May the Brain Death “Controversy” Die a Dignified Death
(see the introduction to the symposium)
Rabbi Aaron E. Glatt, MD
Rabbi Aaron E. Glatt, MD, is President/CEO and Professor of Medicine at St. Joseph Hospital in Bethpage, New York, and Assistant Rabbi at Congregation Anshei Chesed and the Young Israel of Woodmere. A magid shiur for many years and an internationally popular lecturer on medical ethics and other halachic issues, he is the author of Visiting the Sick and Women in the Talmud.
There has been a bizarre, unfortunate and hurtful conversation taking place in the public domain (including every imaginable forum) regarding the halachic viewpoint on Brain Death. This has undoubtedly been spurred by a comprehensive halachic work of great effort and significance that was recently published through the Rabbinical Council of America’s Va’ad Halacha. Written by wonderful and accomplished talmidei chachamim, it takes its place in our beautiful “yam shel Torah” with many other fine halachic works, including those that strongly disagree with it.
Having cared for patients, been at their bedside as a physician and clergyperson, and sadly at times had to pronounce their death, I think it is very unfortunate that the ensuing debate from this critique has not produced a greater kiddush Hashem. And even more regrettably, it has engendered the opposite.
It would be arrogant of me, despite my rabbinical position and many years of medical practice, to try and elucidate the halachic questions and answers regarding Brain Death. Other, much more qualified individuals (no false modesty) have already done so. Suffice to say, to me, brain death is a very clear medical and halachic issue. Great gedolim have ruled on each side of this controversy. This controversy does not, and cannot, have a simple scientific resolution, despite what anyone may claim. Science does not and cannot answer metaphysical questions. The definition of death according to science is however open for debate, and can change by popular vote of the appropriate academies or respective legislative bodies.
On the other hand, halacha is immutable, although its ramifications, based upon the available facts, may change. The “halacha lema’aseh” may in fact be different today than years ago for many issues, because of technological advances and/or better understanding of the problem. Halachic analysis requires taking the best scientific evidence available, and using the halachic process to provide “lema’aseh” answers to real questions posed. Based on this unbiased straightforward approach, indeed the only possible current resolution to the Brain Death halachic controversy is: “Eilu ve’ailu divrei Elokim chayim, these and those are words of the living God”. There simply is no overriding clear cut halachic reaction that all gedolim agree is the correct practical response. And that is the one incontrovertible fact that seems to be forgotten amidst all the tumult. Therefore it is very sad for me to see this beis medrash “controversy” itself take on a life of its own.
Why have I spoken up now? It is extremely difficult for me to remain silent when I see gedolim disparaged in the lay press (or worse, by other rabbis/talmidei chachamim) because of a presumed lack of either halachic or medical knowledge. None of the eminent poskim quoted on either side of this controversy would ever pasken a shailah without speaking with knowledgeable physicians who actually treat and care for such patients. A posek MUST obtain state of the art medical information, upon which they then pasken. Rav Hershel Schachter has often said that “da’as Torah” does not give a person the right to pasken something he does not understand or have knowledge about. I have heard from my rabbeim that the Rav (HaRav Y.D. Solovetchik, zt”l) took a watch apart in shiur one day to understand its physical workings so he could pasken a shailah regarding its use on Shabbos. People forget that physicians disagree, and our understanding of science is not foolproof. Contradictory medical opinions will lead to different piskei halacha.
However, strong differences of opinion should never culminate in strong language against individuals, regardless of how wrong one believes their position to be. Beis Shammai and Beis Hillel argued about even greater practical questions of their day, questions that affected the core of Jewish life – yet I defy anyone to find a single offensive personal castigation by these “ba’alei machlokes” against another individual. Because their machlokes was never personal – it was a machlokes lesheim shamayim, not a machlokes lesheim personal aggrandizement or secondary gain.
Rav Schachter has also stated many times to me that not every person (or rav) is necessarily entitled to an opinion. Having knowledge in one area of science or halacha does not automatically provide expertise in another area. How much more so (kal va’chomer), then, the need for individuals to refrain from proffering opinions on matters about which they are not qualified. And the vast majority of Jews are simply not qualified to render a halachic opinion on brain death.
A very undemocratic viewpoint, but one I heard echoed many years ago in a class by Rav Moshe Dovid Tendler. One of the students commented that the Taz appeared more correct to him regarding a particular halacha. Rav Tendler quickly responded – “the Shach is not losing any sleep” because you agree with the Taz. One cannot simply vote and count up how many people think or “feel” that either opinion is correct in the Brain Death controversy – it is an exercise in futility, even if all the voters have the title Rabbi or Doctor in front of their name. While politicians may do this, “Acharei rabbim lehatos”, in last week’s parsha, it does not mean we should poll the electorate and pasken accordingly.
It is especially sad to see individuals state that the gedolim quoted in the RCA paper (some of whom are my rebbeim, rabbanim of great wisdom and humility with whom I have personally discussed medical and halachic questions with in depth) do not possess the medical knowledge or access to such. With all due respect, having heard numerous medical misstatements by rabbanim and other halachic lecturers, neither “side” has expertise that the other side doesn’t.
It is a diminution of kavod shamayim for anyone to automatically assume, simply based upon a PhD or other degree, that either side of this machlokes leshaim shamayim has knowledge that the other side lacks. There are simply clear halachic differences of opinion. Each rav (and lay person) should use their posek (rav) to answer such practical questions as they unfortunately occur.
Why are acrimony and chillul Hashem part of this conversation? Who let the Satan in our batei midrash? Why and under what halachic basis are we allowed to incite Jews and non-Jews against those who halakhically disagree with us?
May it be the God’s will that the brain death “controversy” die a dignified death, and that the subject be theoretical Torah and not practical guidance.
(Next: Dr. Kenneth Prager)
However, strong differences of opinion should never culminate in strong language against individuals, regardless of how wrong one believes their position to be.
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On a personal level I agree with this statement, however it seems to me halachic history is filled with some very, very sharp rejoinders between individual authorities (but I’m sure R’ Glatt is not losing any sleep over my agreement or disagreement :-))
KT
Dr Glatt has written a piece whose general spirit I agree with.
