Shel HaKadosh Barukh Hu Emet”).

    I also agree with your implied conclusion that a BSD patient should be treated as potentially alive, though I hasten to add three important caveats for public education reasons which should be incorporated into a revised/improved/substitute/atonement draft of the RCA paper (apropos R’ IH’s excellent call for a revision in his comment at 10:19 p.m. last night):

    (a) We must admit for purposes of intellectual honesty in interpreting the Chatam Sofer that *most probably* a BSD patient is dead (what RSZA calls a “safek ha-karov livadai” – Shulchan Shelomoh, Erkei Refu’ah II, p. 40) and that our heroic efforts to maintain the BSD patient on the machine – while absolutely obligatory and overriding Shabbat – represent an application of the Halakhah to champion the slight possibility of life (“vachai bahem vilo she’yamut bahem” as per Yoma 85b) in a case where there is a very large possibility that the patient as already dead (as per Shulchan Arukh Orach Chaim 329:4). This intellectual honesty doesn’t change the practical Halakhah of heroically extending the BSD patient’s existence, but it does gives richly deserved kavod to those Gedolim like RMF and yibadel lichaim HaRav HaGa’on RMDT who rule that a BSD patient is dead. Giving kavod to Gedolim is an obligation (just like the safek piku’ach nefesh of the BSD patient is an obligation), as per the derashah “Et Hashem E-lo(k)ekha Tira – Lirabot talmidei chakhamim” in Pesachim 22b.

    (b) We must admit for purposes of intellectual honesty that until RSZA entered the scene in 1991, and possibly even until HaRav HaGa’on RJDB finally presented a coherent picture to the public of what a human being is in his Tradition article of Summer 2008, the normative Halakhah authoritatively followed RMF & RMDT’s interpretation of Chatam Sofer that brain death=death (just like for a long time the normative Halakhah in Rabbi Eliezer’s town was that preparatory steps to the circumcision override Shabbat, as per the gemara in Shabbat 130a. This reality only changed when people realized that Rabbi Akiva had a strong countervailing point to Rabbi Eliezer, and possibly only when the Sanhedrin officially voted like Rabbi Akiva).

    Until 1991 (and arguably 2008), there was no credible opposition to RMF & RMDT’s interpretation of Chatam Sofer. Yes, of course, it was already publicized in the JAMA of Nov. 2, 1979 (“Brain Death – An Opposing Viewpoint” by Paul A Byrne et al, on pp. 1985-1990) that RJDB was challenging RMF’s interpretation of Chatam Sofer. [Byrne et al call RJDB’s challenge to RMF “a brief but sharply reasoned and well documented demonstration”.] But, soon thereafter, RMDT effectively responded on behalf of RMF in the JAMA of May 9, 1980 (“In Response to an Opposing View on Brain Death”, on pp. 1808-1809.) RMDT writes: “Contrary to the statement by Byrne and his colleagues, the position stated in our article is fully accurate. Clinical signs of death in association with total cessation of independent respiration is death according to Torah law. The reliance of traditional Torah law on the laws of science to make its rulings is the result of the Jewish definition of monotheism that declares total identity between the G-d that gave us the laws of nature and the G-d that gave us His ethical principles of Mount Sinai”. Thus, RMF was aware of RJDB’s opposition, but stood firm in his ruling (as was certainly RMF’s prerogative). In 1980, RJDB was not yet of sufficient stature to overrule RMF. RSZA, by contradistinction, was indeed of sufficient stature to overturn RMF’s interpretation of Chatam Sofer in 1991 (-and, by 2008, RJDB had likewise grown in stature.) Thus, I think that in our post-2008 era, the principle of “safek nefashot lihakel” (as per the gemara in Shabbat 129a, at least as interpreted by Encyclopedia Talmudit IX, p. 267), seemingly requires desecrating Shabbat to prolong the existence of the BSD patient.

    (c) Regarding the substance of R. Binyamin Walfish’s testimony. Of course, I never enjoyed the awesome privilege to meet RYBS, so I’m not one to make definitive assessments. However, based on the theoretical principle bespoken by Tosafot to Yevamot 77a, it seems to me we are obligated to accept R. Binyamin Walfish’s testimony. RYBS evidently realized (and I agree with him) that RMDT is a Gavra Rabbah who can be trusted on all dinei nefashot. Perhaps RYBS was even aware that RMDT had become the official spokesperson for RMF in JAMA (as documented in caveat b above), and so RYBS had full confidence in RMDT’s capacity to adjudicate the question. So I think the RCA acted in a proper, responsible and praiseworthy manner in 1991 (based on the reported rulings of RMF and RYBS) in interpreting Chatam Sofer to equate brain death with death. But this was then overturned by RSZA’s countervailing interpretation of Chatam Sofer, as well as by RJDB’s subsequent article in 2008. Thus, I think the RCA acted in a proper, responsible and praiseworthy manner in 2010 in publishing a paper that (for all intents and purposes) declared that a brain dead patient should be treated as possibly alive. There are definitely outstanding mistakes in the 2010 paper that must be corrected, but the basic gist of the 2010 paper appears cogent.

    Hence I think that the RCA has consistently kept its finger on the dynamic “pulse” of the Halakhah vis-a-vis brain death (no pun intended), and has approached the subject of brain death with halakhic accuracy, both in 1991 as well as 2010.

    I also think we should highlight the enormous Kiddush Hashem that was generated by HaRav HaGa’on RMDT’s published comments in JAMA of 1980 (documented above). RMDT has truly educated humanity in the monotheism of the Torah, and thereby has helped bring to fruition the prophecy that “Vihayah Hashem li-Melekh al kol ha’aretz, bayom hahu yihiyeh Hashem Echad ushemo Echad”.

  19. Lawrence Kaplan

    Yonatan: WADR, R. Meir Twersky’s representation of his grandfather’s view about woman’s tefllah groups was less then precise.

    We have still not seen the letter from RYT and RAS. For the RCA paper to refer to this letter when it is still not available and its contents unclear was, as my brother pointed out, only one of its many faults in its presentation of the Rav’s position.

  20. Dr. Kaplan: You have previously written on right wing revisionism regarding the Rav. In this case, we are witnessing left wing revisionism which the Rav’s own family opposed.

    I, too, call for publicizing the letter by Rav Ahron and Prof. Twersky.

  21. Lawrence Kaplan

    Gil: FTR, my article criticized both right AND left-wing revisionism about the Rav.

    I fail to see any revisionism here. Neithher my brother nor I at least have claimed that R. Walfish’s view should be accepted. We criticized the RCA paer for its shoddy reserch and investigation and biased presentation. Moreover, R. Walfish may have misunderstood the Rav’s views, but I do not believe he had any ideological motivation for so doing.

  22. Sorry I did not mean you or your brother. I meant HODS proclaiming that the Rav accepted brain death.

  23. With the kind permission of our Rosh Yeshiva R. Student, I do not think that HaRav HaGa’on R. Mayer Twersky (or any Torah giant living in the post-Shulchan Arukh era) possesses the capacity to contradict Tosafot to Yevamot 77a. If a talmid chakham like R. Binyamin Walfish testifies that he heard HaRav HaGa’on RYBS rule like HaRav HaGa’on RMDT, then according to Tosafot that’s presumably the testimony that the Oral Torah directs us to accept. Hence, I believe the proclamation of HODS regarding RYBS is accurate. Nevertheless, for independent reasons (i.e. the 1991-1995 responsa of RSZA and the 2008 article of RJDB), I believe we must treat a BSD patient as doubtfully alive as a matter of safek piku’ach nefesh (even though there is a “safek ha-karov livadai” that the patient may be dead), and I hope HODS will announce this conclusion, as well (-perhaps after a face-to-face conference of the Gedolim will verify this conclusion; maybe our Rosh Yeshiva R. Student will be selected as the moderator for such a conference!) It’s not a contradiction: the same Torah which commands us in the mitzvah of safek piku’ach nefesh to heroically maintain the existence of BSD patients also commands us to diligently honour distinguished talmidei chakhamim like R. Binyamin Walfish. [By the same token, I also honour R. Mayer Twersky and R. Gil Student, of course, but R. Mayer Twersky and R. Gil Student must abide by the rules of testimony established by the Oral Torah, rules which seemingly vindicate R. Binyamin Walfish.]

    I think a clarification of this issue may emerge from HaRav HaGa’on RHS’s comments in the original 1988 symposium.
    http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II
    There, RHS says (at 17:50 into the recording) that

    “many years ago… in the friedeke doirois [-the earlier times] brain death didn’t even mean what brain death meant in 1968… that was koidem beri’as ha’oilam then [-an earlier stage in medical history (stated whimsically)]…”

    RYBS said that it might be permissible to kill a brain dead patient, but that we don’t have sufficient mekorot to pasken this way. So, I think this is what R. Mayer Twersky and others mean when they say they have a tradition from RYBS that it’s not clear what the status of brain death is. They were referring to RYBS’s pronouncements before 1983. But in 1983-1984, when brain death was defined with much greater precision than ever before, it is possible that RYBS would agree with RMF & RMDT’s interpretation of Chatam Sofer. As such, RYBS never changed his position; he simply applied the same intepretation of Chatam Sofer to different circumstances.

    Again, this seemingly has no practical implication halakhah lima’aseh… RSZA and RJDB have since refuted the RMF/RYBS approach to Chatam Sofer. “Safek nefashot lehakel”, as per the gemara in Shabbat 129a, to seemingly require desecration of Shabbat to heroically maintain the BSD patient.

  24. It wasn’t on the issue of brain death, but on some other halachic issues my own rav has told me that he personally heard Rav Solveitchik pasken differently from the way he paskened to some of his more prominent students. The Rav was known to pasken differently at different times to different people, and to change his mind. It is entirely possible that everyone who has testified as to what they heard from The Rav on brain death is telling the truth.

  25. Larry Kaplan-I have read your article on revisionism and RYBS on a number of occasions. Please post a PDF copy of the same or a direct quote in which you state that revisionism, both LW and RW, is wrong, as well as an example of LW revisionism that you cite therein.

  26. “The facts as I presented are perfectly clear. The overwhelming evidence…”

    It’s not clear at all, and much od the supposed “evidence” has not been presented or even asked for. Just a few examples. How can a finder of facts possibly come to an unbiased opinion of whether a reported conversation was accurate without speaking to and questioning the person who was a party to the conversation? When did the grandchildren speak to the Rav and what was his physical and mental condition at the time? What does the R. Ahron/Prof. Twersky letter say? What does the letter R. Walfish sent after speaking to the Rav say? When was it sent (so we can more precisely pin down when R. Walfish spoke to the Rav, since timing is important)? Did R. walfish speak to anyone shortly after he met with the Rav and discuss the conversation? And there are plenty more that any investigator/lawyer/fact finder would want to ask before drawing any conclusion..

    I emphasize: I do not know who is right about the Rav’s position on this issue. What I do know — and this is an area in which I have some expertise — is that the record before us as provided in the RCA report is completely insufficient to make any determination. I do not retract the word “ridiculous.” It is ridiculous to make any determination, one way or the other, on the basis of the RCA report. If only for this issue (and there are more), it must be withdrawn and revised.

    Gil, this is not revisionism in any way. I’d love to know what the Rav’s position was. Think what you like about R. Twersky and/or R. Walfish, we don’t have nearly enough information to decide. You want to decide on the basis of authority: if R. Twersky said so it’s good enough for me. Well, it’s not good enough for me, and the shoddy job the Halacha Committee did on this point is also not good enough for me and should not be good enough for anyone who really wants to know the Rav’s position.

  27. I hope some tachlis comes out of this, e.g., a Second Edition of the RCA Report; and a new RCA health care proxy, (a) taking into account the possibility of “heroic suicide”, i.e., if I am diagnosed with BSD, I agree to donate my organs, (b) adopting the R Tendler/Dr. Emmanuel-Harvard model, (c) avoidance of tiruf ha’das, by eliminating post-mortem decision-making.

    And, once again, for the record, in case you missed this comment the first time, I strongly believe in organ donation. I have an old Casio I don’t use much, and maybe someday I’ll donate it.

  28. For a further historical appreciation of RJDB’s original challenge to RMF regarding the Chatam Sofer, I recommend listening to the earliest ever recorded oral lecture of RJDB, from Nov. 16, 1982, at
    http://www.yutorah.org/lectures/lecture.cfm/751445/Rabbi_Dr._J._David_Bleich/Smoking_and_Shomer_Psa%27im
    In this lecture, RJDB addresses RMF’s responsum which permits cigarette smoking. RJDB affirms that today – on Nov. 6, 1982 – the responsum of RMF is still valid, although he anticipates that the societal perceptions toward cigarette smoking may change in the the coming 10-20 years. Quite significantly, at 11:00 into the lecture, RJDB says as follows:

    “Or better, I can quote the Iggeros Moisheh. Rav Moisheh wrote the teshuvah, he published it, and hasn’t withdrawn it (laugh), in fact he’s reaffirmed it very recently in another teshuvah dealing with smoking in the beis midrash.”

    In other words, RJDB was aware on Nov. 6, 1982 that RMF was alive and fully functioning, and capable of delivering authoritative halakhic rulings. And, I (S. Spira) am assuming that RJDB was aware as he uttered these words (on Nov. 6, 1982), that RMF was in a state of disagreement with him how to interpret the Chatam Sofer regarding the definition of death [as per the exchange between Byrne et al. (acting as the designated proxy of RJDB) and RMDT in JAMA of 1979 and 1980, recorded in my comment earlier today at 10:28 a.m.]

  29. And thanks to R Gil Student, and the ten contributors, who made this Symposium possible. And thanks to all the commentators, and in particular, the amazing R Shalom Spira, quantitatively and qualitatively a fountain of fascinating Torah and scientific information.

  30. Lawrence Kaplan

    Steve: My article in Judaism, “Revisionism and the Rav” is easily available online. In it I criticze both Rabbis Irving Greenberg and David Hartman for what I term there left-wing revisionism.

  31. If a talmid chakham like R. Binyamin Walfish testifies that he heard HaRav HaGa’on RYBS rule like HaRav HaGa’on RMDT, then according to Tosafot that’s presumably the testimony that the Oral Torah directs us to accept.

    Unless he is נוגע בדבר. For example:

    [Examples omitted – editor]

    See:
    שו”ת חכם צבי ליקוטי תשובות סימן קיד
    לא צייתינן ליה היכי דאמר מילתא דאית ליה הנאה מיניה או שמץ נקימה ביה

    (Even the great Rav Yehudah would not be believed regarding Shmuel’s position if these were the circumstances.]

  32. I enjoyed this symposium a lot and learned a great deal from the posts and the comments (to be honest, more from the comments than the posts). Yishar Koach to you R’ Gil on organizing this and I look forward to similar ones in the future.

    However, I differ with your conclusion remarks. I think that one who says that a BSD patient is alive as any other person, is not being honest. The most one can say is that BSD is safek gosess. For this reason I treat the opinion of R. Y. Weiner as מגלה פנים בתורה שלא כהלכה, and included in this is his remark that: “In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat”. Such an opinion is not part of halachah and to my understanding never was.

  33. Yasher koach to R.Gil for organizing the symposium, and the obvious tremendous effort it entailed.

  34. “The illness and the accompanying medications had a profound effect on his intellectual capacities, and the Rav was acutely aware of this. In this compromised state, the Rav would have paskened a Dinei Nefashos issue of this magnitude,”

    Is it more acceptable to accuse R’ Walfish of lying, than RYBS of erring?