“halacha is immutable, although its ramifications, based upon the available facts, may change. ”
I am not sure that is universally accepted-there are those who hold that Judaism is eternal-, .However innovations in Torah were part of the halachik process from the start.
Our masora has multiple meanings and responds to the given times. Judaism in all its application should not be considered eternal. Rather, the halakhic process is eternal and its application is time bound.
That’s it? I was looking forward to a red meat, roasted potatoes, shot of scotch op-ed. I wanted Pat Buchanan, and I got President Obama.
I’m not really sure what personal castigation he is referring to. If he means the whole “morally untenable” claim, that was arguably not personal (even though some interpreted it that way) and in any case he doesn’t address the substance of it here. Does eilu v’eilu mean you can’t express disagreement on a moral issue? Eilu v’eilu and therefore we all have to sit quietly and not strongly and actively advocate for a position? (The advocacy is, of course necessary in the view of some, because the default position in Orthodoxy always seems to be reactionary)
“Beis Shammai and Beis Hillel argued about even greater practical questions of their day, questions that affected the core of Jewish life – yet I defy anyone to find a single offensive personal castigation by these “ba’alei machlokes” against another individual.”
Perhaps coincidentally, I was just last night learning Tosefta Hagigah 2:12 in which talmidim of BS and BH have an argument that ends with one essentially telling the other to shut up, “bi-nezifah” (alt. girsa: “bi-ge’arah”). I wonder whether that meets the challenge above.
More generally, as Joel Rich points out, there is a strong tradition of very harsh language between baalei machlokes. (Think milchamos vs. baal hamaor.)
I generally agree that some things have been said in this debate that probably should not have, and there has often been more heat than light, etc, but I don’t think claiming that fierce controversies are abberational in halachic history is either necessary or accurate.
>Beis Shammai and Beis Hillel argued about even greater practical questions of their day, questions that affected the core of Jewish life – yet I defy anyone to find a single offensive personal castigation by these “ba’alei machlokes” against another individual.
How about when Beis Shammai armed themselves and killed members of Beis Hillel? Yerushalmi Shabb. 9a, תנא ר’ יהושע אונייא תלמידי ב”ש עמדו להן מלמטה והיו הורגין בתלמידי ב”ה. תני ששה מהן עלו והשאר עמדו עליהן בחרבות וברמחים Even read metaphorically, we’re presumably not talking about soft words, especially when one considers that Beis Hillel was lauded for its approach toward the view of Beis Shammai, which was conciliatory.
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“On a personal level I agree with this statement, however it seems to me halachic history is filled with some very, very sharp rejoinders between individual authorities (but I’m sure R’ Glatt is not losing any sleep over my agreement or disagreement )
KT”
Agree with Joel and if Dr. Glatt would not lose sleep over your agreement or disagreement I can assure you that a fortiori he wouldn’t lose sleep over my agreement or disagreement.
“A very undemocratic viewpoint, but one I heard echoed many years ago in a class by Rav Moshe Dovid Tendler. One of the students commented that the Taz appeared more correct to him regarding a particular halacha. Rav Tendler quickly responded – “the Shach is not losing any sleep” because you agree with the Taz.”
The above story to me would be an example of how a Rebbe should NOT talk to talmidim-a Rebbe, Rav should never be scarcastic to talmidim -one can see the disastorous consequences of such behavior by looking at the story of R yehoshua ben Prachaya and otto haish.
“It is a diminution of kavod shamayim for anyone to automatically assume, simply based upon a PhD or other degree, that either side of this machlokes leshaim shamayim has knowledge that the other side lacks. ”
The mere fact that one has smicha or serves in any position even a RY does not necessarily mean that they have more knowledge than the other side. The machlokes should be evaluated by the power of each sides arguments.
“Rav Schachter has also stated many times to me that not every person (or rav) is necessarily entitled to an opinion. Having knowledge in one area of science or halacha does not automatically provide expertise in another area. How much more so (kal va’chomer), then, the need for individuals to refrain from proffering opinions on matters about which they are not qualified. And the vast majority of Jews are simply not qualified to render a halachic opinion on brain death.”
Would RHS state that for example that only those who are expert in Jewsih and non Jewish theology should have a halachik opinion on permissibility of dialogue with nonJewish religions? Of course not-probably the only recent gadol who had extensive knowledge of nonJewish religions was the Rav. The Rav would even read Vatican pronouncements in the original Latin-does that mean that those who disagreed with the Rav such as RMF or RAK had no right to disagree with him because they were not experts in Christian theology?
R. Gil: I don’t know why others are nitpicking the post instead of responding to it in substance: this was, simply, a waste of space. Platitudes about how wonderful the people who wrote the paper are, or how inconceivable it is that the poskim deciding don’t have access to information, are a) patronizing and b) completely unnecessary in their own right.
Does R. Glatt really think that anyone here would be making allegations about problems with the writers of the paper without evidence from the paper itself? Does R. Glatt really think that anyone would claim that some of the poskim paskening on this issue are ill-informed, without evidence thereof – their sterling character nonwithstanding? It was precisely this attitude that allowed child abuse to exist in yeshivos for our recent history, and it’s this kind of condescending insensitivity to the nature of the claims being made that gets people to start looking elsewhere for leadership.
What did this contribute to the discussion? We’re all aware that there exist a group of people that think that those on the pro-brain-death-criteria side are inciting the press, those outside our community, etc; was R. Glatt’s expertise as both a professor of medicine and a rabbi utilized in any way for this post? Did anyone here really need to hear, yet again, the argument you’ve made something like a hundred times so far in the comments? I simply don’t understand why you thought it was worthwhile to post this.
I was really (really really) looking forward to this symposium; I really hope that this is the last of the posts to contribute absolutely nothing to the discussion.
good point made by Jon!
I have a Freudian interpretation of this article. I think Dr. Glatt’s medical knowledge makes him feel down deep that the BSD folks are correct about the science. However, as a student of RHS, he cannot bear to disagree with him. So what does he do to solve the dilemma? Write a nice plain vanilla piece that’s nice to both sides and allows him to continue to deal with the conflict that resides in his own mind about this very weighty subject.
Just a theory…
Bravo Jon_Brooklyn
I agree with Jon_Brooklyn. Unfortunately, there was no substance in this post, which is unfortunate considering the credentials and professional experience of its author.
Where’s the beef?
Y”K to R. Glatt for his op-ed. I look forward to the rest of symposium.
This op-ed is very nice in theory. We should all acknowledge the legitimacy of a diversity of opinion on this issue, and other issues.
But I think this op-ed (perhaps unintentionally) ends up avoiding the issue by making a general enough statement that it’s impossible to disagree. That lack of disagreement is then taken as a sufficient response to critics of either side, even if it hasn’t really answered anything. (I think there’s an old Peanuts strip about this).
But even on a general level I think R. Glatt’s position ends up muddying the waters even more. He claims that there is a deficient understanding of medical issues on both sides, and that this should lead all participants to have a healthy dose of humility about their own side. That’s all very well and good in theory, but surely that is not the proper response when a practical issue requires a practical resolution.
Instead, if the brain-death camp feels that the circulatory death camp is lacking in medical knowledge, it should point out the specific ways in which that is so and request answers. The reverse is true as well. On this very blog, Noam Stadlan has done just that. He asked specific questions that require answers.
Also, I notice a continued theme employed here regarding the source of the acrimony in this debate. Many seem to assume that the brain death proponents who sharply criticize their opponents do so simply because their interlocutors do not accept brain death. While this may be the case for some – and if so, should be rightly condemned – I don’t think this is generally the case.
Where the harsh criticism comes in is when the anti-brain death camp wants to accept organs from others, but not, in turn, donate any organs themselves (because this would be murder). This issue adds a strong moral/ethical component to an otherwise purely legal/theoretical debate. This particular issue has nothing to do with respecting others’ opinion. It has to do with maintaining intellectual and moral consistency, even when doing so is disadvantageous.
R’jon,
A call for civility before the main debate couldn’t hurt. We all await the main event.
KT
Three points to this paper, it seemed to me:
1. Can’t we all just get along.
2. Only the experts can have an opinion.
3. As there are experts on all sides of this issue, there should be no controversy, only a conversation(?)
I must conclude that Jon_Brooklyn is right that this was not substantive to the issue and that joel rich is right that this is a call for civility before the main debate. At least a call for civility to the experts. No one is losing sleep about us little people.
Why is the JewishPress version different? http://www.jewishpress.com/pageroute.do/47095.
All rhetoric, no substance. A very disappointing beginning.
The positions of Rabbis, on both sides of the debate, are not immune to criticism just because they spent from 1 to 4 years studying laws of shabbat, niddah and kashrut. The rabbis are not being challenged, it is their position.
If a position is based on faulty medicine or if a conclusion is morally reprehensible, it needs to be pointed out even in public. It is 2011 and not the middle ages. We live with the gentiles and our rabbinic opinions impact the gentiles and the gentiles have a right to know what Rabbis are telling their followers. We have seen time and time again where fear about the shanda for the goyim have caused rabbis to look more seriously about the wider implications of their positions.
Rabbi Glatt gives me the feeling he wants every in the sandbox to play nice and not to throw sand. I did not gain anything from his post.
When someone writes ‘elu v’elu..’, do the next words have to be ‘v’halacha k……’. In other words, are the poskim on both sides willing to acknowledge that the other side is a valid expression of Halacha and that halacha l’maaseh it is ok to act on it? If that were the case, then Rabbi/Dr. Glatt is quite correct that this has been sadly blown out of proportion. However, my perception of Rabbi Bush’s paper, and I think one shared by many, was that it was a step in an attempt to remove ‘brain death’ from the list of halachically valid options. This would be done either formally, or by convincing rabbonim by presenting only one side of the discussion.
R’ Jerry,
Yi’yasher kochakha for your insights at 5:29 p.m. and 5:33 a.m. You are correct that Dr. Noam Stadlan has cogently challenged RJDB on this website with important questions that require answers. But I believe I have provided the answers.
I agree with you we must be morally consistent, not only for PR reasons (important in and of themselves) but because geram sfek retzichah is yehareg vi’al ya’avor. Unless we can demonstrate that RSZA was totally mistaken in his interpretation of Chatam Sofer or (paradoxically alternatively) that RSZA was totally correct in his interpretation of the Noahide Code, no Orthodox Jew will ever be allowed to register for organs. Our society will have to find other ways to improve the healthcare enterprise. [My favoured option is to only grant semikhah to those who simulatenously possess a medical degree (like R. Glatt), thus ensuring that we will dedicate more and more resources to healthcare.]
“But I believe I have provided the answers.”
Y”K to you for your willingness to engage the issue, especially Noam Stadlan’s questions. But if I recall correctly Dr. Stadlan pointed out the (major) flaws in your answers, so, unfortunately, the kashya remains.
Thank you, R’ Jerry, for your kind words. Please, R’ Jerry, enlighten me as to what flaws Dr. Stadlan found in my answers. There are lives on the line in ICUs everywhere as we speak.
Via e-mail from R. Dr. Aaron Glatt:
I read with interest the various comments regarding my article. Might I trouble several of the posters to re-read Rabbi Student’s opening remarks. He stated (emphasis mine, with my comments added thereafter):
“This TorahMusings.com symposium on brain death has two goals, neither of which is resolving the debate“.
{Why anyone expected me to even try and resolve the debate therefore is difficult to understand. And I stated from the outset that I have nothing to add to what has been published and re-written from a halachic or scientific view. My role was simply to address the debate itself.}
“The first is to conduct a calm and respectful discussion, lowering the temperature of debate so we can remain a united community even while disagreeing“.
{I believe my article certainly attempted to do this. So much so, that it generated feedback that it was too nice, parve, vanilla. Thank you. One private commenter told me I was a “rodeph shalom” – thank you so much!}
“The second goal is to present to the public experts who voice their learned opinions in a non-technical fashion. They may or may not convince you that they are right but they will hopefully convince you that reasonable people can disagree on this complex topic.”