    “The points about the Rav’s general approach to psak are irrefutable as well.”

    As Charlie Hall mentioned, the Rav’s general approach was to change his mind and pasken accordingly.

    “Is it possible that the Executive Director of the RCA has a political axe to grind?”

    As if one side of the debate has an “axe to grind”, and the other side is purely objective. Isn’t there a question of emunat hachamim when you make accusations of this sort about rabbis’ motives?

  35. As if one side of the debate has an “axe to grind”, and the other side is purely objective.

    What axe do all of RYBS’ family members have to grind?

    Isn’t there a question of emunat hachamim when you make accusations of this sort about rabbis’ motives?

    Not in the face of the evidence that there is no way RYBS would have or could have said such a thing.
    Note that this isn’t accusing Rabbi Walfish of lying. Only of bias, which may have colored his understanding, which is sufficient reason, על פי דין, to not accept his uncorroborated testimony as authoritative.

  36. “Unless he is נוגע בדבר. For example… [edited]”

    Do you have ANY factual basis for making these outrageous allegations. if so, put up. If not, shut up. And if you try to put up Meir, put your full name behind your attack on a respected Jewish leader. Or a you a noge’ah bedavar in some way? Can’t know without your name.

  37. R’ Elliot Pasik,
    Thank you for your exceptionally kind words. Vihamevarekh yitbarekh. Admittedly, I contributed the least of anyone in this discussion. I am grateful to HKB”H to have enjoyed the privilege to discuss Torah with yourself and other talmidei chakhamim on this website. Special thanks to R’ Shachar Ha’amim for bringing to light the valuable treasury of knowledge in Dr. Nachum Rakover’s book “Mesirut Nefesh”. Yi’yasher kochakhem.

    R’ Meir,
    Thank you very much for illuminating my eyes with the reference to Chakham Zvi (-who has of course coincidentally been cited in this discussion for two others of his responsa: the heartless chicken, and the golem.) I checked in the manuscripts of Chakham Zvi available on Hebrew Books but couldn’t locate this particular responsum regarding credibility of testimony. Could you post the responsum? Thank you. I agree with R’ Joseph Kaplan that we assume a chezkat kashrut in all witnesses, but I would also be interested to see the Chakham Zvi inside.

  38. If anyone can send me an article,letter, psak or audio tape authored by the Rav rejecting brain death, I would like to post that on the HODS site.

    If anyone knows of someone who spoke to the Rav and heard him say he rejects brain death or that he interpreted Yoma as heart beat and not respiration, please let me know his name and contact information so I may video interview him.

    I don’t think it is worthwhile for me to spend time and money interviewing people who say “they can’t imagine the Rov accepted BSD” or that “they never heard the Rov accept brain death.”

  39. Doron Beckerman

    Mr. Berman,

    There are people who heard him say that he does not think the Vilna Gaon had the shoulders to pasken this question. That is enough to call into question a subsequent change of heart to the effect that he thought Rabbi Tendler Shlit”a could.

  40. According to the RCA Vaad Halakha paper, both R. Mayer Twersky and R. Yitchak Lichtenstein spoke with the Rav about this. R. Twersky confirmed it to me last week, although I doubt he would agree to be interviewed by an organization like HODS.

  41. Doron Beckerman

    Regarding Rabbi Walfish’s testimony. I viewed his HODS interview. Questions remain –

    a) Did RYBS specifically state that irreversible cessation of autonomous breathing is the absolute halachic definition of death – or is this Rabbi Walfish’s assumption regarding his position? This is not quite clear from the interview.

    b) Was RYBS told specifically that the purpose of this question was to determine Pennsylvania law regarding organ transplantation?

    c) Was RYBS given a copy of Rabbi Tendler’s suggested terminology for the Pennsylvania law to approve?

  42. “Regarding Rabbi Walfish’s testimony. I viewed his HODS interview. Questions remain.”

    You’re absolutely right. And, indeed, there are questions other than the ones you ask that remain. That’s why it was UNFORGIVABLE for the VH not to speak directly to R. Walfish before they published what they did about the Rav. Your questions just highlight how shoddy their research on this important issue was, and shoddy research results in unsupportable and unconvincing conclusions.

    “According to the RCA Vaad Halakha paper, both R. Mayer Twersky and R. Yitchak Lichtenstein spoke with the Rav about this.”

    It does. But it tells us NOTHING about those conversations including WHEN they took place which those who attack R. Walfish say is so important. And as I have commented on before, there are additional questions that any decent fact finder would want to ask the grandchildren (and R. Walfish) in order to come to a conclusion when presented with conflicting evidence. But there is no evidence either from the RCA paper or Gil’s posts on his discussions with R. Twersky that the grandchildren were asked, much less answered, these questions.

    Gil, if you think, based on the RCA paper and your conversations with R. Twersky, you know the Rav’s position you’re fooling yourself, unless your reasoning is “if R. Twersky said so it must be true.” Maybe good enough for you but not good enough for those who want proof and not simply authority.

  43. Three things regarding the Rav ztl’s positiion are troubling.

    First, despite his greatness, whatever opinion he gave, was over 25 years ago. Has anything changed that might change his POV one way or the other?

    Second, does anyone know why he held any particular POV? What was his position on some of the fundamental issues that underlie the makhloket? For example, was his position based on some fundamental halakhic principle or some facts that he assumed/knew/was uncertain about on the nature of BSD?

    Three, If we take everyone at face value, perhaps his position was like RAL’s, quoted by R. Broyde. That would explain giving different answers in differing circumstances, to different people.

  44. ‘I DOUBT HE WOULD AGREE TO BE INTERVIEWED BY AN ORGANIZATION LIKE HODS”.PLEASE EXPLAIN.
    I am under the impression that HODS accepts information from pro and con BSD.

  45. Doron Beckerman,
    I would interpret what the Rav said about the Vilna Gaon as just stating the seriousness of the psak,pro or con BSD.
    Of course the Vilna Gaon did not have to posek this question of our time.But the poskim of today are required to pasken.

  46. That doesn’t mean he will want to cooperate with an organization that has for years promoted what he considers a distortion of his grandfather’s position on a life-and-death issue. He would also presumably ask some of his colleagues about the organization before associating his name with it, and I doubt he would hear much praise given recent statements coming from the organization.

  47. The way I heard it, the Rav was saying that we lack the Torah knowledge to pasken on this and not even the Vilna Gaon had enough Otrah knowledge to answer it.

  48. “It seems to me that all positions in this discussion have both medicine and halacha on their side, although some more obvious than others.”

    That is true other than for the “yes to receive, no to donate”
    There is simply no way to justify that position in the context of normative halachic reasoning nor medically in terms of the reality of how organ transplants system works in real life.

    Thanks for the great symposium!!
    I think the onnly thing lacking was at least one perspective on the Israeli situation where you already have a law and a medical system that takes Halachih thinking into account and yet faces a severe shortage of organ donors – so severe that Israel has not been admitted into European organ transplant networks.
    It would have been nice to have at least one knowledgeable Israel medical/rabbinical practinioner participate

  49. R. Gil- that is a comment unbecoming you. HODS has contributed greatly to the available information on the topic, both pro and con, and has helped encourage donation outside of the brain death context. Many rabbonim think very highly of HODS. Regarding most every organization you can find those who are both in favor and against, it depends on whether they agree with what the organization does.

  50. the rav was not a chasidic rebbe; if he said even the vilna gaon could not pasken, he would have likely explained why, to someone. absent a detailed explanation, it has no operative meaning.

  51. Dr. Stadlan: My opinion differs somewhat but that is how I think he will react. He may ask me for my opinion, in which case I will tell him.

  52. first a yasherkoiach to r gil for organizing this symposium, i’m sure it was a lot of work. but now that it’s done, it’s time to chalk up the winners and losers – or at least distribute kudos to the cogent contributors. unfortunately from my perspective there weren’t too many of the latter. for my money the best single presentation was the just-the-facts-mam description of the organ donation process by Prof Prager, and let the halokhists make of the facts what they will. i do not understand how, after his description, anyone can now proceed to opine whatever without accounting for the fact of the tight connectivity between donor and recipient. thus the moral issue of a position that allows acceptance of a donation when the donor was murdered needs to be directly addressed by such mattirim. and i’ve not seen a single one that does as yet. the only response i’ve seen to the moral objection are belligerence from such as r.gil) some of the responses seemed just a bit loopy and completely off topic. r. herring’s was a particularly useless off topic diatribe meant to counter those who used “incendiary language” to accuse the RCA vaad’s document of being one sided, replete with errors, and supportive of immoral positions. well yes, that’s precisely what they’ve been accused of. is the very fact of the accusation incendiary or is it the substance of the accusation with which r. herring takes issue. r herring is never quite clear about that but no matter. it was a wasted opportunity for him to make his own contribution to the symposium substance. for my money the absolute worst (although it was a close call if the metric is taken to be the most useless) was r. shafran’s. r. broyde’s and r. tendler’s were on topic and useful statements of positions. all the rest were quite frankly somewhere within the useless box.

    slightly off topic i’ve been taken aback not a few times by r. gl’s repeated hostile references to HODs, an organization that I frankly never heard of until the current literary fisticuffs. i’ve inferred that r. gil doesn’t approve of berman or the the way they operate or the claims they have made about who said what when or their (implicit) imputations of immorality to the notion of accepting a donation while assuring the act of donation. i have no dawg in this fight and do not know any of the principals – indeed as i mentioned i never heard of them. But it is my perspective, looking from the outside that because of HODs activities quite a few jews, b’nai torah amongst them, are now alive who would otherwise be dead. So whatever the tone of their advocacy they have been busy saving lives. Then I ask myself how many lives has Hirhurim saved in the same period. With that in hand snarky remarks such as “..
    although I doubt he would agree to be interviewed by an organization like HODS” seem in particularly bad taste.

  53. mechy frankel, the one defense of taking organs, for those who would not give, is to rely on on a position like that of RAL who would appear not to have an absolutely definitive position. thus, when its their neck, they are willing to rely on those who define BSD as death halakhically. but if it is not their neck, they adopt a position that does not accept BSD. such a position, while hardly qualification for tzaddik of the year, perhaps can be defended, albeit rather weakly, at best.

    if you take a stronger position, then i agree with rabbi tendler and you, that the only defense is ignorance of what happens.

  54. R’ Mechy Frankel,
    Yi’yasher kochakha; your sagacious points upholding HODS as a completely righteous organization are well taken. I agree; to that effect, last night I left a telephone message on RJDB’s answering machine impressing upon him (-as much as an insignificant disciple as myself can approach the doorstep of a Torah scholar) the recently posted important evidence that HODS presents regarding the position of RMF, because it is imperative that RJDB be apprised of all the available testimony regarding brain death (-particularly the information that refutes RJDB.) The only request for immediate change I have to HODS (-and it is an extremely minor and insignificant one which can surely be easily rectified-) is to digitally alter the recently posted video which possesses a cross in the background, so as to conform with R. Joseph Ber Soloveitchik’s essay “Confrontation”. But, leaving that issue aside, I applaud in HODS in every respect, and its members are tzaddikim gemurim, who have orchestrated a marvelous Kiddush Hashem.

    At the same time, the same way (to its praiseworthy credit) HODS has been occupied saving definite lives, so too has our Rosh Yeshiva R. Student (to his praiseworthy credit) been occupied saving most-probably-extinguished-but-still-doubtfully-existent lives. The information he has disseminated on this website might persuade families to heroically maintain their brain dead loved ones on the machine as a fulfillment of “safek nefashot lihakel” according to Encyclopedia Talmudit’s interpretation (Vol. IX, p. 267) of Shabbat 129a.

    Regarding registration for organs, I agree with you that this is a major question, and the RCA paper (-a beautiful masterpiece as it is-) must be supplemented with a sequel, apropos the points that have been raised in this discussion. [Here, once again, special thanks to HODS for correctly raising these important halakhic issues.] My feeling is that – ultimately (even with all the lomdut of RMF that brain death=death, of RSZA that the Noahide Code empowers the Noahide legislature/judiciary to modify the parameters of homicide, and of R. Moshe Sternbuch that a Beth Din can authorize a person to sacrifice his life to save others), a conference of the Gedolim may simply have to conclude shev vi’al ta’aseh adif on account of “mai chazit” (because there is a cogent counterargument to RMF, to RSZA and to R. Moshe Sternbuch on each of those points). There’s nothing one can do about this except to organize as comprehensive as possible a face-to-face conference of the Gedolim to verify this conclusion. Sometimes Adam I who conquers the world with his impressive scientific and medical prowess prevails; other times Adam II who withdraws into introspection and prayer becomes the dominant approach. This may be the time for Adam II.

  55. the same way (to its praiseworthy credit) HODS has been occupied saving definite lives, so too has our Rosh Yeshiva R. Student (to his praiseworthy credit) been occupied saving most-probably-extinguished-but-still-doubtfully-existent lives.

    If you are using such terminology, then when you fully describe the situation, it emerges as follows:

    the same way that some have been occupied saving definite lives at the expense of most-probably-extinguished-but-still-doubtfully-existent lives, so too have others been occupied saving most-probably-extinguished-but-still-doubtfully-existent lives at the expense of definite lives.

    Putting it that way, I know which I would choose.

  56. (And that’s even without incorporating the fact that according to the recent information about the link between donors and recipients, those who only receive organs are in any case doing so at the expense of most-probably-extinguished-but-still-doubtfully-existent lives!)

  57. I’m not sure why R. Natan feels he has the right to decide which life takes precedence. If it is a life, even if it soon-to-be-extinguished, then I think one of the Ten Commandments has something to say about the subject. I’d prefer to be on their side.

    As to the strong connection, I’m not sure how anyone can deny the strong disconnect that Dr. Prager said applies in the vast majority of cases between a specific recipient and the “murder” of the donor (according to those who don’t hold by brain death). According to Dr. Prager, most recipients do not cause the donor’s “death”. Surely that has halakhic significance.

    R’ Mechy: I understand that my message was easily lost in the comments, but as a believer in Eilu Va-Eilu, I allow for donors to follow their own poskim.

  58. Funny world we live in. If my “life” was [metaphorically] saved by someone who came to my defense when so few did, I doubt I’d have the chutzpah to opine in any manner whatsoever whether his brand of lifesaving is worthwhile.

  59. shachar haamim

    Hirhurim on February 20, 2011 at 3:17 pm
    I’m not sure why R. Natan feels he has the right to decide which life takes precedence. If it is a life, even if it soon-to-be-extinguished, then I think one of the Ten Commandments has something to say about the subject. I’d prefer to be on their side.

    There is certainly a basis for that view. See the Tiferes Yisrael at the end of Yoma where he discuss the aspects of chayei sha’a vs. chayei olam in terms of taking one life in order to save another. it is clear that this view has a solid basis and if anything certainly makes the “shev v’eal taaseh” suggested by R’ Spira as being difficult to countenance. It ceryainly makes refusing to give and allowing to receive a halachically, medically and YES ALSO MORALLy difficult position to countenance

  60. shachar haamim

    In the above comment I meant a basis for R’ Natan and other view. I think that R’ Gil is giving it short thrift. I’m sure that the Tiferes Yisrael and others alos believed in the 10 commandments and probably had a rendering of them on their arok kodesh as well.

  61. R’ Gil,
    Can you please explain why you consider the case of “take but don’t give” a case of Eilu V’Eilu and not a case of קולי בית שמאי וקולי בית הלל?

  62. Shachar: Are you also willing to take organs from someone whose brain is alive but will definitely die within a few days?

    Benny: If my friend follows the poskim who hold that brain death is death, then his donating organs is a mitzvah. I should encourage him to donate organs to those who need it. How does it make sense for me to tell him to donate organs to anyone in the world except for me?

  63. a. So if I understand correctly you would agree that in a case that someone accepted an organ he can’t at a later stage not agree to donate. is that correct?
    b. To your question: “How does it make sense for me to tell him to donate organs to anyone in the world except for me?”, my answer is: because you are “machmir” that BSD is not death – so for you it’s assur.
    c. To my reasoning it seems like it should be the opposite. The person donating is not doing any action, only the doctor and the person receiving – so if one holds that BSD is not death he should be able to donate since he isn’t doing any action and those who are taking from him can be somech on the other opinions, but it should be assur to receive since he is causing the donor to be killed – something he holds is assur.

  64. RGil: ..As to the strong connection, I’m not sure how anyone can deny the strong disconnect that Dr. Prager said applies in the vast majority of cases between a specific recipient and the “murder” of the donor (according to those who don’t hold by brain death). According to Dr. Prager, most recipients do not cause the donor’s “death”. Surely that has halakhic significance.

    “Not sure how anyone..” ??!? Did we even read the same essay? Dr. Prager never said a “strong disconnect” applies in the “vast majority” of cases. That is R Gil’s very strained spin.”(hmm. note to RGil – consult with R. Shafran re other potential career options) . there is NO strong disconnect. firstly Prof Prager testified that up to 15% of the cases in his experience involve a single recipient – so there is a reasonable chance (once in every six to ten donations or so) that if you accept the donation you are the entire show. now, what about the other instances (this is a “vast majority”?) when there are other recipients who share responsibility for the murder. while the very real possibility ( 1 in 6-10) you will end up as a sole recipient should be more than sufficient to preclude your willing complicity in the planned murder, the fact that you may have accomplices hardly “disconnects” you from the act. so i frankly don’t think it makes the slightest moral difference. Now, there are indeed some lacunae in Prof Prager’s description. for example, in a case of multiple recipients is one of them, perhaps the fellow getting the heart, more of a driver in the arrangements or the timing or whatever? but in the end, i don’t think any of that really matters.

    In fact, it seems clear to me from other essays that those who permit accepting such organs indeed believe in a “disconnect” but hardly the version RGil is now trying (desperately?) to preserve. and that is the disconnect which essentially envisions some organ bank of available tissues from which a recipient may belly up to the counter and make a withdrawal. no muss or fuss and certainly no question that a donation was made “lishmoh” of the recipient. I find even that morally problematic but at least understand how others could make the argument. I suspect – although i don’t know – that some mattirim may have been under such a misconception regarding the m’tzius. or at least I would like to think so.

  65. Mechy: 85-90% of the time, there are multiple recipients and we don’t know in advance who is causing the donor’s “death”. That seems to me to be a significant disconnect between any given recipient and the donor.

    However, I showed Dr. Prager’s essay to R. Hershel Schachter and he was not surprised nor did he think it halakhically significant.

    I understand the psychological desire to label those poskim who disagree with you as mistaken about the medical reality. However, I don’t think it is correct.

  66. R’ Shachar Ha’amim,

    Thank you and yi’yasher kochakha for illuminating our eyes with the Tiferet Yisra’el at the end of Tractate Yoma (p. 38 in the Bo’az, s.v. “omnam”).
    http://www.hebrewbooks.org/pdfpager.aspx?req=14149&st=&pgnum=40
    I agree with you that this deserves consideration in a sequel to the RCA paper.

    However, Tiferet Yisra’el’s position – to permit sacrificing a treifah to save a normal patient on the basis of the gemara in Nedarim 22a – is controversial, as evident from the final line of RJDB’s recent 9/11 article in Tradition 43:1 (“Sacrificing the few to save the many”). There (p. 86), RJDB writes “Moreover, in terms of normative Halakhah, a treifah may not be killed to preserve the life of another individual”. [RJDB’s footnote: “See R. Ezekiel Landau, Teshuvot Noda bi-Yehudah, Mahadurah Tinyana, Hoshen Mishpat, no. 59 and R. Schneur Zalman of Lublin, Teshuvot Torat Hesed, Even ha-Ezer, no. 42. Cf., however, Minhat Hinnukh, no. 296; R. Judah Rosannes, Parashat Derakhim, Derush 17; and R. Jacob Emden, Migdal Oz, Even Bohen 1:79; and R. Meir Arak, Tel Torah, Yerushalmi, Terumot 8:3.”]

    Furthermore, the dispute between Tiferet Yisra’el vs. RJDB only concerns a case of force majeure (i.e. where we are being forced by an outside gangster to kill a treifah for the sake of saving a normal patient; here Tiferet Yisrael rules to kill the treifah while RJDB rules to refrain from killing the treifah). But where there is no outside force majeure, and we instead are faced with a case of natural illness (i.e. a patient is suffering from catastrophic heart/lung/liver/pancreas failure and desperately needs an organ), we wish to kill a treifah in order to produce an organ to save the other patient from natural illness, we have no evidence that Tiferet Yisr’ael permits this, and it could be that even Tiferet Yisra’el will agree it is forbidden to kill the treifah. RSZA renders this point in his responsum cited in my comment on Prof. Resnicoff’s article on Feb. 15, at 12:13 p.m. [RSZA does not refer specifically to Tiferet Yisr’ael, but his responsum effectively addresses Tiferet Yisr’ael.]

    Hence, in the opinion of both RJDB and RSZA, my prescription of “shev vi’al ta’aseh adif” – to refrain from taking organs from a BSD patient – is appropriate. And if so, we return to the question of Encyclopedia Talmudit’s interpretation of Shabbat 129a that “safek nefashot lihakel”: we desecrate Shabbat to save a patient when at least according to one legitimate opinion among the poskim the patient must be saved.

  67. RGl: However, I showed Dr. Prager’s essay to R. Hershel Schachter and he was not surprised nor did he think it halakhically significant. I understand the psychological desire to label those poskim who disagree with you as mistaken about the medical reality. However, I don’t think it is correct.

    i do have a psychological desire to think the pos’qim who disagree with me (that sentence doesn’t come out too well but it’s only quoting rgil. no equality implied and no yoharoh intended but am too lazy to fix right now) misunderstand the m’tzius. unfortunately RSZA is no longer around to clarify. As for the rest of the yibbodel l’chaim lot of distinguished decisors who may simultaneously assur donation while permitting reception, what is striking to me is precisely the lack of any direct address, at least in the current spate of internet accessible argumentation, of what I – and I suspect quite a few other readers and certainly RMDT – view as the central moral conundrum. That is what has led me to conjecture a disconnect between the m’tzius and their understanding of it. and I would appreciate being pointed to a discussion which addresses this issue.

    your sharing of Prof Prager’s reportage with RHS is an illustrative case in point. It’s interesting to know he “was not surprised” and even more interesting that he didn’t think it “halakhically significant” but i still have no idea what RHS’s position actually is. I understand from the various publicity surrounding the matter that he is accounted one of those who reject BSD as determinative and thus presumably rejects donation in most circumstances. I have no quarrel to pick with an odom godol’s right and duty to call the intellectual/halokhic shots as he sees them. I may not agree with that personally and so I’ll just sign up with other pos’qim. But is RHS also one of the pos’qim who assur donation while permitting reception? It would help if you clarified that for me/us. And then – if he is one of those – why did you no ask him to directly respond to the seeming problem of benefiting from a murder in which you were complicit in the sense of prof Prager’s connectivity. That he doesn’t find it “halakhically significant” may have satisfied you but is an assurance that just isn’t going to cut it without an acceptable clarification. too much like contracting out one’s moral sensibility which i least do not believe is muttor. you may disagree.

  68. Observation: Centrist Orthodoxy seems to be following the Charedi sociology of Askanim front-ending Gedolim. We’ve seen this movie and it ends in tears.

  69. R. Mechy: I believe most poskim are keeping quiet right now (despite requests by Askanim to speak up) because they know that will only provide fodder for certain activists. They have spoken and written about the subject for 20 years and still answer private questions. As to why they haven’t specifically responded to the moral issue — just because something is THE issue now does not mean it was always THE issue. They answer the questions they are asked.

  70. Hirhurim: “As to why they haven’t specifically responded to the moral issue — just because something is THE issue now does not mean it was always THE issue. They answer the questions they are asked.”

    Be that as it may, this is the central issue for many people who are demonized for daring to raise the issue of a moral problem with the psak that rejects BSD, but then also wants donations from BSD patients. Agree with them or disagree (with their positions, methods, etc.), the fact remains that they – and more importantly those who read and hear their words, or have friends who do (and that can discuss it around the Shabbos table, at the office, etc.) – are working with what their opponents give them.

    At the current time, one side has put forward what at least SEEMS to be (and/or can reasonably be interpreted as) a potentially morally troubling position. The other side has therefore predictably raised objections.

    In response, the anti-BSD camp seems to have adopted a two-pronged defensive strategy; setting up and attacking straw men (e.g. making it seem like the real problem the BSD side has is simply with someone embracing an alternative definition of death), and refusing to engage or even acknowledge the moral dilemma.

    Strategically, at least, this is not strictly crazy (and it’s not like the anti-BSD side is the only side prone to employing straw men…I think they tend to use them more often, but reasonable people can disagree). But ultimately I think it’s a policy that’s doomed to failure, and it makes the anti-BSD side look like it has something to hide. In this day and age, the idea that responsible poskim can simply ignore the problem and hope it somehow goes away seems pretty unrealistic.

    As for the idea that “they answer the questions they are asked”: maybe I’m missing what you’re saying, but do you mean to suggest that poskim are somehow unaware that this is essentially THE issue (even, potentially, for people who agree in rejecting BSD)?

    And the fear of providing “fodder for…activists” is pretty flimsy. No one is asking poskim to give impromptu interviews to adversarial pro-BSD activists. I’m sure most people (myself included) would be happy with a controlled, carefully edited response to this issue – a response in which the author can feel comfortable attempting to anticipate and rebut potential criticisms.

    Instead, what we have is utter silence.

  71. Jerry: 1) It’s not a strawman. It was THE issue for 20+ years and Dr. Stadlan is still fighting that fight.

    2) From a PR perspective, they are being pound wise. The Jewish media will eat them for dinner if they open their mouths right now.

  72. “From a PR perspective, they are being pound wise. The Jewish media will eat them for dinner if they open their mouths right now.”

    Well, so much for Rabbinic leadership; instead we have politicians who desire plausible deniability. Or have I misunderstood your words?

  73. IH: I am sure that you are a tzadik gamur but other people speak out of both sides of their mouth on these issues. We complain when rabbis are manipulated by the media and detractors and also complain when they are silent and refuse to be manipulated. In the end, some people will complain no matter what. A leader’s job is to lead, and sometimes that means waiting out this fight until the talking heads have tired.

  74. Hirhurim: “It’s not a strawman. It was THE issue for 20+ years and Dr. Stadlan is still fighting that fight.”

    Not it’s not THE issue. In fact, it’s not an issue at all. Dr. Stadlan doesn’t deny anyone the actual moral or practical right to reject BSD. He simply thinks accepting BSD is correct and argues accordingly.

    Instead, we have all seen the BSD side accused of attempting to somehow censor, or morally delegitimize opposing definitions of death. And as has been pointed out countless times (indeed, over and over on this blog’s comments section), the BSD side sees no moral issue with rejecting BSD. They may think that view is wrong on the merits, but people are entitled to disagree.

    Many on the BSD side instead reserve their outrage for those who want to permit receiving, but call it “murder” in the case of donating.

  75. “From a PR perspective, they are being pound wise. The Jewish media will eat them for dinner if they open their mouths right now.”

    are you saying that whatever they say will be twisted or misconstrue no mater what? so why are they poskim if they can’t/will not explain their halakhic position – or its logical consequences – and are afraid of serious questions/challenges? reasonable people will listen to reason but not to teshuvas that leave many with unsatisfactory reasoning and questionable consequences. you need followers if you want to be followed.

    pr perspective – they have be pound foolish and are losing the the trust of the hamon am. we are leaderless and its becoming more of an issue now than 20 years ago.

  76. Hirhurim: “From a PR perspective, they are being pound wise. The Jewish media will eat them for dinner if they open their mouths right now.”

    I’m fine with that. I think this is an ultimately misguided strategy, but reasonable minds may disagree about this…but then their supporters can’t turn around and complain about how opponents characterize their position(s) (I’m sure you would say “mischaracterize” – and although I think you’re completely wrong about this, I don’t think for the purposes of this discussion it really makes a practical difference).

    If you make a claim that at least SEEMS to permit murder as long as it’s beneficial for you, but then very conspicuously fail to address the obvious moral issue (and yes, even if you ultimately think it’s not a problem, the QUESTION at least is a very obvious one), don’t be surprised when people react poorly.

  77. Hirhurim: “We complain when rabbis are manipulated by the media and detractors”

    Reb Gil is making it seem like the only two options available for poskim and activists on the anti-BSD-pro-reception side are to give an off-the-cuff interview to a hostile journalist that can then be manipulated by the media, or to say absolutely nothing at all, and refuse to acknowledge the problem whatsoever. And yes, people complain about the results of both of these (sometimes rightly so).

    But these clearly are not the only options. One can also, for example, issue a carefully worded and self-edited statement (in this day and age there are surely no shortage of venues that would be willing to publish this statement). This gives one the ability to anticipate criticisms, avoid controversial wording, etc. And if people criticize you after that…well, that’s the price of doing business. No one has a chiyyuv to agree blindly with your reasoning.

    But if you turn around and reject even this carefully controlled option, then you have no one to blame but yourself for people noticing (and subsequently making a big deal out of) the morally problematic aspect of your position.

    Do not misunderstand me. I very much want to believe that the anti-BSD-pro-reception poskim and askanim are sensitive to this issue, and have a good response beyond the tortured kvetching that we’ve seen in the comments on this blog, and the obfuscation/avoidance that we’ve seen in some of the articles on the topic (both here and elsewhere). Although I may ultimately agree with one side or another, nothing would give me more simcha and reinforce my k’vod chachomim than to see an adequate engagement with this issue. This makes it all the more disappointing and discouraging when it seems like the poskim/askanim don’t even seem to recognize that there is a problem.

  78. [R’ IH,
    In solidarity with you, I definitely affirm the opening ten words of our Rosh Yeshiva R. Student’s remarks at 2:22 p.m.]

    And now to further elaborate on the dispute between Tiferet Yisra’el vs. Noda Bi’Yehudah on whether – under force majeure – one may sacrifice a treifah to save a normal patient (as per my comment earlier today at 11:03 a.m.):

    (1) In Contemporary Halakhic Problems IV, p. 333, RJDB asserts that the Noda Bi’Yehudah’s ruling is also championed by RMF in IM YD 2:174, by R. Yitzchak Ya’akov Weisz in Shu”t Minchat Yitzchak 5:7, sec. 6-9, and R. Eliezer Waldenberg in Shu”t Tzitz Eliezer 10:25 (ch. 5).