{Again, I believe I authored exactly what I was asked to do – explain why people inciting (rather than debating) on this subject should please re-assess their position. And to convince you that reasonable people can disagree with each other nicely on this complex topic. If this was not what you were expecting, and you were hoping that I would add fuel to the fire, I am sorry to have disappointed you.}
For those interested, I am personally conflicted on this subject, and have not been able to halachically resolve this issue to my satisfaction. It is very complex, and I am unable to see a clear resolution for either psak. I am very happy mention that HaRav Aharon Lichtenstein, shlita, and many other great poskim, also feel this way (not that I mean to imply in any way that I deserve to be mentioned in their company). Indeed, some of the gedolim in the “cardiac camp” have paskened lema’aseh against accepting Brain Death for exactly that reason – it is a safeik retzicha, and they feel obligated to pasken lechumra.
And finally, I never suggested, nor would I want the halachic debate to be stifled. The Talmud Bavli methodology of reaching the halacha la’amito thrives on strong tough analysis and debate. But that debate was only in the beis medrash, and not in the secular and non-Jewish media where comments are taken out of context and the potential for serious harm to Jews worldwide trumps any benefit those postings and writings intended. My title was that the “controversy” should die a dignified death – but let the machlokes lesheim shamayim continue in the appropriate dignified and scholarly manner, amongst those qualified to voice their opinion.
To further clarify the sugya, permit me to cite R. Eliezer Melamed’s words (from his responsum published on the HODS website, p. 2 of the responsum):
“In this sugya, the great responsibility of my teacher R. [Avraham] Shapira zatza”l was manifest, for despite his nature to avoid adjudicating between different views, when there was no choice and the responsibility was foisted upon his shoulders, he “entered the thickness of the beam” and decided halakhah lima’aseh. To our sorrow, there are rabbis who sometimes – out of fear of disputation – prefer to be stringent so as to avoid challenging those who are already stringent, who prefer out of zeal to condemn and cause trouble.
But my teacher did not tremble, and after he adjudicated to be lenient he was powerful regarding his opinion. And once I spoke to him regarding the reasoning of those who disagree, and he said to be in astonishment: “How can it be, after it was proven that even after literal decapitation the heart does not necessarily stop, that people are still stubborn to insist that a beating heart is a sign of life?”
These comments reveal the reality in the Torah world before RJDB’s 2008 article. With RJDB’s article, the answer to R. Shapira’s rhetorical question has finally been furnished. Circulation is potentially a sign of life in a mammal when the mammal has a head and the majority of its body.
“Just a Yid on February 4, 2011 at 9:57 am
Why is the JewishPress version different? http://www.jewishpress.com/pageroute.do/47095.”
Thanks for pointing out the differences-the question is who made the changes and why.
Although Prof Kaplan wrote “Lawrence Kaplan on February 4, 2011 at 10:11 am
All rhetoric, no substance. A very disappointing beginning.”
The differences call out for analysis-if JP made the changes why-but more interesting if Dr. Glatt made the changes why is the same message not appropriate for both audiences.
“My title was that the “controversy” should die a dignified death – but let the machlokes lesheim shamayim continue in the appropriate dignified and scholarly manner, amongst those qualified to voice their opinion.”
As one who has no opinion on the halacha involved-I find the attempt to stifle viewpoints “amongst those qualified to voice their opinion”-the determination of what opinions will be determinative will be decided over course of time-at this point we should listen to all arguments-we may reject them immediately but the arguments should rise and fall on their merits. Of course, currently, lemaaseh I would personally ask someone who I believe is one who would fit Dr. Glatts “amongst those qualified to voice their opinion”
Since R. Ovadiah Yosef has declared that brain death is halakhic death shouldn’t that be the end of the debate? In other words, shouldn’t everyone acknowledge that those who support brain death yesh lahem al ma lismoch. It is therefore offensive that less distinguished rabbis than R. Ovadiah (and R. Shapiro, R. Eliyahu, etc. etc.) are trying to convince the Orthodox commmunity that the pro-brain death side is not valid and should be rejected. It is just as offensive as when there were lesser rabbis trying to convince people that R. Moshe Feinstein’s pesakim were not valid and people should accept them.
correction, last sentence should read
It is just as offensive as when there were lesser rabbis trying to convince people that R. Moshe Feinstein’s pesakim were not valid and people should NOT accept them.
This symposium is excellent. May I suggest that all of the essays be published together so that the Torah observant public will have an opportunity to read the same in one compendium that is not dependent on the web?
Let me clarify, there is nothing wrong with a rabbi, any rabbi, offering his halakhic opinion on a matter, even when it disagrees with a great figure like R. Ovadiah. But to mount a concerted effort to show that R. Ovadiah’s position is incorrect, and those who rely on it are murderers, is something that should only be done by someone at R. Ovadiah’s level. We have a kelal in halakhah that one can rely on a great figures pesak. So why doens’t the RCA just forget this whole matter? Why did they have to publish their document? Why not let people who want to rely on R. Ovadiah and the others do so? In other words, there was no need to open up this issue for debate, since both sides have al mah lismoch.
Gil: “The first is to conduct a calm and respectful discussion, lowering the temperature of debate so we can remain a united community even while disagreeing“.
R’ Glatt: I believe my article certainly attempted to do this. So much so, that it generated feedback that it was too nice, parve, vanilla. Thank you. One private commenter told me I was a “rodeph shalom” – thank you so much!
Me: While I certainly am perplexed by the rhetoric that came from the debate of weeks past and agree it was excessive – and I haven’t commented on this issue beyond where I feel capable, which is not much at all- it seemed to me what you were doing was trying to have a calm discussion about the halachic elite having a calm discussion. Not a calm discussion about the topic of brain death in halacha.
Gil: The second goal is to present to the public experts who voice their learned opinions in a non-technical fashion. They may or may not convince you that they are right but they will hopefully convince you that reasonable people can disagree on this complex topic.
R’ Glatt: Again, I believe I authored exactly what I was asked to do – explain why people inciting (rather than debating) on this subject should please re-assess their position. And to convince you that reasonable people can disagree with each other nicely on this complex topic. If this was not what you were expecting, and you were hoping that I would add fuel to the fire, I am sorry to have disappointed you.
Me: Gil’s message states there would be a “dumbed down” discussion on the matter done in a way that would seek to lower the rhetoric. Actually the later half wasn’t clear either … a high level op-ed by someone you passionately disagree with can have made no attempt to seek peace but would create respect. You did not try to address the brain death matter at all or present your learned opinion. To me, that appears to be a difference.
R. Spira, you have made excellent arguments and erudite points that unfortunately are spread in comments on many posts. If I may suggest collating them into a position paper, it will much easier to see your position in toto, rather than address bits and snippets. I think the last discussion we had, we discussed the technically realistic but quite improbable scenario where an isolated head can be supported by machines. This head would be able to think, daven, see, hear, have a normal EEG, but would be considered dead under your concept because it is only rosho without the rubo. By the way, in considering the concept of decapitation in general, it is interesting to think about what exactly is decapitated. Obviously the body lacks a head, but from the point of view of the head, decapitation hasn’t occured, the body has been removed. Since previously heads could not
be supported without the body, this viewpoint was moot before the advent of artificially supplied circulation
R’ MBS,
Thank you and yi’yasher kochakha for your important comments. But does Moreinu ViRabbeinu HaRav HaGa’on R. Ovadiah Yosef really believe a brain dead patient is dead, or has he issued contradictory statements on the matter, as I have indicated? See Yalkut Yosef, Hilkhot Shabbat IV, p. 276.
You say “We have a kelal in halakhah that one can rely on a great figure’s pesak.” I generally agree, but absolutely not for piku’ach nefesh. Rav Ashi was certainly a great luminary (-he’s on the Rambam’s list of 40 exponents of the Oral Torah), but Rav Ashi’s ruling was overridden by the gemara in Shabbat 129a because the dispute concerned piku’ach nefesh. We are all responsible for one another’s lives, and we need to act in a manner of consensus regarding who is alive and who is dead. Moreinu ViRabbeinu HaRav HaGa’on RMDT’s decision to declare a particular Monsey brain dead patient dead impacts on me (S. Spira), because I am responsible for the life of that Monsey Jew just as much as HaRav HaGa’on RMDT is. Moreinu ViRabbeinu HaRav HaGa’on RJDB’s decision to declare a brain dead Yorkville Jew alive and thereby prevent him from donating eight organs to save eight other lives impacts on me (S. Spira), because I am responsible for those eight others lives. “Lo ta’amod al dam re’akha” requires me to be concerns for every person, whether he leaves in Monsey, Yorkville, Montreal or Albequerque. There cannot be two different doctrines of death in a functional Orthodox Jewish community.
If we could create a situation where a decapacitated head could be kept alive with artificial circulation, where the person could speak and think as in the previous comment, obviously this person would be alive. No one would say that you can kill him because there is no body.
R. Ovadiah’s position is clear. It is not important what his earlier viewpoints were. He came to a clear decision a couple of years ago. R. Amar has consulted with him and based on R. Ovadiah’s pesak, R. Amar has publicly explained why they support brain death. On the HODS website you can see R. Amar’s shiur on the topic given at R. Ovadiah’s yeshiva (actually, R. Yitzhak Yosef’s yeshiva). He gave the shiur to explain why R. Ovadiah now accepts brain death.
“So why doens’t the RCA just forget this whole matter? Why did they have to publish their document? Why not let people who want to rely on R. Ovadiah and the others do so? In other words, there was no need to open up this issue for debate, since both sides have al mah lismoch.”
I tend to agree.
“It is just as offensive as when there were lesser rabbis trying to convince people that R. Moshe Feinstein’s pesakim were not valid and people should NOT accept them.”
There is no requirement for anyone to follow RMG-to the extent other than for his talmidim that his psak is followed it is because of persuasive authority.
Certainly, there have been occasions where lesser Rabbis found problems with his piskei tshuva-they would often then bring their problem to their Rebbe. Interesting fact that when they would describe their Rebbes psak they would not indicate that they went their in the first place becasue of problems they had with RMF’s analysis and that even RMF paskened differently. RMF was universally respected NOT universally followed.
If a brain dead person does not breathe, how is he considered alive by anyone? The only way he breathes is through a respirator.
>Via e-mail from R. Dr. Aaron Glatt:
>I read with interest the various comments regarding my article. Might I trouble several of the posters to re-read Rabbi Student’s opening remarks. He stated (emphasis mine, with my comments added thereafter):
With all due respect, why doesn’t he just post it here? I hope he doesn’t, chalilah, consider himself above the fray tha he needs to email Gil his comment.
I apologize for the nitpick, but in my opinion part of posting on a blog is the willingness to engage. Emailing something to be posted by someone else is no easier than entering the text in the box, signing and hitting post comment. So it does come off a little bit like Rabbi Dr. Glatt holds himself above the medium in which he agreed to participate.
Thank you, Dr. Stadlan, for your very kind words. Vihamevarekh yitbarekh. Yes, you are correct, I am not entirely certain what would be the status of the “talking freestanding head” supported on an artificial circulatory machine, as per my comment in https://www.torahmusings.com/2011/01/brain-stem-death-sources-comments-questions/comment-page-2/#comments
on Jan. 26, at 2:35 p.m.
R’ MBS,
Thank you for your kind response and clarification. You say it is not important what ROY’S earlier viewpoint was. But that earlier viewpoint is published in a book which is studied in the local Kollel Torah Mitzion beit midrash in the Montreal neighbourhood where I live (address: 5700 Kellert). The gemara in Ketubot 19b requires eliminating a mistaken book in one’s possession. So, if ROY has retracted his previous view, he should issue a Kol Korei requiring everyone (including Montreal Jews) to immediately place Yalkut Yosef, Shabbat IV, in genizah. Maybe ROY wants to issue such a Kol Korei, I honestly don’t know. Can any reader of this website living in Har Nof maybe knock on ROY’s door and pose him the question?
Rabbi Spira,
The points you put forward and Noam Stadlan’s rebuttals are diffused across several threads. Maybe Gil can collate them, or something like that. The last one I remember was your theory of rosho v’rubo, which Dr. Stadlan refuted with his question about the machine-supported head (which, if I recall, he said has already been tried with a monkey?).
In a thread prior to that I had also raised questions about your theory, albeit not from a medical perspective. I can’t remember where that thread is, but I’m sure someone could dig it up.
Oh no, I see Noam Stadlan already said pretty much everything I had to say.