    Actually, with all due reverence manifest before HaRav HaGa’on RJDB, it seems that he may have slightly misread that particular responsum of RMF. RMF indeed forbids removing the heart of a treifah for organ transplant purposes, but this is because – at the time the responsum was written in 1968 – the heart recipients all died from immunologically driven rejection. As such, the murder of the treifah donor could not be justified. But perhaps, if he were writing today, RMF would say that one may indeed murder a treifah to take his organs in order to save someone else, when the organ transplant will be successful thanks to cyclosporine. {As explained by HaRav HaGa’on RMDT in his 1988 symposium, the discovery of cyclosporine in the early ’80s marked a major turning point in organ transplant success. According to Wikipedia, cyclosporine was first tested in 1980, and formally approved in 1983.} Obviously, I am not saying that RMF necessarily agrees with Tiferet Yisra’el, but I am saying that we cannot prove from this particular responsum that RMF necessarily agrees with Noda Bi-Yehudah either. RMF’s responsum is totally ambiguous vis-à-vis the Tiferet Yisra’el vs. Noda Bi-Yehudah controversy.

    Regarding the Minchat Yitchak, a slight reference correction may be noted to RJDB’s citation. It is actually sec. 11 of the responsum, in the first three lines, where Minchat Yitzchak prohibits killing a treifah even to save a normal patient. Also, Minchat Yitzchak doesn’t explicitly say he follows Noda Bi-Yehudah as distinct from Tiferet Yisra’el; perhaps Minchat Yitzchak agrees with Tiferet Yisra’el but he is following RSZA that murdering a treifah is always forbidden in the case of saving another patient from natural illness. [In any event, the point is academic because, halakhah lima’aseh, Minchat Yitzchak clearly prohibits removing organs from a treifah in order to save another patient, thereby vindicating RJDB.]
    http://www.hebrewbooks.org/pdfpager.aspx?req=1599&st=&pgnum=35

    Regarding RJDB’s citation of Tzitz Eliezer, RJDB’s citation is accurate. Tzitz Eliezer rules like Noda Bi-Yehudah.
    http://www.hebrewbooks.org/pdfpager.aspx?req=14509&st=&pgnum=129
    A more detailed discussion by Tzitz Eliezer appears in an earlier volume:
    http://www.hebrewbooks.org/pdfpager.aspx?req=14508&st=&pgnum=100

    (2) In Benetivot Hahalakhah III, p. 156, RJDB explains the legal mechanics why Noda Bi-Yehudah forbids the killing a treifah even under force majeure in order to save the life of a normal person. After all, shouldn’t we say the blood of the normal person is “more red” than the blood of the treifah (thus answering the “mai chazit” question)? [Indeed, this is precisely Tiferet Yisrael’s argument to counter Noda Bi-Yehudah.] RJDB offers two answers on behalf of Noda Bi-Yehudah. One possibility is based upon the Kessef Mishneh to Hilkhot Yesodei Hatorah 5:4. Kessef Mishneh writes that we have an oral tradition going back to Mosheh Rabbeinu that homicide is always forbidden, whether or not the blood of the beneficiary of the homicide is more red. The sevara of “mai chazit” is only an asmakhta, according to Kessef Mishneh. [N.B. This seems analogous to what Rambam writes in his introduction to Peirush Hamishnayot, regarding the identity of “pri etz hadar” as etrog. Although the gemara in Sukkah 35a offers technical proofs that “pri etz hadar”=etrog, Rambam says it is ultimately a Halakhah li-Mosheh mi-Sinai, and the technical proofs are only an asmakhta.] So, for Kessef Mishneh, even when the sevara of “mai chazit” doesn’t apply, the rule of yehareg vi’al ya’avor still applies. Alternatively, Shu”t Chemdat Shelomoh no. 38 and Shu”t Achiezer 2:16:5 both write that because homicide is exegetically linked to na’arah hame’orasah, we learn that just as na’arah hame’orasah is always yehareg vi’al ya’avor, so too is homicide, even if the blood of the beneficiary of the homicide is more red than the victim. [The latter answer is offered by RHS his 1988 symposium with RMDT.]

    (3) How would Noda Bi-Yehudah explain the gemara in Nedarim 22a (which the Tiferet Yisrael marshals as evidence to counter the Noda Bi-Yehudah)? I would suggest as follows. One possibility is that – contrary to the interpretation of Tiferet Yisrael – from the way the episode is cited by Tosafot to Sotah 41b (s.v. kol), one might argue that Tosafot understood that Ulla did nothing to harm the victim. Ulla’s statement “kill him more quickly” was simply offered to confirm to the gangster that he was on the gangster’s side. But whether or not Ulla would have uttered those words, the victim would have lived just as long. Ein hakhi nami, Ulla would have had to forfeit his life rather than hasten the death of the victim. Perhaps Noda Bi-Yehudah understands the story in Nedarim 22a that way. [Indeed, this is also how Meiri interpretation of the story in Nedarim 22a.] Alternatively, even if we should assume that the gangster actually listened to Ulla (as Tiferet Yisra’el interprets the story), that was a case of Yichaduhu (i.e. one victim was already designated for death, and if Ulla didn’t co-operate, Ulla would die also). It is Rabbi Yochanan who told Ulla that he acted correctly. Rabbi Yochanan is consistent with his position that in a case of Yichaduhu, one delivers the designated victim to the enemy. But the normative Halakhah does not necessarily follow Rabbi Yochanan, as the Rema in YD 157 leaves the question of Yichaduhu unresolved. [See my comment on Jan. 23, at 8:54 a.m. at https://www.torahmusings.com/2011/01/statement-re-statement-re-brain-death/comment-page-5/#comments ] Perhaps Noda Bi-Yehudah understood the story in Nedarim 22a that way.

    [See also HaRav HaGa’on R. Aryeh Leib Shteinman’s answer to this question of how Noda Bi-Yehudah will explain Nedarim 22a, posted at http://www.dafyomi.co.il/nedarim/insites/nd-dt-022.htm With all due respect, I have to admit I can’t understand R. Shteinman’s answer (evidently a lack in my own comprehension skills), and to my mind only one of the two answers suggested above will actually work in defending the Noda Bi-Yehudah. All food for thought for the RCA’s sequel paper…]

  79. Lawrence Kaplan

    Gil: I’m with Mechy. For RHS simply to say that Dr. Prager’s article is not halakhically significant is not good enough. Let him write a considered essay showing why it is not signficant and explain clearly his position re donating and receiving organs. If at THAT POINT, but NOT before, he is misinterpreted, well, then ha-rotzeh litot, yiteh.

  80. when it comes to checking lettuce, 1/10 is defined by the OU as <= 1/10 with over 90% confidence. (they check over 25 head of lettuce.) A 50% confidence of < =1/10, a more reasonable interpretation of the Mishkanot Yaakov is still checking over 20 head of lettuce to be sure infestation is less than 1/10 likely.

    how does that square with about 1/9 of the time with NO confidence level being NOT significant? what happened to the need for a confidence level? in any case, unlike lettuce, must not a recipient check if he is the 1/9 case?

    Much is changing both medically and procedurally to quote anything but a recent psak AND its rationale. I am just curious what the halakhic definition of significant is? i thought I knew!

  81. Dr. Bill,
    Welcome to my world :-), I’ve been trying to figure that one out for years – when is there a leidat hasafek (and does it differ by the issue under consideration)? Do we do chazal(or poskim) a favor by trying to quantify the “I know it when I see it” approach? Why weren’t chazal into objective measures in some cases?……….
    KT

  82. Jerry: Dr. Stadlan doesn’t deny anyone the actual moral or practical right to reject BSD. He simply thinks accepting BSD is correct and argues accordingly.

    I don’t understand your point. Why does this have to be about rights? It has always been about who is correct and why.

    Many on the BSD side instead reserve their outrage for those who want to permit receiving, but call it “murder” in the case of donating.

    That is a relatively new development. It used to be about how the other rabbis are ignorant of science and needed to be enlightened. Now it’s about how they are immoral and need to be enlightened.

    but then their supporters can’t turn around and complain about how opponents characterize their position(s)

    That’s not what the complaints are about. Complaints include saying that the Vaad Halakha allows removing organs from donors for recipients who do not hold from brain death (I know of at least one reporter who wrote that even after being told by a member of the Vaad Halakha that this was neither the intent nor the wording) and that this paper represents a new RCA policy. There are more complaints.

    But these clearly are not the only options. One can also, for example, issue a carefully worded and self-edited statement (in this day and age there are surely no shortage of venues that would be willing to publish this statement). This gives one the ability to anticipate criticisms, avoid controversial wording, etc. And if people criticize you after that…well, that’s the price of doing business. No one has a chiyyuv to agree blindly with your reasoning.

    The RCA tried that and the media then reported that its clarification was really backing down from the paper. If I recall correctly, organ donation advocates pushed that misrepresentation.

    You are right that no one has to agree with any specific posek. They only answer questions asked to them. They don’t insist that the entire world follow their views.

    Ruvie: are you saying that whatever they say will be twisted or misconstrue no mater what? so why are they poskim if they can’t/will not explain their halakhic position – or its logical consequences – and are afraid of serious questions/challenges?

    I was not aware that a requirement of being a posek is issuing press releases and speaking with the media. I thought is was about having knowledge and expertise, and answering questions when asked.

    pr perspective – they have be pound foolish and are losing the the trust of the hamon am. we are leaderless and its becoming more of an issue now than 20 years ago.

    I agree that this is a problem but I think they are trying to do the least amount of damage. Given the behavior of the press on this issue, I understand their concern.

    Lawrence Kaplan: For RHS simply to say that Dr. Prager’s article is not halakhically significant is not good enough. Let him write  a considered  essay  showing why it is not signficant and explain clearly  his position re donating and receiving organs.

    I’d like to see such an essay also but I’m not sure why he has to write it. Maybe he’ll write it a year from now when the vultures aren’t circling.

    Dr. Bill: when it comes to checking lettuce, 1/10 is defined by the OU as <= 1/10 with over 90% confidence.  (they check over 25 head of lettuce.) A 50% confidence of < =1/10, a more reasonable interpretation of the Mishkanot Yaakov is still checking over 20 head of lettuce to be sure infestation is less than 1/10 likely.

    I don’t see the comparison. One is defining frequency of infestation and the other is defining causation from grama.

  83. R’ Gil,

    Both are defining what constitutes so remote a possibility that one need not be concerned. if i am the direct cause of death 1/9 of the time, i fail to see why that is insignificant if i worry about infestation that occurs even less frequently. I appreciate the different domains, but why is that difference of consequence?

    Joel Rich, I believe that for miut sheaoino matzui, we have a proposed definition from the mishkenot yaaakov. in general, laidat hasafek, may not be as clear cut and may differ by area. In area A leidat hasafek occurs with a different probability of occurrence than area B. I do not know. checking whether i might be causing a murder, may have a LOWER threshold ( requiring a higher probability) for which i must check than the suspicion of infestation.

  84. Maybe it’s my ignorance but I’m not sure that the threshold for grama is miut ha-matzuy. Do you have a source for that?

  85. I didn’t realize I rated a debate over what what I am or am not for. Rather than wait until I chas v’shalom pass away and then have my writings and comments parsed(I can imagine how someone would go through the comments here and have a field day), let me clarify.

    I have never stated a Halachic opinion. What is important is that the poskim have a full and accurate understanding of the medical facts- something which I thought was lacking, and why I approached the RCA in the first place a number of years ago. As I have had the opportunity to think about the different halachic opinions, it also occured to me(and others) that there lacked an overarching approach to defining death, and it seemed that some poskim defined death one way in one context, and another way in another context- something which seems incongruous with usual halachic positions. In the course of these discussions, a further problem with the circulation definition appeared, which is discussed on my recent post at the RCA blog(text and texture)- the specifics of the definition do not match the underlying rationale.

    It turns out that all these concerns point towards defining death on a neurological basis, and I have made no secret that this is the view I follow.

    If someone who advocates the circulation definition can answer these concerns- fine. It is also fine for those who want to use the circulation definition despite the logical incoherence, perhaps because of underlying hashkafic view. But I think it is important for thinking Jews who are making a decision, or rabbonim who are making a psak, to understand the basis for the psak they are following, not just follow a certain person. That is why it is important, for instance, for the Modern Orthodox to realize that Rav Shachter uses a distinctly non Torah u’Madda view of nature, that of the Chazon Ish, in his development of his view on this subject.

    Finally, there is the issue of opposition versus deligitimization. I am very much bothered by those who say “I believe the Va’ad paper, and so YOU can’t hold by brain death”. It is fine to have a different view of the right psak, and obviously it is hard to agree to differ when it is an issue of murder. However the dogmatism of some who insist that not only are they right but that the other side is not a legitimate Halachic view is something that in my view needs to be combated in this issue.

    So in essence, I am arguing for the inclusion of the neurological criteria for death in the Halachically acceptable group of definitions, and pointing out the problems with the other definitions, while not opposing those who adhere to them, as long as they are not trying to read brain death out of the halachically acceptable group.

  86. Hirhurim: “Why does this have to be about rights?”

    It doesn’t – that’s my point. That it does has been the caricature created by the anti-BSD side of its opponents – both on this blog (in articles and comments) and elsewhere. The idea seems to be that the BSD side is insisting that one cannot follow another position.

    Hirhurim: “That is a relatively new development. It used to be about how the other rabbis are ignorant of science and needed to be enlightened. Now it’s about how they are immoral and need to be enlightened.”

    Relatively new development? I remember hearing Rav Tendler talk about this for quite some time now. And it has resurfaced precisely for the same reason why much of the rest of this debate has resurfaced, or at least gained more attention: because the Va’ad Halacha’s paper was much worse than anticipated.

    Hirhurim: “Complaints include saying that the Vaad Halakha allows removing organs from donors for recipients who do not hold from brain death”

    I’m a little unclear about what this sentence means. As far as I can tell, you mean to indicate that some have claimed that the VH allows those who would not, for halachic reasons, donate after BSD, to still receive organs from those who would. If this is correct, then the only way the VH could deny that this is its conclusion is by saying “we didn’t come to any conclusions.” While that is technically true, the fact remains that – as many on this blog itself (and elsewhere) have convincingly argued – the VH paper constitutes “leading” of the worst sort (and regarding the particular issue of receiving-without-donating, it is stated as the position of RSZA and RAS, both times without any further analysis, let alone disapproval).

    That the VH Paper’s clearly preferred conclusion is never made explicit seems merely to have been done for the purpose of preserving plausible deniability. That way the VH Paper’s supporters can feel free to launch into a fit of righteous indignation when anyone dares to argue against a “position” of the VH. I daresay that many (I don’t know about “most,” but one can hope) are not fooled.

    Hirhurim: “The RCA tried that and the media then reported that its clarification was really backing down from the paper.”

    The RCA’s response was highly political, and as such I’m not sure you can fairly claim that this is a “media distortion” as much as it is a reasonable interpretation of what the RCA’s statement was intended to do. And Rabbi Arie Folger’s comments on this very blog seem to suggest that not everyone at the RCA is on the same page (see Noam Stadlan’s comments on the R. Basil Herring thread).

    Hirhurim: “They don’t insist that the entire world follow their views.”

    Right. And no one else (i.e. on the BSD side) is insisting on this either. Everyone recognizes that one is entitled to follow his or her own posek on this issue.

    To imply otherwise may not be your intent at all but, to reiterate a point I made above, I am constantly frustrated by the (hopefully unintentional) confusion – by the anti-BSD side – of the BSD side’s arguments in favor of its criteria for identifying death, with the completely separate (if somehow related) argument against adopting a different standard for receiving and donating.