To add one point: I don’t think the question is a problem for your theory. I think it undermines it completely. It’s very clever, and you should be commended for at least trying to grapple with the question. But ultimately I think it was very speculative to begin with, and this is just the final nail in the coffin.
But again, Y”K to you for engaging.
quite disappointing.
why does one need to be a rabbi and doctor to write such a parve piece with no substance? I know a number of high school students who could have written the same article on “gadol hashalom”.
Every time an author changes his mind you have to put his earlier books in genizah? I guess we should throw out the Rambam’s Mishneh Torah since in certain teshuvos the Rambam tells us that his new position is not in accord with the it says in the MT
But in this case R. Ovadia Yosef has issued a kol korei, or the equivalent of it. He had his people publicize his view in the Israeli press and had Rabbi Amar discuss the matter all over Israel, most recently in his pesak that the soccer player who was brain dead could have his organs harvested.
you can delete the posts – but the fact is that people now know that at least one of the 8 people refused to make a contribution if a ceratin other rabbi would be included. that is illegitimate
I’m sorry about that – I didn’t realize that I was looking at the second post of the series and not the intro. you left them. good!
R’ Jerry,
Thank you for your kind words and your important response. Also, I apologize and ask your forgiveness for not addressing you with sufficient reverence in my comment on Feb. 4 at 11:33 a.m. Thank you for your lifesaving kindness in forgiving me.
Even so, I must humbly disagree with your conclusion. You say that because of the answer I have given Dr. Stadlan regarding the “freestanding talking head” (viz. that the talking head presumably constitutes artificial intelligence according to Torah law, and should be regarded as dead), this refutes RSZA’s interpretation of Chatam Sofer. Why? After all, the Halakhah is clear that if someone’s head is inside the sukkah, but his body is outside the sukkah, he is not fulfilling the mitzvah of yeshivat sukkah. A head without a body is insufficient to constitute life. Although it would have been surprising to Ravina and Rav Ashi that a talking head be considered dead, it would have been equally surprising to Ravina and Rav Ashi that decapitated sheep could give birth to a live lamb. So, if you are refuting HaRav HaGa’on RSZA because of Robert White’s monkey experiment, you must also refute HaRav HaGa’on RMF because of the sheep experiment.
The answer, of course, is that neither RSZA nor RMF were refuted by either of these experiments. Neither experiment is ultimately relevant, because no mammal can be considered alive without rosho virubo.
And the proof is in the pudding: RMF himself (who did rule that brain death=death, prior to RSZA’s materialization on the scene with a countervailing analysis) declares that a decapitated head is dead, even if the head keeps on gesticulating (IM YD 2:174, sec. 1, penultimate paragraph). Thus, RMF himself would not grant any credence to Robert White’s experiments.
R’ Anonymous,
Thank you for your kind response and the analogy from Rambam’s responsa. Maimonides explicitly wrote in his responsa that he was retracting that which he previously ruled in the Mishneh Torah. HaRav HaGa’on ROY never stated that he was retracting that which he previously ruled regarding the definition of death. Thus, I believe it would be helpful for someone to reverentially knock on ROY’s door in Har Nof and politely ask ROY to reconcile his seemingly contradictory rulings.
“Anonymous on February 4, 2011 at 1:48 pm
I apologize for the nitpick, but in my opinion part of posting on a blog is the willingness to engage. Emailing something to be posted by someone else is no easier than entering the text in the box, signing and hitting post comment. So it does come off a little bit like Rabbi Dr. Glatt holds himself above the medium in which he agreed to participate.”
This comment has got to be the winner in the Most Ironic Comment Ever category. Someone who refuses to post his name and insists on remaining anonymous calls Rabbi Dr. Glatt to task for failing to demonstrate sufficient “willingness to engage”!!!!
For the record, as someone who has never met Rabbi Dr. Glatt and as someone who knows little about the metzius of Brain or Cardiac Death and the halachah surrounding it, I found his post helpful and well-written in the sense that it helps me understand that the issue is not nearly so clear as many [especially on this board but elsewhere as well] would like us to believe. I, a person who does not understand the various technicalities unless I devote myself to the cause for more time than my schedule can possibly allow for, was very confused and prone to believing that BD advocates are really correct and that argument otherwise demonstrate an inability or unwillingness on the part of certain prominent poskim to delve into the sugya properly. What Dr. Glatt has stated is that it is truly a difficult sugya and neither side, in his opinion, has conclusively proved their point. To this am haaretz, his point was illuminating and very much appreciated.
>This comment has got to be the winner in the Most Ironic Comment Ever category.
I disagree completely. All know that blogging is a medium in which many people comment anonymously (you are not less anonymous than me, Mark). Rabbi Dr. Glatt is not me and he’s not you; he’s the author of this blog post.
It doesn’t matter. The writers did not commit to answering comments. If they had to, no one busy would write for the symposium.
“HaRav HaGa’on ROY never stated that he was retracting that which he previously ruled regarding the definition of death. Thus, I believe it would be helpful for someone to reverentially knock on ROY’s door in Har Nof and politely ask ROY to reconcile his seemingly contradictory rulings.”
For the 3rd or 4th time. ROY did state that he no longer held to his earlier position. This was made public all over Israel. His family made this public, R. Amar made this public, the Shas party made this public. Why do you have a problem comprehending this?
>It doesn’t matter. The writers did not commit to answering comments. If they had to, no one busy would write for the symposium.
The question wasn’t why didn’t he get involved in the give and take, but why did he email you to have you post a comment for him.
“I disagree completely. All know that blogging is a medium in which many people comment anonymously (you are not less anonymous than me, Mark).”
Correct. That is why I’d never criticize someone who chose to remain anonymous or fail to participate in the discussion in the manner in which I consider ideal. Rabbi Dr. Glatt put his name/reputation on the line here in a manner that you did not. Thus, I find it in poor taste to criticize him in a personal manner especially when you clearly would never risk that sort of criticism as is evidenced by your anonymity.
I have been grappling with the “severed head on life support” issue that Dr. Stadlan raised for a few weeks. It is a great question.
It is appropriate to point out, that, according to Dr. Stadlan’s thesis, cutting away someone’s fully functioning legs and trunk, keeping his head on life support, should not constitute murder.