  87. I believe that for miut sheaoino matzui, we have a proposed definition from the mishkenot yaaakov.
    =====================
    We do, but where did he get it from?
    KT

  88. I didn’t realize I rated a debate over what what I am or am not for. Rather than wait until I chas v’shalom pass away and then have my writings and comments parsed(I can imagine how someone would go through the comments here and have a field day),
    ===================
    LOL but the truth is, it doesn’t matter what you really think, only what the later chochmei hamesora understand you to have meant 🙂
    KT

  89. Putting moral issue aside – Have any of the Poskim who do not accept BSD ever responded to Dr. Stadlan’s article about the logical inconsistencies of that view? Surely it presents an entirely new set of arguments that have not been considered before.

    (Regarding my earlier comment: I wish that I hadn’t written the second part, but only because it distracted from the more important part, which was to note that Rabbi Spira was effectively saying that in the same way that some have been occupied saving definite lives at the expense of most-probably-extinguished-but-still-doubtfully-existent lives, so too have others been occupied saving most-probably-extinguished-but-still-doubtfully-existent lives at the expense of definite lives.)

  90. “Maybe it’s my ignorance but I’m not sure that the threshold for grama is miut ha-matzuy. Do you have a source for that?”

    i have no source but assume that it cannot be a miut ha-matzuy. that’s what would have to be explained in a written psak.

  91. By the way, R. Gil – you wrote:

    “I’m not sure why R. Natan feels he has the right to decide which life takes precedence. If it is a life, even if it soon-to-be-extinguished, then I think one of the Ten Commandments has something to say about the subject. I’d prefer to be on their side.”

    You changed the issue! If it’s a soon-to-be-extinguished life, of course you are correct. But I was speaking about the situation as described by R. Spira – someone choosing to sacrifice their own most-probably-ALREADY-extinguished-but-still-doubtfully-existent life.

  92. Lawrence Kaplan

    Gil: My point is that while RHS may have good reasons for not writing right now the essay that both you and I would like him to write, until he does so I, unlike you, will not take on faith his assertion that Dr. Prager’s essay is not halakhically significant.

  93. shachar haamim

    Hirhurim on February 21, 2011 at 9:11 am
    Shachar: Are you also willing to take organs from someone whose brain is alive but will definitely die within a few days?

    While perhaps extereme the Tiferes Yisrael can be viewed as supporting that position.

    R’ Spira – the gemara in question was a case of what you term as “force majuere” – i.e. a gangster said do X or I will kill you. The Tiferes Yisrael’s view is not limited to to what you refer to as “force majeure”.
    Also if someone is lying there BSD and his heart can save a patient who will otherwise die and give that patient significant life (what we would call chayei olam) then that utself is a case of “force majeure”. If you think about it the recipient – with the doctor acting as a shaliach on behalf of the recipient is in exactly the same situation as Abaye was in the gemara – “kill” him or you will die. The reality is that the force majeure is the same.

    I would add that the above is relevant to a discussion if one holds BSD is NOT death. How much more so this becomes relevant in discussing a resolution to the debate/doubt as to whether or not is considered death.
    think about it.

    as I stress repeatedly – the yes to receive, no to donate position has no halachic, medical or moral validity – no matter who is quoted as supporting it

  94. shachar haamim

    a few more points on the Tiferes Yisrael. There was no given that Ula (excuse the mistake above re: Abaye) was threatened with his life. It may have been implied but wasn’t a given. This weakens the arguments limiting the position to “force majure” – which as I noted would also capture transplants in any event.

    Also the Tiferes Yisrael is explicit is stating that even safek chayei kiyum takes precedence over vadai chayei sha’ah.
    so how much more for vadai chayei kyum of today’s transplant regime vs. safeik chayei shaa of BSD – which is in reality safeik met and very, very extreme safeik chayei shaah???
    Was he missing the 10 commandments?

    Could one legitimately refuse to donate organs and then still accept organs under this regime?

    I think not…

  95. shachar haamim

    “Many on the BSD side instead reserve their outrage for those who want to permit receiving, but call it “murder” in the case of donating.”

    ‘That is a relatively new development. It used to be about how the other rabbis are ignorant of science and needed to be enlightened. Now it’s about how they are immoral and need to be enlightened.’

    It might be new, but the anti-BSD side has certainly pushed the arguments. We have been treated to claims that suggest that the right to receive is a fundamental constitutional right which can’t be abrogated by an encouragement to donate scheme that rewards donors with priority placement (i.e. not money, not organs for sale, just priority placement in an all others being equal scenario) because those who refuse to donate on religious grounds consider donating to be murder but receiving is OK b/c the murder is already done. It’s not too difficult to suggest that a person who holds such view needs enlightening.
    We’ve also been treated to Ivy League legal scholars who have argued that – unlike duly executed and valid tetstatory wills – an organ donor will can somehow be abrogated because of “changes in circumstances”. While perhaps not needing enlightenment, and morally neutral, we humbly suggest that the purveyors of such view attend a second year class on family and estate law in order to understand why this view has no legal foundation.

  96. R’ Shachar Ha’amim,

    Thank you for your important responses regarding the Tiferet Yisra’el, which prompts us to analyze Tiferet Yisra’el further. Tiferet Yisra’el only delivers a pesak halakhah in cases of killing a treifah when there is an outside human gangster threatening me (or another patient). He does not deliver a pesak halakhah in the case of killing a trifah to save a patient from natural illness. This is the distinction bespoken by Rambam in Hilkhot Yesodei Hatorah between violating the three cardinal transgressions because of force majeure and violating the three cardinal transgressions to be healed from natural illness. Likewise, it is the distinction bespoken by Shulchan Arukh in Hilkhot Berakhot between eating food when forced by a gangster and eating food when forced by an illness. This is also the distinction bespoken in Hilkhot Gittin: if I deliver a sefer keritut to my spouse because an outside gangster is threatening to punish me, the sefer keritut is fully disqualified. If I deliver a sefer keritut to my spouse because I am mortally ill, and I don’t want my spouse to become subject to the requirement of yibum, the sefer keritut is fully kosher.]

    Admittedly, at the end of his comment, Tiferet Yisra’el does discuss the gemara in Nedarim 80b where, according to Rabbi Yosé, an upstream town may launder its own clothing with its water supply, even if this means that a downstream town will not even have enough water to drink. This is not a case of force majeure, but rather a case of avoiding illness (since, as the gemara explains, if the upstream town does not launder its clothing, it will experience plague). However, Tiferet Yisra’el only cites the case of Nedarim 80b in order to distinguish between geram and ma’aseh. In other words, in Nedarim 80b, although the downstream folk will thirst to death, the upstream folk may use the water for laundry, because it is only a geram. Likewise, Tiferet Yisra’el explaining that Ulla was a tzaddik and he did nothing wrong because it was only a case of geram when he said “kill the victim more quickly”. But Tiferet Yisra’el *never* says that one may actively kill a treifah patient in order to save the life of another patient from natural illness.

    Moreover, Tiferet Yisra’el’s entire analysis of Nedarim 80b is itself controversial. R. Ovadiah Yosef, in Shu”t Yabi’a Omer IX, CM no. 12, sec. 6 [reprinted verbatim in idem X, CM no. 6, sec. 10], observes that (a) some poskim do not rule like Rabbi Yosé in Nedarim 80b because he is disputed by the majority of his fellow Sages, and (b) even among those poskim who do rule like Rabbi Yosé, some (including RMF in IM YD 1:145) understand the gemara to be referring to a situation where the downstream folk will never actually die of thirst if the upstream launders clothing, but will rather have to endure the hardship of relocating to a new venue; if the downstream townsfolk would actually risk death, then even Rabbi Yosé would agree that the upstream townsfolk are strictly forbidden to launder clothing. This is also the approach of R. Yosef Shalom Eliashiv in the latter’s Kovetz Teshuvot I, no. 124 (three paragraphs commening s.v. uvenedarim).

    Also, even in the case of actual force majeure, Tiferet Yisra’el’s ruling is challenged by Noda Bi-Yehudah. The significance of the Noda Bi-Yehudah’s stature can be appreciated from R. Gedaliah A. Rabinowitz’ HODS interview, where R. Rabinowitz terms Noda Bi-Yehudah “the greatest posek”. [Specific context: Robert Berman asks R. Rabinowitz why he is not concerned about nivul hamet in the case of piku’ach nefesh. R. Rabinowitz answers that “most poskim, the Noda Bi-Yehudah being the greatest poskim” do authorize nivul hamet for piku’ach nefesh.]

    For the above reasons, it seems clear to me that we are obligated to pursue “shev vi’al ta’aseh” and to refrain from removing organs from BSD patients for the sake of saving other patients’ lives. And this is precisely what RSZA ruled is the Halakhah in Eretz Yisra’el: it is forbidden to remove organs from a BSD patient, even to save the lives of other patients. My contribution (S. Spira) is to observe that RSZA’s hetter for Diaspora was contradicted by RMF (comment on Dec. 7 at 5:30 p.m. at https://www.torahmusings.com/2010/12/brain-death-in-the-news/ ). Therefore, it would seem to me that it is forbidden even in the Diaspora to remove organs from a BSD patient in order to save the lives of other patients.

    R. Natan Slifkin’s characterization of my conclusion is perfectly accurate, and I thank him for expressing it with excellent pedagogical clarity. In the post-2008 era (i.e. after RSZA issued his responsa, and after RJDB published his article explaining human identity), the BSD patient is most probably dead (in RSZA’s golden words: safek hakarov livadai) but is still doubtfully alive. Taking into consideration the three codifications of Shulchan Arukh regarding the manifestation of life: Shulchan Arukh Orach Chaim 25:5 – life is manifest through both the brain and the heart; Shulchan Arukh Orach Chaim 329:4 – life is manifest through respiration; and Shulchan Arukh Yoreh De’ah 67:1 – life is manifest through circulation; we are left with a safek in the case of a BSD patient. Most probably the BSD patient is dead, but we cannot be sure. As HaRav HaGa’on R. Yigal Shafran said in his HODS interview: “ee efshar bishum ofen livatel et hapeshat shel HaRav Eliashiv” – it is impossible to cancel the interpreation of R. Eliashiv [that BSD patients are potentially alive]. Therefore, it seems obvious to me that we are forbidden to sacrifice the BSD patient in order to save other patients, even though the other patients are definitely alive and the BSD patient is most probably dead. “Safek nefashot lihakel” in Shabbat 129a, at least as interpreted by Encyclopedia Talmudit IX, p. 267, requires me to desecrate Shabbat in order to heroically prolong the existence of the BSD patient. The same way Rav Ashi’s opinion was overridden by the gemara in favour of Mar Zutra, so too must the RMF/RYBS interpretation of Chatam Sofer be overridden in favour of RSZA/RJDB.

    I agree with Mori ViRebbi R. Kaplan that HaRav HaGa’on RHS does not possess a justification to allow registering for organs under the present circumstances. The lomdut of HaRav HaGa’on RMDT is far superior to that of HaRav HaGa’on RHS. [See my comment on HaRav HaGa’on RMDT’s symposium article on Feb. 8, at 8:24 p.m.] Therefore, no one may register for cadaveric organs – neither Jew nor Noahide, neither in the Diaspora nor in Israel – and all transplant surgeons should immediately refuse to perform any further cadaveric transplants. Hence my recommendation for a conference of Gedolim to confirm such a wide-sweeping conclusion, and – if the Gedolim should arrive at such a conclusion – my further recommendation that the U.S. government pass a constitutional amendment recognizing this moral principle. As such, the future activities of the righteous HODS organization will focus on blood, bone marrow, live kidney and live partial liver donations, all donations which are unquestionably a great mitzvah of piku’ach nefesh. I also recommend all Yeshivot establish a co-requisite policy of requiring rabbinical students to obtain a medical degree. [This is somewhat analogous to the current RIETS requiremnt of requiring all rabbinical students to possess a Master’s degree.] This will ensure that poskim have the very best of medical knowledge in rendering halakhic decisions, and will also serve as a nice demonstration of (the already self-evident truth) that Orthodox Jewry is championing the healthcare of humanity to the very best degree possible.

  97. shachar haamim

    R’ Shalom Spira

    I re-read the Tiferes Yisrael and nowhere at the end does he discus his conclusion as applying only in the case of a threatening gangster. He says quite explicitly that we are not concerned for chayei shaa in the instance where there is chayei kiyum opposite it and a person can save his life by taking the life of chayei shaa. This might be a radical position and it might make some people uncomfortable (and it’s not the only place the Tiferes Yisrael has interprettaions that make people uncomfortable) but it is his view nonetheless. It certainly has great relevance for the BSD vs anti-BSD halachik death debate and for the whole organ transplant regime.

  98. I apologize for not keeping up with the comments yet. I just want to pose a question that someone e-mailed me. According to those who accept brain death, can a wife remarry while her husband is in the hospital attached to a respirator? (Setting aside issues of mourning)

    Or if she has an affair at that time, is she guilty of adultery?

  99. Gil,
    those are not really difficult questions. The answers are clearly “yes” and “no”, respectively. All those questions point out is the fact that most people have trouble seeing as dead those who are brain dead but still exhibit certain physiological functions. An accurate observation, but not directly relevant.

  100. Gil,

    What’s the hava amina for “no/yes” answers? ISTM dead is dead. Unless there are different definitions of dead for different purposes, but I don’t recall anyone raising that possibility throughout the BD discussions over the past weeks.

  101. R’Gil,
    How about this question. The husband’s heart has stopped and he is not breathing. The wife quickly has sexual relations with a married man. hatzaloh pulls up and shocks the husband back to life. Have they committed adultery? What if the married man dies before the husband is shocked back to life – is his death mchapeir if you say he had committed adultery?
    KT

  102. I’m just wondering if any of the poskim have said this explicitly. I answered him that I think it is as you said but that I will ask.

  103. R’ Joel: I think everyone would agree that she committed adultery because the heart and breathing did not irreversibly stop.

    Your second question depends on whether the issur is violated at techilas biah or gemar biah. IIRC RYBS discussed this in his hesped for his uncle!

  104. Let us review some facts.
    R’HS is following his Rebbe, R’YBS, as reported by ALL of the Rav’s closest Talmidim and relatives.
    Nearly all of the leading poskim of our generation and previous one do not hold that BSD is death. These include R’SZA, R’YBS, R’AS, Tzitz Eliezer, Yibadel lechaim R’YSE, R’Sternbuch, R’Vozner, R’JDB,RMW
    The opinion of R’MF is open to debate. Most assume he agrees with the other leading poskim and R’MDT thinks otherwise.

    The RCA paper presents the standard psak as maintained by the major poskim of the past 2 generations. HODS is certainly allowed to ignore these poskim. However, anyone who sides with the RCA is siding with the side of the standard accepted psak of the past 2 generations.

  105. Yonatan,
    I suggest you reread your comment and decide if it still correct.

  106. yonatan, similar to the RCA paper, you have left out a few facts. The chief Rabbinate(going back to the late 1980’s), Rav Ovadia Yosef, Rav Gedalia Dov Schwartz, Rav Yosef Carmel, Rav Rabinovitch, and many others are of the opinion that you are dead when your brain has irreversibly ceased to function. The opinion of RMF is open to debate only if you chose to think that Rav Tendler is lying. (remember, Rav Tendler is telling us what Rav Moshe told him. If you believe Rav Tendler, then that is the end of the story. Everyone else is trying to find Rav Moshe’s opinion via analysis of his teshuvot)

    The issue is that some people want to say that accepting brain death is not a halachically acceptable option. If they were willing to let everyone go with the posek they follow, it wouldn’t be such a hot issue.

    And please remember that the RCA had agreed to both positions until the va’ad halacha paper came out.

    Regarding the person on the ventillator who has been declared dead by neurological criteria: The person is legally dead when the criteria have been fulfilled, whether the body is still ventillated or not. (which has led to some discussions of how vital signs are still charted on someone who is legally dead- family was deciding on donation so the body was still supported). From a halachic point of view I am not aware of a posek who paskens’ brain death who holds otherwise.

  107. R’ Yonatan,

    Thank you for your comment, which I especially appreciate since I agree that – as a matter of safek piku’ach nefesh – we are obligated to follow RSZA’s interpretation of Chatam Sofer (viz. that although life depends upon breathing, the last breath has not definitely finished until circulatory activity that legally benefits from that breath has also terminated). Thus, the BSD patient is most probably dead but still possibly alive, lingering on his final natural breath like an artificially prolonged “teki’ah gedolah” of sorts. We are therefore obligated to desecrate Shabbat to heroically maintain the existence of the BSD patient.

    At the same time, out of reverence for HaRav HaGa’on RMDT, and also for the sake of intellectual honesty, I would respectfully defend RMDT’s reporting of RMF’s pesak halakhah. But actually, I’m very happy you raised the issue, since HaRav HaGa’on RJDB agrees with you, and thus in challenging your interpretation of RMF I am also challenging (kitalmid ha’yoshev bakarka vidan lifnei rabbo) RJDB’s interpretation. So let’s carefully examine the evidence that RJDB presents in Contemporary Halakhic Problems IV, in the noble spirit of milchamtah shel Torah:

    (a) P. 343 – RMF rules in IM YD 2:146 that “it is not mentioned in the Gemara or the Codes that there is an indicator of life in the brain”.

    S. Spira’s rejoinder: With all due respect to RJDB, this is not a proof. RMF clearly says his responsum is addressing the case of “af she-hu noshem”, where the patient is breathing. It is describing cerebral death, not brain-stem death.

    (b) P. 343 – RMF describes heart transplantation in IM 2:174 as double murder.

    S. Spira’s rejoinder: Ditto as before. This responsum was written even two years earlier. The responsum only deals with cerebral death, not brain-stem death.

    (c) P. 343 – RJDB asserts the Chief Rabbinate Council report that RMF allowed heart transplantation in the final years of his life is entirely contrafactual. RJDB insists that RMF only allowed receiving a heart, but that RMF never allowed giving a heart.

    S. Spira’s rejoinder: In his 1988 symposium with RHS, RMDT specifically testifies that in many cases RMF permitted deactivating the ventilator of BSD patients. According to RMF, deactivating the ventilator of a living patient constitutes murder. [See my comment on R. Broyde’s symposium article on Feb. 10 at 7:29 p.m.] Thus, RMF certainly regarded BSD patients as dead. Tosafot in Yevamot 77a obligate us to accept RMDT’s testimony, since RMDT does not possess an ulterior motive. Moreover, although superfluous in rendering the point, RDF has corroborated RMDT’s testimony in his HODS interview. RDF states as follows:

    “My father’s position was very simply that the stopping of breathing is a point that’s death. It doesn’t matter if the heart is functioning or it doesn’t function. As long as he stops breathing, he’s considered dead. That’s the way he explained the gemara in Yoma and that’s the way he said they always did in Europe when the Chevra Kaddisha went to test if a person is dead or not. They always used to test his breathing and nothing else. I’ll repeat again the same thing. If the breathing has stopped, then he’s considered dead. And that’s it; nothing else… Anything else is not a criterion, that’s all… He was very makpid that his words should not be changed. Quote him as is: he cannot breathe. Nothing else.”

    I (S. Spira) hasten to add that RMF’s ruling was subsequently overturned by RSZA, and that in our post-2008 era it is now absolutely forbidden to follow RMF (just as what occurred with Rabbi Eliezer’s ruling regarding circumcision on Shabbat, in Shabbat 130a). But out of reverence for RMF and his distinguished family, as well as for the sake of intellectual honesty, I must humbly acknowledge that this was RMF’s ruling for the pre-2008 era. For this reason, I believe the RCA was correct both in 1991 to accept brain stem death and in 2010 to (ostensively even if not ostensibly) reject brain stem death.

    (d) P. 344 – The Bondi letter cannot be granted no credence because, in that letter, RMF requires prolonging the life of a gossess, whereas RMF has written elsewhere that it is not obligatory to prolong the life of a gossess. Thus, RMF must have been highly confused when he dictated the Bondi letter, and since it was dictated during RMF’s final illness, the Bondi letter should not be granted no credence.

    S. Spira’s rejoinder: RJDB’s observation as to RMF’s inconsistency is well taken, but I (S. Spira) think that RMF’s approach to prolonging the life of a gossess was always nuanced throughout RMF’s rabbinic career. Although in some cases RMF seems to not require prolonging the life of a gossess, on the other hand in IM YD 2:174 (sec. 1, final paragraph) RMF does in fact require desecrating Shabbat to prolong the life of a gossess. [I hasten to add that, in terms of halakhah lima’aseh, we definitely must desecrate Shabbat to prolong the life of gossessim, based on the comprehensive treatment of this topic by RJDB in Benetivot Hahalakhah III, pp. 161-178.] Thus, I see nothing strange about the Bondi letter per se. Also, although the Bondi letter was written during RMF’s final illness, so was RMF’s letter of approbation to the entire volume of Iggerot Mosheh (Even Ha’ezer IV/Choshen Mishpat II) that was published after the Bondi letter. The letter of approbation was written two months after the Bondi letter. Yet that volume of IM is accepted as a cherished part of the Oral Torah in every beit midrash. Evidently, although RMF may have been ill, he was capable of delivering piskei halakhah. So the same way we accept that volume of Iggerot Mosheh, we can accept the Bondi letter in reasonable conscience.

    (e) P. 345 – the Bondi letter cannot be accepted because it contradicts Rashi, Meiri, Chakham Zvi and Chatam Sofer.

    S. Spira’s rejoinder: At hand is, in fact, the very question of how to interpret Chatam Sofer. RJDB’s point is well taken (and is indeed the Halakhah) for the post-RSZA, post-2008 era. But RMF lived in a different era, and he understood Chatam Sofer differently. Indeed, as I have documented earlier in this post (comment on Feb. 18 at 10:29 a.m.), already in 1979-1980 it was publicly manifest in the pages of JAMA that RMDT (as the spokesperson of RMF) and RJDB were debating how to interpret Chatam Sofer. This is no secret (-and, as I further explained, this debate between RMDT and RJDB was an enormous Kiddush Hashem which helped accelerate the recognition of Malkhut Hashem by all humanity).

    (f) P. 345 – RMF published IM CM 2:72 – which prohibits heart transplantation, even in 1985, when brain-stem death was well defined.

    S. Spira’s rejouinder: That entire responsum is clearly anachronistic, because it refers to problems of immunological rejection, and yet by 1985 there was no more problem of immunological rejection. See my comments on Prof. Resnicoff’s symposium article, on Feb. 16.

    (g) P. 346 – In IM YD 3:132, RMF suggests the radionuclide scan as an “added strigency”.

    S. Spira’s rejoinder: The “added stringency” is that although, in theory, RMF held that we learn from Eli Hakohen that total brain dysfunction = deapitation, nevertheless, we are stringent in practice not to diagnose decapitation until the brain completely decays. See my comment on Dec. 27 at 9:04 p.m. at https://www.torahmusings.com/2010/12/death-by-neurological-criteria/

    (h) P. 346 – In IM YD 2:146, RMF says that it is not the nose which gives life to a human being, but rather the heart and the brain. Thus, asserts RJDB, we see that RMF equated heartbeat with life.

    S. Spira’s rejoinder: RMF is simply paraphrasing Shulchan Arukh Orach Chaim 25:5 which states that the brain and the heart are the sources of life. Although in the post-RSZA post-2008 era we are obligated to follow RJDB’s interpretation of that passage of Shulchan Arukh (“safek nefashot lihakel”, as per the gemara in Shabbat 129a), RMF evidently had a different interpretation of that passage of Shulchan Arukh. He felt the brain must be functioning at some minimal level (enough to drive breathing) in order for the patient to be alive, not only the heart.

    S. Spira’s conclusion: I agree with you R’ Yonatan that we are halakhically obligated to treat the BSD patient as potentially alive, and we are obligated to desecrate Shabbat to heroically prolong his existence. At the same time, there is no contradiction to this in acknowledging that RMF ruled differently, and that his ruling (like the ruling of Rabbi Eliezer regarding circumcision) was supremely authoritative for some time, until it was overturned by the combination of RSZA and (yibadel lichaim) RJDB, during the years between 1991 and 2008.

  108. R’Gil,
    but they only knew that it was reversible after the fact?
    KT

  109. Reb Spira, your 6:44 pm comment particularly informs and elucidates on many issues. If its not too much trouble, could you, b’kitzur, describe the position of Rav Auerbach and Rav Bleich, 1991-2008, and how that altered the public acceptance of brain stem death as halachic death, as per Rav Moshe, Rav Tendler, and the RCA. I am doing my best to keep up with the debate here, but there is a staggering amount of information to absorb. 🙂

  110. R. Spira: as always we remain dazzled by your ability to summarize the twists and turns of the responsa, written and oral. I note, however, that new readers may not have seen your corresponding position in respect of receipt of BSD organs. Unless I have missed a change, my understanding is that you are machmir on both donation and receipt.

  111. shachar haamim

    R’ Spira – can you please explain why your “safek of pikuach nefesh” on safek chayei shaa overrides the vaday chayei kiyum on the other side? especially as (in most jurisdictions) the donor has agreed to save a life by surrendering his organs (i.e. even if pikuach nefesh it is still “heroic” suicide which is permitted to save possibly one and certainly multiple lives)?

  112. Shachar,
    It is relatively uncommon for the donor to have agreed in advance. The usual case is that there is no indication and the family agrees to donate.

  113. “It is relatively uncommon for the donor to have agreed in advance. The usual case is that there is no indication and the family agrees to donate.”

    Really? I’m surprised. I would have thought that with organ donor cards and declarations on driving licenses and living wills and the like there would be more donors agreeing in advance.

  114. shachar haamim

    First of all I have to agree with Joseph Kaplan – there are many indicators of agreement in advance. Even a default yes to donate/active opt out regime is a form of agreement – if you don’t opt out you have agreed. This is no different than the US opt out regime on anti-spam.

    Second of all I’m not sure that it’s really germane to the question of “heroic suicide” by agent. For all intents and purposes the relatives act as guardians for the BSD patient and I have no doubt about the validity of an apotropus for terminally ill individuals

  115. Shachar (and Joseph), by most juridictions, I thought you meant the US. AFAIK, there is no default yes anywhere in the US, and the check off on licenses is not used that freuqently and referred to less. The only ones who are asked are the family. It is up to them whether to honor such wishes as may have been expressed. (I am not aware of any case where the patient documented explicitly that he did _not_ want to donate organs. I am therefore not sure what would happen in such a case, but I am pretty sure that it would be left to the family in this case and that organs might still be taken.)
    As to your second point, I think that there is a big difference between a patient who has agreed to have organs taken and a family that agrees after brain death has been declared.
    I should note that I agree with the general point you made to R. Spira and only disgreed with your “especially…”

  116. shachar haamim

    MDJ – what I meant to say was that most jurisdictions (especially the most important and relevant one for religious and traditinal Jews – the State of Israel) have an opt in regime. Therefore most of these cases involve people that signed a card or some other form of document.
    When such document has not been signed I don’t think it is problematic to rely on the apotropsim of the BSD patient in the context of the entire discussion.
    I would think that if someone left explicit instructions NOT to take out any organs such instructions would be honored. I don’t know about other jurisdictions but in Israel with respect to autopsies and transplants the law explicitly grants precedence to the explicit wishes of the deceased over the wishes of the family

  117. shachar haamim,
    All of my comments applied only to the US.

  118. R’ Elliot Pasik, R’ IH, R’ Shachar Ha’amim, & R’ MDJ,

    Thank you for your very kind words. Vihamevarkhim yitbarkhu. Your important responses better clarify the sugya.

    (1) To answer R’ Elliot Pasik’s question: RSZA interpreted Chatam Sofer as positing three criteria of death that must all be fulfilled to treat the patient as definitely dead: respiratory arrest, unresponsiveness like a stone, and circulatory arrest (Shulchan Shelomoh, Erkei Refu’ah II, p. 32). These arrests must be irreversible according to RSZA. In the time of Chatam Sofer, circulatory arrest was never reversible, but nature has changed since the time of Chatam Sofer, just like in the case of an eight-month old fetus (Shulchan Shelomoh, Erkei Refu’ah II, pp. 34-35). [It seems to me that RSZA can be best explained with the principle “yarad choli la’olam” (Megillah 21a) – we are weaker than our ancestors. Our ancestors were so strong that they breathed until they died. People today are weaker and they stop breathing even before they die. See my comments at https://www.torahmusings.com/2011/01/news-links-31/comment-page-1/#comments on Feb. 17 at 11:46 a.m., 2:05 p.m. and 2:59 p.m.] Therefore, after the sheep experiment, RSZA declared: “Me’az ume’olam, nikba moto shel adam al pi hahalakhah keshehu mutal ki’even domem, ufe’ilut haneshimah vihalev pasku lachalutin. Zot bitnai shekol ma’amatzei ha-hachaya’ah alu vitohu, ulichar hamtanah shel esrim ad shloshim dakot”. [S. Spira’s translation: “Since time immemorial, the death of a human being has been established according to Halakhah when he is laying as an unresponsive stone, and the respiratory and cardiac activities have completely stopped. This is true only on condition that all efforts of resuscitation have failed, and after waiting twenty to thirty minutes.”] (Shulchan Shelomoh, Erkei Refu’ah II, p. 26).

    And so, in fundamental opposition to RMF, RSZA believed that Chatam Sofer ruled that continued circulation is a legal manifestation of the last breath taken. See my comments on Dec. 23 at https://www.torahmusings.com/2010/12/death-by-neurological-criteria/ RSZA knew he was contradicting RMF. RMDT specifically wrote RSZA and explained to him that RMF had ruled halakhah lima’aseh in many cases that BSD is dead (exactly as RMDT had testified three years earlier in his 1988 symposium with RHS). RMDT also presented RSZA with his brother-in-law RDF’s testimony. Still, even with RMDT’s and RDF’s eloquent recapitulation of RMF’s approach, RSZA disagreed with RMF, and interpreted Chatam Sofer differently.

    Paranthetically, RSZA also believed, based on the episode of Eli Hakohen, that a person could be virtually decapitated if every brain cell died, even if circulation continued (Shulchan Shelomoh, Erkei Refu’ah II, pp. 18, 26, 40). [RMF and RSZA were in agreement on this paranthetical count, although the extrapolation from Eli Hakohen is actually controversial, as per my comments on Dec. 27 at https://www.torahmusings.com/2010/12/death-by-neurological-criteria/ . ] But unless such decapitation could be demonstrated, RSZA ruled that the continued circulation in a patient was evidence of the legal effect of the last breath taken continuing.

    Accordingly, RSZA considered the status of a BSD patient to be probably dead (safek hakarov livadai) but possibly still alive.