One’s hand, leg, trunk, heart, etc. are not really human hands, only parts connected to a human being. Stabbing someone in the heart should perhaps be geram retzichah, not retzichah, since it is only causing the inevitable cessation of circulation to the brain by attacking a part connected to the human being, not actually directly destroying the human being. These are troubling conclusions.
It is very noteworthy that Rav Waldenberg vehemently opposed heart transplants in brain dead patients, and nevertheless judged a person’s identity as determined by his brain. Apparently, a severed head and separate trunk, both maintained by life support, would be viewed as a human life maintaining its identity (the head), and a human life which has lost its identity (the trunk) – since if that trunk were to be reattached to the head and go on living, it would be a wholly human entity.
>Correct. That is why I’d never criticize someone who chose to remain anonymous or fail to participate in the discussion in the manner in which I consider ideal. Rabbi Dr. Glatt put his name/reputation on the line here in a manner that you did not. Thus, I find it in poor taste to criticize him in a personal manner especially when you clearly would never risk that sort of criticism as is evidenced by your anonymity.
It may or may not be in poor taste – but it’s blogging. That’s how it’s been done for the past decade. No one loses the right to an opinion because they’re anonymous, Mark, if indeed you are Mark.
Stabbing someone in the heart should perhaps be geram retzichah, not retzichah, since it is only causing the inevitable cessation of circulation to the brain by attacking a part connected to the human being, not actually directly destroying the human being.
Upon further reflection, it would probably be retzichah in any event. כח ראשון of withholding access to oxygen or blood circulation would be רציחה.
More accurately – severing a connection to oxygen or blood circulation.
Rav Beckerman, thank you for seeing my point.
R. Spira, If the head can talk but is considered dead, it would violate. “lo hamatim yehallelu ka”. On a more practical level, I would suggest that rosho verubbo can actually be considered somthing akin to a “shiur” of a human being for quantitative purposes, but it is not a qualitative statement or a definition of a human. In addition, I haven’t seen the use of rosho verubbo generalized to end of life issues. Finally, the concept of rosho verubbo also fails when considering conjoined twins if there are two head and only one body, unless the rubo can be shared.
ראשו ורובו appears in a number of contexts – one (or two) of the 18 gezeiros in Shabbos הבא ראשו ורובו במים שאובין; Entry into a בית מנוגע; and, famously, Succah.
IMHO, ראשו ורובו is simply an application of רובו ככולו, (such as by ארבע כוסות, שחיטה et al) but the head is too significant a limb to allow us to consider that the person is כולו in contact with מים שאובין/ in the house/Succah without it. IOW, it is really רובו – but the Rosh must be part of that Rov.
Let’s not forget the gemara in Sanhedrin. As soon as the head comes out of the pregnant woman, we can’t abort it. This shows that the head is of great significance.
It only shows that the head comes out first. If the leg typically came out first the Gemara would likely say that once the leg appears you can’t abort it.
no, because the Mishnah says if the greater part comes out you can’t abort, and the gemara also says the head, in other words, head alone = greater part. Someone has the status of a human if EITHER the greater part or the head come out.
Thank you, Dr. Stadlan, for your important response. You are right: “lo hametim yehalelu Kah”. Similarly, Maharsha to Sanhedrin 65b associates the power of speech with the soul. However, upon further reflection, it has now occurred to me that a freestanding head would not speak. According to Wikipedia (“Vocal Apparatus”), speaking involves air pressure from the lungs creating a steady flow of air through the trachea, larynx and pharynx. Thus, a freestanding head could not speak, since the freestanding head lacks lungs to create the air pressure necessary to drive speech. In the experiments that Robert White conducted, the transplanted monkey head was able to make facial movements, but presumably did not emit “monkey speech” (i.e. the usual sounds monkeys produce to communicate).
In the case of the conjoined twins described by Menachot 37a, you are correct that RJDB states (Bioethical Dilemmas I, pp. 291-292) that the same body is halakhically shared by both heads. Thus, it seems that (at least for RJDB) the same “rubo” can indeed be shared by both “rosho” entities. RJDB compares this to the gemara in Chagigah 2b regarding a half-emancipated slave. The same body belongs to two legal entities. On p. 310 of the same volume, RJDB cites R. Yosef Sha’ul Nathanson of applying this to a case of a person who has married one lady of conjoined sisters. Consummating the marriage is problematic because the groom would be simultaneously cohabiting with two sisters.
That said, I could see a counterargument that at least according to Shu”t Avnei Nezer YD 399, sec. 3, who writes that the essence of the human being is the cranial unit, perhaps a freestanding head would be treated as alive out of safek for the Avnei Nezer’s opinion. [RMF did not appear to think so, for he ruled in IM YD 2:174 that a decapitated head is dead even if the head keeps on moving. But RMDT mentions in the 1988 symposium with RHS that RMF didn’t always have all the Acharonim available, and so it’s possible that RMF didn’t take into account this particular Avnei Nezer. On the other hand, in defense of RMF, maybe he understood Avnei Nezer as saying that the essence of the human being is the cranial unit provided there is also a reality of rubo accompanying the rosho.]
R. Spira, you are correct, there would be no sound, but the person could mouth words, and think the thoughts. there are those who cannot speak or make sounds for other reasons, are you making the claim that they are dead? I am not a halachic expert in this area, but I think that thinking the words, and mouthing them, even if no sound comes out, would qualify as praise. In thinking about it, if the trachea was cut below the vocal cords(at the base of the neck, the vocal chords are about mid neck), air would pass through the vocal cords, and sound could be produced(similar to Christopher Reeves who had a special tracheostomy tube that allowed him to speak. He only could speak when the ventillator was expelling air, so his cadence was quite distinctive.) Since the nerves to the vocal chords would not be affected, speech would be possible.
Rav Dr. Glatt tries to frame this debate as “eilu v’eilu,” yet no one seems to argue that other people don’t have the right to Pasken. Determining the time of death is one of the most important Shailos of our generation, and indeed should not be handled by those not qualified to do so.
In addition, Rav Dr. Glatt accepts the RCA report as legitimate, although it is the report itself, that started this controversy to begin with.
Thank you and yi’yasher kochakha, Dr. Stadlan, for your kind words and clarification. If my “rosho virubo” hypothesis of human identity is correct, then because the freestanding head lacks “rosho virubo”, it lacks human identity, and would presumably be an entity of artificial intelligence much like a “golem”. And as for what the halakhic status of a golem actually is, this is discussed by RJDB in Bioethical Dilemmas II, pp. 15-28. His conclusion (-RJDB’s, not necessarily the golem’s) is “there are four distinct views with regard to the status of a golem: Hesed le-Avraham, She’ilat Ya’avez, and possibly Hakham Zvi maintain that its status is that identical to that of a brute animal; R. Zadok ha-Kohen maintains that it is human in every sense; Maharsha and R. Gershon Leiner maintain that only an anthropoid endowed with speech is human; Zofnat Pa’aneah maintains that an anthropoid does not at all have the status of a living creature”.
However, if the freestanding head could speak, we would know (at least according to Maharsha and R. Gershon Leiner) that I am refuted, and that the freestanding head cannot be a golem. Now the question becomes whether merely mouthing words is considered speech for voiding the status of a golem. This requires investigation.
In the case of Mr. Reeves, am I correct in assuming that the tracheostomy tube led into his lungs? If so, the ventilator pushed air into Mr. Reeves’ lungs, and through this fluid dynamic Mr. Reeves could speak (with a distinct cadence, as you indicated). By contradistinction, the freestanding head, having no lungs, would be seemingly incapable of speaking out loud. Am I correct on this?
Regarding the verse “lo hametim yehalilu Kah”: since the gemara in Ta’anit 2a establishes that “avodah shebilev” is tefillah, perhaps the tefillah of a freestanding head would not count, because the freestanding head does not have its own lev. As R. Daniel Reifman suggests in his recent “Text and Texture” article, the “lev” can refer to the torso area in general. Thus, the freestanding head, completely lacking a torso, is incapable of halakhically meaningful tefillah. [Mr. Reeves, by contradistinction, had a torso even while incapacitated.] Tzarikh iyun.
[Of course, I am not oblivious to the paradox that I am trying to support RSZA with an article by R. Reifman endeavouring to refute RSZA.]
sound is produced by air moving across the vocal cords. one could attach an air pump and pump air across the vocal cords and the head theoretically could talk. I dont think you need lungs. I think we are going pretty far afield on this theoretical discussion. 🙂
I also would gently suggest the consideration that ‘avodah sh’balev’ is an expression that does not necessarily have to be understood in a strictly anatomic sense. And, if we are going to understand it in a strictly anatomic sense, we use the anatomic understanding of the time, which is that the heart was the seat of the emotion/understanding, which we now know is the brain.
Just to be absolutely clear: Commenter “Glatt some questions” is not Rabbi Glatt. Someone e-mailed me about some confusion on this point.
I commend Rabbi Dr. Glatt for trying to defuse some of the heated rhetoric on this matter. He is not alone in feeling conflicted and troubled. There are other halachot which trouble those of us who subscribe to what some would consider modern views of morality. I will not detail them here–as a public forum is not the venue for such discussion.
I remain concerned about the motives of those who went to the secular media to attack the RCA paper, and about those who insist on discussing in that and other public forums very sensitive and complex topics–and even disparaging those with whom they disagree. I find it telling that many who do so remain anonymous.
All this reminds me of the debate between Bohr and Einstein in the 1920s in Copenhagen, over quantum mechanics vs. relativity theory. Imagine we had the internet then. We could all then have posted whether we thought Einstein was right, or reactionary, or held “morally untenable” views, and do the same for Bohr. Of course, since virtually none of us are physicists, our “opinions” would be meaningless.
Furthermore, as I’ve noted elsewhere and even on this site, Rabbi Soloveitchik ztl expressly forbade discussion of a less sensitive topic in medical halacha–yet so many of those who consider the Rav to be their spiritual and halachic mentor continue this very public discussion of a most sensitive topic, on the internet, in a public forum viewable by billions.
Have you no seichel? I suggest we continue this discussion in the beit medrash, with lomdus, in the traditional fashion–and publicly show respect to those halachic authorities who might differ with our personal inclinations, preferance, or sense of what is and what is not “morally untenable.”
Respectfully,
Leon Zacharowicz
Thank you and yi’yasher kochakha, Dr. Stadlan. I think, in summation then, it emerges that there is a reasonable safek to regard the freestanding head as a “golem” and not a living human being. This safek is sufficient to defend and uphold the safek legitimacy of RSZA’s reading of Chatam Sofer.
Shalom Aleikhem Dr. Stadlan,
I apologize – I did not offer you a sufficiently substantive reply on Feb 9 at 11:15 a.m. to the excellent points you raised on Feb. 7 at 10:29 p.m. What I suppose I should say is that Shulchan Arukh Orach Chaim 25:5 recognizes the importance of the human beart as distinct from the human brain. [I.e. that passage of Shulchan Arukh identifies the brain as the seat of the neshamah, but the heart as the seat of the inclinations and thoughts.] Thus, “avodah shebilev” may possibly be interpreted to require a real torso, and the talking head – lacking a real torso – may possibly be a golem. Yes, you are correct – we can construct a virtual torso for the talking head (including an air pump to facilitate speech out loud, as you indicated), but since this is not the same torso as with which the talking head was born, one might argue that the talking head has lost its “human identity” and is now an artificial golem.
It is presumably based on this passage in Shulchan Arukh that RMF writes in IM (YD 2:146, s.v. aval barur ufashut) that it is not the nose which enlivens the human being, but rather the brain and the heart which enliven the human being.
http://www.hebrewbooks.org/pdfpager.aspx?req=919&st=&pgnum=247&hilite=
Of course, I accept the oral testimony of RDF, RMDT, RSR, RMT, Dr. Eidelman and I affirm that RMF definitely ruled that brain death=death. [Likewise, I accept the oral testimony of RBW and I affirm that RYBS definitely ruled that brain death=death.] But RMF’a theoretical analysis, apparently based on Shulchan Arukh, provides us with a potential answer of why the talking head is a golem, in potential defense of the countervailing opinion of RSZA.