    Still, the questions posed by Dr. Noam Stadlan on RSZA’s interpretation to Chatam Sofer remained. Namely, if neurological death is not death, then what – in essence – makes a human being a human being? Is a beating heart in an ice box also a human being? [Surely not.] These important questions of Dr. Stadlan essentially refuted RSZA. The questions were only answered by RJDB in Tradition 41:2 (Summer 2008), in his article regarding human identity. Human identity halakhically flows from maintaining the same anatomical reality that was born from a human mother. [The sole exception to this is Adam and Chavah, who were human beings because of a Scriptural decree.] Accordingly, as birth is defined either as the emergence of rosho or rubbo from the mother, a person needs both rosho virubbo to maintain the same human identity. [R. Beckerman has catalogued for us other cases in Shas where rosho virubbo is significant: sukkah, mayim she’uvin, beit hamenuga.] Thus, it is distinctly possible that RSZA’s interpretation of Chatam Sofer lacked halakhic credibility until 2008.

    Once RSZA’s interpretation of Chatam Sofer was recognized as legitimate (possibly as early as the early ’90s, possibly as late as 2008), pursuant to the Encyclopedia Talmudit’s interpretation (Vol. 9, p. 267) of the gemara in Shabbat 129a it became permissible to desecrate Shabbat to prolong the existence of a BSD patient. RMF, in IM CM 2:69 (paragraph that begins “harei meforash bitosafot sanhedrin”) axiomatically declares that every time we have a license to desecrate the Sabbath in order to save a human being, it is an *obligation* (and not just a permission) for us to make use of that license and save his life [-evidently by virtue of Leviticus 19:16 – lo ta’amod al dam re’akha-], on a weekday no less so than on the Sabbath. Moreover, Shulchan Arukh YD 336:1 rules that the practice of medicine is a form of piku’ach nefesh. Thus, taken together, I think these sources establish that it is obligatory for all Jews (whether disciples of RMF or disciples of RSZA) to heroically prolong the lives of BSD patients in the post-2008 era. A fortiori, we cannot remove organs from BSD patients.

    (2) To answer R’ IH’s question: Yes, I agree with you. Based on my final paragraph above in my answer to R’ Elliot Pasik, it would seem prohibited for any Jew (and indeed any human being) to register for cadaveric organs because of geram safek retzichah. The prohibition applies for everyone, whether disciples of RMF or disciples of RSZA. We are all our brothers’ keepers, and it makes no difference whether one is a disciple of RMF or a disciple of RSZA. Such an important conclusion, which is essentially condemning to death many patients in acute organ failure, should be confirmed by a conference of Gedolim, and – if so – legislated as the law of the land in every constitutional liberal democracy.

    I recognize this conclusion to be a major tragedy. The BSD patient is most probably dead. According to RMF (concerning whom I have a tradition that “Shekhinah midaberet migerono shel Mosheh) as well as RYBS, the BSD patient is *already* definitely dead. [I accept R. Binyamin Walfish’s testimony.] And here we are contradicting RMF as well as RYBS and we are thereby losing the opportunity to save many patients who are definitively alive but who desperately need organs transplants. But what can we, as citizens of moral conscience, do? “The Torah was not given to ministering angels” (Berakhot 25b). “One who is in circumstances beyond his control, the Merciful One exempts him” (Nedarim 27a). “The Holy One blessed be He does not make impossible demands from His creatures” (Avodah Zarah 3a). There is nothing we can do to save the many patients who are dying from acute organ failure, because we must maintain the existence of the BSD patient out of doubt. To his eternal credit, HaRav HaGa’on RMDT advanced a heroic effort to convince RSZA to accept the joint ruling of RMF and RYBS, but RSZA simply refused to budge, and so our hands our now tied by RSZA. Is RSZA of sufficient stature to challenge RMF and RYBS, and to impose such a massive frustration on all humanity? I never met RSZA, but I think that at least according to the obituary for RSZA published by R. Emanuel Feldman (Tradition 29:3, Spring 1995, pp. 1-4), the answer is yes. Of course, such a wide-sweeping conclusion should be confirmed by a conference of Gedolim.

    (3) To answer R’ Shachar Ha’amim and R’ MDJ’s question: Thank you for excellently highlighting the Tiferet Yisra’el. But leaving aside the question of whether Tiferet Yisr’ael even permits sacrificing a treifah to save a normal patient from natural illness (and here I think Tiferet Yisra’el is inconclusive because of his proof from Nedarim 22a), Noda Bi-Yehudah disagrees with Tiferet Yisra’el. Thus, according to Noda Bi-Yehudah, I cannot kill the treifah, and indeed I must desecrate Shabbat to save the treifah, even at the passive cost of losing the lives of the many normal patients who would be saved by the treifah’s organs. [Parenthetically, in the Chatam Sofer’s responsum we have been discussing, Chatam Sofer himself says (paragraph beginning with the words “mikol makom pashut yoter”) that even when a patient is a gossess and, accordingly, a kohen cannot approach him, if the kohen happens to be a physician, and that kohen physician is possibly capable of rendering medical assistance to save the life of the gossess, he is obligated to contaminate himself and do so. Medical assistance to a gossess is evidently part and parcel of the piku’ach nefesh mitzvah.]

  119. Reb Spira, yasher koach to say the least. You have at least one article inside of you, maybe a sefer, waiting to emerge. You’ll have no problem getting haskomas.

    My overall take on the BSD vs. cardio-pulmonary debate is that it represents one more classic hashkafa fault line between the RCA and the Aguda rabbonim; the American rabbonim and the Israel rabbonim; the risk-taking independent thinkers and those who follow all shitas; those who are pro-self determination and those inclined towards rabbinic power.

  120. shachar haamim

    R’ Shalom Spira – I don’t see why your conference of Gedolim can’t lead to the opposite conclusion and act to codify the support of an organ donation regime. Frankly one can argue that this has already happened – as the 2008 legislation in the State of Israel – the home to the majority of the Jewish people (k’hal yisrael) and most certainly the home to the overwhleming majority of religious and traditional Jews – was passed with the input and blessing of the rabbinate and rabbonim across the spectrum of edot and ideological beliefs.

  121. Doron Beckerman

    Rabbi Spira,
    Your posts are truly awesome. But I seem to have to disagree on the speculative elements in some of them.

    Human identity halakhically flows from maintaining the same anatomical reality that was born from a human mother.

    I don’t think this emerges at all from Rabbi Bleich’s terrific article. If a witch were to kiss a human being a turn him into an anatomical frog, then certainly according to the spatio-temporal contuguity thesis attributed to the Rambam, it would be a human being in every respect. According to the causal nexus thesis attributed to Rashi, one can klehr whether the input of the witch was significant enough to sever the cause-effect relationship between the original human being and the current frog (it probably would suffice).

    So I don’t think this:
    Accordingly, as birth is defined either as the emergence of rosho or rubbo from the mother, a person needs both rosho virubbo to maintain the same human identity.
    is correct.

    [R. Beckerman has catalogued for us other cases in Shas where rosho virubbo is significant: sukkah, mayim she’uvin, beit hamenuga.]

    When I wrote that comment, I indicated that I thought that the rule of ראשו ורובו was merely an extension of רובו ככולו (as in Shechitah, Arba Kosos et al), wherein all of the person is considered present when the majority of him is present, only the head is too significant to be absent from that רוב.
    Later looking back to my notes on Succah, I realzed that I had basis for this from Rashi to Zevachim 26a where another application of ראשו ורובו is presented – vis-a-vis the need for the Kohen to stand in the northern section of the Azarah for קבלת הדם

    רש”י מסכת זבחים דף כו עמוד א

    הכניס ראשו ורובו – בצפון וקיבל כאילו נכנס כולו כדקי”ל בכל התורה רובו ככולו.

    [This resolves the Safek of the Bircas Avraham [Erlanger] to Succah, regarding whether we need the head+the majority of the rest of the body in the Succah, or the majority of the entire person including the head. The second option is correct.]

    So ראשו ורובו is not germane to retention of human identity, and, if anything, the significance of the head (or its contents) alone is granted greater weight from this concept.

    You may ask, if the head is the sole determinant of human identity, why is one not considered in the Succah if only his head is there? I believe that is because any part of the human being attached to and supported by whatever the human being is, is considered part of the human, even if not determinant of his identity (just as one putting Tefillin on his arm is considered as putting it on himself). So we would need all of “himself” to be in the Succah/Bayis Menuga/Mayim Sheuvin/Tzafon, and ראשו ורובו, based on רובו ככולו, means that Halachically all of him is.

  122. R. Spira – I just saw that R. J. Simcha Cohen discusses the Tiferes Yisrael in How Does Jewish Law Work? vol. II. I haven’t read through it all – it’s a very long discussion – but his conclusion is that with BSD, if one has not reached a determination on whether BSD is death, the Tiferes Yisrael’s approach should be adequate to justify rating it as death so that the organs can be transplanted.

  123. shachar haamim

    R’ Slifkin – thank you. Baruch Shekivanti!

  124. shachar haamim

    he spells it out very succintly here.

    http://www.hods.org/pdf/Jewish%20PressÉ.%20Simcha%20Cohen.pdf

    that is precisely the point of the this Tiferes Yisrael – that in R’ Spira’s “conference of Gedolim” to be held as the issue is not clear one way or the other and one can’t be “machmir” one way or the other – b/c to be “machmir” means someone dies, the Tiferes Yisrael’s analysis of the relevant sugyot leads one to the inevitable conclusion to prefer vadai chayei kiyum (possibly multiple) over sfek sfeka double time over of chayei sha’a.

    This is precisely what happened in the State of Israel when the new organ transplant and determination of time of death laws were passed. Ki mitziyon tezei torah and the Jews who unfortunately live in other jurisdictions should follow this lead and support organ donor regimes that even grant precendence for receipt to those who are willing to donate.
    Any person taking a genuine halachic, medical and moral stand must shout out loudly and protest against any claims that it is legitimate to receive even if one refuses to donate on religious grounds. There can be no other solution to this latter issue.

  125. “This is precisely what happened in the State of Israel when the new organ transplant and determination of time of death laws were passed. Ki mitziyon tezei torah and the Jews who unfortunately live in other jurisdictions should follow this lead and support organ donor regimes that even grant precendence for receipt to those who are willing to donate.
    Any person taking a genuine halachic, medical and moral stand must shout out loudly and protest against any claims that it is legitimate to receive even if one refuses to donate on religious grounds. There can be no other solution to this latter issue.”

    Amen Sela!

  126. R’ Elliot Pasik, R. Beckerman, R. Sflikin, R’ Shachar Ha’amim and R’ IH,

    Thank you for your very kind words of response; berukhim tihiyu. Thank you, as well, for your insights that better illuminate the sugya. To paraphrase the gemara in Sotah 40a, “meenee umeenaikhu yitkalass Ila’ah” – from the combined Torah insights of yourselves and myself, even if oppositional, the Name of Heaven is praised.

    (1) RJDB’s identity article begins with the question (on p. 25) of why a human being should still be considered the same human being after 7 years, when every single cell in the person’s body – other than the central nervous system cells – have been destroyed and replaced after 7 years. Indeed, RJDB sets out to explain that “The issue of identity, both of individual identity as well as identity as a member of a species, was certainly a matter of concern to rabbinic scholars” (p. 28). Then, on p. 34:

    “The notion of identification as a member of a species is best summed up in a pithy comment attributed to R. Chaim Soloveitchik. It is reported that R. Chaim queried: Why is a horse a horse? Is a horse a horse because it is a horse or because its mother was a horse? To rephrase the question: Is a horse a horse because it manifests the characteristics that are necessary conditions for identification as a member of the equine species or is a horse a horse because its mother was a horse? R. Chaim proceeded to declare that a horse is a horse solely because its mother was a horse and explained that ancestral identity is the sole factor that determined membership in a particular species. Thus, as spelled out by the Mishnah, Bekhorot 5b, identity as a member of a clean or unclean species is determined by birth and not by distinguishing physical characteristics.”

    Then, on p. 37:

    “Individual identity is retained from the neonatal state through senescence and beyond by reason of spatio-temporal contiguity. That identity is also transmitted to progeny as is the literal meaning of “In place of your fathers shall be your sons.” Thus, identity as a member of a species is simply a concomitant of personal identity. Species identity is one aspect of personal identity and hence is a factor of personal identity passed on by way of a generational continuum.”

    Accordingly, I interpret RJDB’s article as explaining that a human being is human because he was born from a mother and continues to maintain the characteristics of birth. I agree with you, R. Beckerman, that the head is of chief importance in this scheme. But the head itself is not sufficient to be a human; we need a torso in addition to the head.

    (2) Thank you, R’ Shachar Ha’amim, for correctly pointing out “Ki Mitziyon Teitzei Torah”. However, Tosafot to Bava Batra 21a (s.v. Ki Mitzion Teitzei Torah) appear to limit that verse to an era when the Temple exists. Since we do not have a Temple yet, we cannot apply the verse to automatically pasken like the Knesset. I certainly have enormous respect for the Knesset and its distinguished leadership. Still, at least according to RJDB (who also assuredly has great respect for the Knesset), the Knesset is not the same institution as the Sanhedrin. Here’s what RJDB writes in Contemporary Halakhic Problems V, p. 16:

    “Thus, following the establishment of the State of Israel, when it became evident that batei mishpat – the national courts of the State of Israel – could not even attempt to rule in accordance with the provisions of Jewish because the Knesset refused to enact Hoshen Mishpat as the law of the land, Hazon Ish, Sanhedrin, no. 15, sec. 4, declared unequivocally that the status of the Israeli batei mishpat is no different from that of arka’ot shel akum. Despite the fact that the judges are Jews rather than gentiles and despite the fact that they sit under the color of authority of a Jewish state, Hazon Ish ruled that their status was that of arka’ot shel akum because the system of law they impose is not that of the Law of Moses; substitution of statutes and precedents of Ottoman or British law, or even laws of the Knesset for the laws of the Torah, constitutes renunciation of the Torah of Moses.”

    In other words, the Knesset performs a most valuable national and political role for the State of Israel, but is not the Sanhedrin. This brings to mind the witticism RHS relates regarding R. Joel Teitelbam zatza”l who once visited Eretz Yisra’el during election season and saw a Kol Korei announcing “The Gerrer Rebbe says that it’s a mitzvah to vote in the Knesset elections.” When R. Teitelbaum (who was of the opinion that it is preferable to avoid participating in Knesset elections) finally met the Gerrer Rebbe, he respectfully asked the latter “I see from the posters that you have paskened that it’s a mitzvah to vote in the Knesset elections. I must admit I am surprised. What kind of mitzvah is it to vote? A real mitzvah like eating matzah at the Seder?!” The Gerrer Rebbe exhaled with an apologetic sigh and answered “Not exactly; rather, it’s a mitzvah like eating marror”. In other words, the Knesset is not the Sanhedrin, but the Gerrer Rebbe still recognized the important societal role the Knesset plays.

    (3) Thank you, R. Slifkin, for calling our attention to R. J. Simchah Cohen’s book chapter. I will take a look to see if he can refute the Noda Bi-Yehudah (who disputes the Tiferet Yisra’el). [As mentioned in my comment on Feb. 21 at 11:03 a.m. and 3:52 p.m., Noda Bi-Yehudah and Tiferet Yisra’el both have devotees, though Noda Bi-Yehudah appears to have more devotees than Tiferet Yisra’el, and RJDB’s opinion is that Noda Bi-Yehudah’s approach is normative.] The 1995 Jewish Press article by R. Cohen that R’ Shachar Ha’amim brought to our attention (-thank you, R’ Shachat Ha’amim, for doing so-) is scholarly but subject to objection on the grounds that it relies upon multiple sfekot likula, whereas multiple sfekot likula do not exempt us from the mitzvah of piku’ach nefesh (as per Shulchan Arukh Orach Chaim 329:3). Still, I am very interested to see what R. Cohen writes in his subsequently published sefer. This Sunday, I will have an opportunity to see it. I also note that in a recent communication of R. Cohen published on the HODS website (dated Feb. 14, 2011), R. Cohen states regarding Tiferet Yisra’el – “Research is yet needed to analyse the ramifications of his position”. Thus, it does not sound that R. Cohen is absolutely certain that we pasken like the Tiferet Yisra’el.
    http://www.hods.org/pdf/Brain%20Death%20and%20Heart%20Transplants1.pdf

  127. An interesting reality check regarding Kidneys in the US (which may be taken from live donors, so not as complicated as other organs which cannot):

    http://www.nytimes.com/2011/02/25/health/policy/25organ.html

    “Nearly 90,000 people are currently waiting for kidney transplants. In 2009, there were 10,442 kidney transplants from dead donors and another 6,387 from live donors who generally specify the recipient.”

    P.S. R. Spira — quoting R. Teitelbaum in this regard is most ironic. He had no problem when it was his own life being saved by the Zionist regime. Very telling, perhaps, in regard to the BSD debate after all.

  128. Doron Beckerman

    Rabbi Spira,

    The sections you quote contradict you. You are correct that identity is determined by birth, but maintaining those characteristics that one is born with, indeed, whatever those characteristics happen to be, is not a factor at all. The horse is a horse even if he is not (subsequently) a horse, only because his mother was a horse. The physical characteristics are mere accidents that have zero bearing on identity.
    By your interpretation, the following absurdity would emerge – a horse gives birth to an animal looking like a pig. Rabbi Bleich writes that this is, halachicaly, a colt.
    To quote (pg.37)
    “But physical characteristics, even those regarded as species-distinctive such as split hooves or ruminant stomachs, are regarded as accidents— in the philosophical sense of the term—having no bearing upon determination of species identity. Accordingly, if a cow gives birth to progeny having all phenomenological characteristics of a pig such an animal
    is endowed with the halakhic status of a cow in every sense.”

    By your interpretation, were this pig to suddenly develop all the characteristics of a horse, it would no longer be a horse!

    The identity acquired by birth from the mother is permanent and not subject to change by virtue of change of anatomical characteristics.

  129. Doron Beckerman

    One who relies on the Tiferes Yisrael for organ transplantation is saying that one who needs a blood transfusion may, if necessary, slice open a terminal cancer patient and take his blood. As RSZA writes: לא יעלה על הדעת.

    There is a difference between where someone is forcing you to take a life (which, somehow, is what Ulla thought was being done to him – he was coerced to make the statement of זיל פרע ליה or he would be killed) versus saving your life by someone else’s by your own initiative, which is Assur even if the other side only has חיי שעה. See Zichron Shmuel (Rozovsky) 83:14,15 for a clear explanation of this distinction.

    Saying otherwise is Am HaArtzus.

  130. “One who relies on the Tiferes Yisrael for organ transplantation is saying that one who needs a blood transfusion may, if necessary, slice open a terminal cancer patient and take his blood. ”

    At best, that’s like saying that one who relies on a shitta in one situation is saying that it can be relied upon in every situation. But R. Cohen’s point is that it should only be relied upon in this situation.

    But in fact your analogy is totally off. This situation has numerous advantages over that of Ulla or your terminal cancer case. One is that it’s safek chayey sha’ah versus vadai chayey sha’ah (according to some). Another is that, contrary to the way in which you described it, it’s not “saving your life by someone else’s. The choice is being made by the person dying – and there is a big difference in halachah between choosing to die in order to save others, and killing someone else in order to save others. The latter is forbidden; the former is heroic (in certain circumstances).

    So you have someone who is, at best, safek chayey sha’ah, choosing to die in order to save several others who are chayey olam. Kal v’chomer the Tiferes Yisrael would apply in such a case – and that those who are not certain that brain stem death is death should be able to rely on him.

  131. (By the way, of course I am aware that there are other chilukim that can be made; however I am not convinced that they are significant.)

  132. Doron Beckerman

    Rabbi Slifkin,

    You are misunderstanding. I’m not saying that one relying on the TY for the terminal cancer case is PROPERLY extrapolating from the TY, i.e. – that applying what he says to the case of the terminally ill cancer patient is an apt analogy. What I am saying is that what Rabbi J. Simcha Cohen says, applying the Tiferes Yisrael to brain death, is just a bad analogy, as bad as applying it to a terminal cancer patient. The TY is referring ONLY to when you are being forced, not to taking the initiative of saving your life by killing another. The TY was not an Am Haaretz. It has no bearing on our case at all, period.

    Whether one may decide to die to save another, again, has NOTHING to do with the TY.

  133. Shachar Ha'amim

    Doron – like I pointed out earlier nowhere does the TY says that his distinction applies only to cases of “force” or “force majeure” or “ones”. Your question is the proverbial “why don’t we allow sick patients without health insurance to rob pharmacies” question? it is a red herring or a straw man. Obviously we can’t allow anarchy and we don’t tax people at 100% of their earnings to buy AIDS cocktails for the indigent who will otherwise die without them. This is why the Yerushalmi is explicit that Chamas is the 4th bigie of “yeharog ve’al yaavor” – and why R. Shlomo Kluger in his tshuvot interprets the Bavli this way also.
    However, despite the violation of performing Chamas to save lives, one can certainly envision a system that allows some deprivation of property rights in order to save lives. Just look at the Gush Katif “expulsion” and many of the halachic justifications for it (I call it expulsion b/c the process was manipulative, undemocratic and ignored the clear will of the voters – but one can certainly envision an eminent domain regime that would permit this)
    Here too with organ transplants – no one is suggesting that hospitals start to collect organs from the sick and dying – even if the TY position could theoretcially support such a view. However, in a clear chayei kiyum vs. sfek sekfeka of chayei shaa or death case, it is clear that the pikuach nefesh of the recipients can outweigh any of the concerns for pikuach nefesh of the safek chayei kiyum/safek met. Furthermore, in the context of the health care “system” the people/government can give priority to certain life saving devices/treatments/drugs/regimes at the expense of others. It is like a triage situation writ large.
    So it is perfectly legitimate to allow organ donations based on the TY- even a regime which would default to allow to donate if there is no immediate family available and/or no written indication of the BSD patients wishes (as is the case in Israeli law)
    I want to add for R’ Spira that my suggestion re: the knesset laws wasn’t trying to grant halachic supremacy to a knesset law. What I was saying was that those two particular laws – as well as the implementation thereof – were done in coordination with the rabbinate, outside rabbinical/medical experts and the chachmei hador. The Israeli regime allows one to “opt out” and oppose organ donations. But don’t tajke if you are not willing to give!

  134. Doron – R. Cohen specifically addresses your suggestion of why the cases should be different, and argues as to why that chiluk is not relevant.

  135. Doron Beckerman

    Rabbi Slifkin:

    Rabbi Cohen addresses why the Minchas Chinuch’s chiluk, in context of making this distinction on behalf of Rabbi Yishmael, doesn’t necessarily apply to Shmuel, who we pasken like. True enough.

    Rabbi Cohen then proceeds to say that this means that we don’t hold of this distinction lehalachah. But this is very bad methodology. The question is whether the Minchas Chinuch was forced into making this distinction only because of Rabbi Yishmael, or whether the distinction is a true one regardless of who must subscribe to it (Rabbi Yishmael), and who might subscribe to it (Shmuel).
    The correct answer to this question is that this distinction is absolutely true regardless of whether one is forced into it or one might say it. And the proof is that the Minchas Chinuch himself utilizes this distinction Lehalachah (re a non-Jew), and proves it from the Rambam and (earlier) from the Shulchan Aruch!

    The only hetter for killing the Tereifah (sans volunteering), to save one’s own life, is if one is forced to. The alternative, i.e., that one may save oneself by killing terminal cancer patients, as RSZA wrote, is absolutely Lo Yaaleh Al Hadaas.

    See the Zichron Shmuel I cited above and then get back to me.

    Shachar,

    The TY doesn’t spell out that that is what he meant outright, but that doesn’t mean it isn’t true. Saying that one may actively kill to preserve one’s own life when not under duress is simply Am Haartzus, or, in RSZA terminology – Lo Yaaleh Al Hadaas.
    See the Zichron Shmuel I cited and get back to me.

  136. Doron Beckerman

    By “sans volunteering” I don’t mean that this is necessarily a Heter, what I mean is that there is what to discuss.

  137. Please see article of Rav Naftoli Bar-Ilan in Assia 83-84,5769 who brings down Yerushalmi Terumot 8:9 and other sources that a treifa may decide beforehand under certain circumstances to give his life even if he does not hold BSD IS CLINICAL DEATH.

  138. Leon Zacharowicz MD

    A few comments:
    1) There are major authorities in halacha who will discuss this complicated topic, but not in the media. They are accessible. Many have given shiurim at the annual Jerusalem yarchei kallah on medical halacha (www.j-c-r.org, click on “yarchei kallah”.
    In addition to presentations by Rabbis Drs. A.S. Abraham, Avraham Steinberg, and Mordechai Halperin, elsewhere, in the yarchei kallah
    I’ve had the privilege to directly learn this sugya from leading halachic authorities such as Rabbi Aharon Soloveitchik ztl, Rabbi Mordechai Eliyahu ztl, and yibadel m’ch’le’chaim Rabbi Bakshi Doron, Rabbi Zalman Nechemiah Goldberg, Rabbi Simcha Bunim Lazerson (author of MISHNAS CHAYAY SHA’AH, an important sefer on this topic, culled from his relative, Rabbi Shlomo Zalman Auerbach ztl), Rabbi Hershel Schachter, Rabbi Moshe Sternbuch, Rabbi Mordechai Willig, Rabbi Yitzchok Zilberstein.

    A very distinguished non-haredi rabbi told us–and we have this on tape–that Rabbi Y.B. Soloveitchik ztl forbade discussion, in a shiur, of a topic less sensitive than this one. It is beyond me how so many who claim to adhere closely to the Rav’s views and piskei halacha would disregard him on a matter of such grave communal import to the Rav.

    I close by again respectfully suggesting that those who are truly interested in learing this sugya, engaging in milchamta shel Torah, and asking our leading halachic authorities–in a befitting manner, of course–pointed questions, should contact us and join us at any of the numerous yarchei kallahs we hold worldwide.

    I am personally saddened that many have chosen to “shoot the messenger” and launch personal attacks. This is a matter of halachic debate. Intellectual honesty demands that we admit that there is a huge gap between many of the authorities, and that many authorities’ views are in conflict with modern secular medicine’s values.

    Even for those of us who remain “divided” (which is silly, since we have no reason to be divided, as this debate is way above our heads), We recently had a one-day program on end-of-life issues in Brooklyn, on much more pressing issues.

    There are very strong trends in medicine to withdraw care, even in the face of family opposition, as well as to starve patients, deny them antibiotics, and worse.

    We need to find ways to counter these dangerous trends.

    I welcome those interested in these new battles, which pit orthodox Jewish families of all persuasions against hospitals and doctors whose disdain and condescension for our beliefs is evident to all, to contact me, via Rabbi Student, or via http://www.j-c-r.org.

  139. Shalom Aleikhem Dr. Zacharowicz,

    Thank you and yi’yasher kochakha for the excellent case you have presented. I am in awe from the heroic efforts – both in the beit midrash theatre and the beit cholim theatre – you have (successfully) orchestrated to champion the mitzvah of piku’ach nefesh. And, indeed, I agree with you that we are obligated to medically extend the life of gossessim, as per the analysis of RJDB in Benetivot Hahalakhah III, pp. 161-178. Thank you for your spiritual (as well as medical) leadership in this sacred cause. Chazak uvarukh tihiyeh.

    Regarding RYBS’s directive of “kevod E-lo(k)im haster davar”, I don’t know for certain but I am speculating that may have been a hora’at sha’ah (ad hoc directive) for a particular situation he was facing. Generally speaking, other than the subjects identified by the Mishnah in Chagigah 11b (viz. prohibited marriages, the Kabbalah surrounding Creation, and the Kabbalah surrounding Ma’aseh Hamerkavah), all subjects are worthy for public Torah study. We are very proud of the perfect Torah that G-d has given us – “Torat Hashem Temimah”. For this reason, I commend R. Asher Bush for publicizing the RCA report on the internet, and I commend you as well for your valuable insights to this sugya. The more discussion of words of Torah the better – both in terms of the mitzvah of learning Torah, and in terms of the mitzvah of saving lives (which seemingly includes saving BSD patients, because “safek nefashot lihakel” as per the gemara in Shabbat 129a). [It is true that R’ Daat Y has correctly cited R. Nafali Bar Ilan’s important article that permits self-sacrifice of a BSD patient for the sake of saving others, but this is counterbalanced by RSZA’s refusal to permit BSD self-sacrifice for the sake of saving others, as explained in my comments to Prof. Resnicoff’s article on Feb. 15 at 12:13 p.m. And so, here too, “safek nefashot lihakel” is seemingly germane. (R. Moshe Sternbuch’s compromise position between R. Bar Ilan and RSZA – to allow a Beth Din to countenance BSD self-sacrifice on a case-by-case basis, is certainly intriguing and merits an RCA paper sequel. I have already identified specific questions R. Bush should present to R. Sternbuch in explaining his approach.)]

    I also congratulate you on the implicit message in your comments which deserves highlighting. Namely: Every Jew is encouraged by the Torah to be both chareidi (as per Rashi to Shabbat 86b, s.v. didaigei) and modern (as per Rashi to Deut. 6:6, s.v. asher anokhi metzavkha hayom). The values of being chareidi and modern co-exist in beautiful harmony in the service of HKB”H.

  140. Shachar Ha'amim

    Dr. Zacharowitz – I thank you for your words and admire your efforts to help Jews who, rachmana litzlan, find themselves in chutz laaretz at the behest of medical institutions and systems that are governed by non-Jewish approaches to life and death.
    and I have no illusions about the fact that these trends can – and do – influence the Israeli medical system which services the majority of Jews world-wide and the overwhelming majority of traditional and religious Jews to whom jewish law is important when making such decisions.
    That being said, the pieces by Rabbi Safran and Prof. Resnicoff (and other like that) which actively support the “yes to receive; and no to donate” position DO NOT HELP YOUR CAUSE. If anything, your note only strengthens the arguments that for those who have adopted a “no to donate” position – should as a matter of public policy (e.g. mipnei eiyvah) also affirm that it is wrong to receive.
    Receiving also steepens the slippery slope you are concerned with. It’s not enough to say “oh well, they did it anyhow, etc.”
    I think that this should be obvious enough.

    Doron – I don’t think that the simple reading of the TY is Am Haratzus, and bemchilas kavod RSZA I know of many knowledgeable and learned people who did not reach the conclusion “lo yaaleh al hadaat”, and others who even if they did are clear that such statement will apply to a goses but not a BSD which is a sfek sfeika

  141. Doron Beckerman

    Who are those people who think that the TY held that one may kill terminal cancer patients to save one’s life? Saying so is, Bemechilas Kvod anyone who says it, Am Haratzus. Not all “simple readings” are simple readings.

    RSZA – Lo Yaaleh Al Hadaas
    R’ Shmuel Rozovsky – Ain Shum Safek.
    Others who have written Sefarim on the topic of Pikuach Nefesh and Yehareg V’al Yaavor – Pashut UBarur, Yishtake’a Hadavar V’lo Yemaeir, and similar Leshonos.

    So who is the counterweight?

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