Dr. Kenneth Prager / In the wake of reignited interest within the halachic community in organ donation, Rabbi Student asked me to describe the process of declaring a patient brain dead and removing organs for donation. I have authorized him to reproduce my answers to his specific questions, which I believe have halachic implications. When a patient is pronounced brain dead at Columbia University Medical Center the family is informed of this finding and they are explained its significance.  It should be noted that the patient is legally dead in the United States if brain death has been determined.

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

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The Process of Organ Donation

(see prior posts intro, I)

Dr. Kenneth Prager

Dr. Kenneth Prager is Professor of Clinical Medicine at Columbia University College of Physicians and Surgeons and Director of Clinical Ethics and Chairman of the Medical Ethics Committee of Columbia University Medical Center.

In the wake of reignited interest within the halachic community in organ donation, Rabbi Student asked me to describe the process of declaring a patient brain dead and removing organs for donation. I have authorized him to reproduce my answers to his specific questions, which I believe have halachic implications.

When a patient is pronounced brain dead at Columbia University Medical Center the family is informed of this finding and they are explained its significance.  It should be noted that the patient is legally dead in the United States if brain death has been determined.

The family is approached by an organ donor network representative asking if they are willing to allow their loved one to be an organ donor. If the family agrees to organ donation the brain-dead patient will be evaluated for suitability to be an organ donor. If he is found to be suitable and if there are appropriate recipients then the organs are removed in the operating room, after which the ventilator is removed and the body becomes available for burial.

If the family refuses to allow organ donation they are told that in view of the fact that their loved one is legally dead that he will be removed from the ventilator. If the family objects, whether for religious or other reasons, reasonable accommodation to the family’s beliefs is made and the patient is not removed from the ventilator. Instead, the patient remains on the ventilator until cardiac arrest occurs of its own, usually in a matter of days. New York and New Jersey are among the states that legally require such accommodation. In 38 years at Columbia, I have never seen a brain dead patient removed from a ventilator against the wishes of the family.

When a brain dead patient/donor is taken to the operating room, his chest is opened and the blood is drained from his body by an incision in a large vein in the chest. A cold saline solution is then circulated throughout the body to preserve the organs. Thus the person is “murdered,” per the terminology of those denying brain death, by the cessation of all circulation even before any organ is removed, by having all the blood drained from the body.

In 10-15% of cases of brain dead organ donors, only a single organ is removed and is selected for use of only one compatible recipient. Thus the Jewish recipient of the single organ donor may be the only reason the donor is taken to the operating room and “murdered” for the removal of the organ.  While it is true that the brain dead patient will be removed eventually from the ventilator, the immediate act that is carried out, namely the exanguination of the donor in the operating room and the removal of the vital organ, is done specifically to save the life of the single–sometimes Orthodox Jewish–recipient.

When multiple organs are taken, the heart is generally removed first but the person is already dead even by circulatory criteria at that point. Therefore, when multiple organs are removed, no single recipient causes the “death.” However, about 10-15% of brain dead donors donate only one organ. Thus there is a significant chance that an organ recipient is the proximate cause of the “murder” of the donor who is saving his life.

(Next: Rabbi Moshe D. Tendler)

About Aaron Glatt

57 comments

  1. What of the “process of declaring a patient brain dead?”

  2. thank you for this post with substance and material that i think is being presented at least on hirhurim for the first time, but . . .

    ” Rabbi Student asked me to describe the process of declaring a patient brain dead and removing organs for donation.”

    where’s the rest of the essay answering the first question here?

  3. When a brain dead patient/donor is taken to the operating room, his chest is opened and the blood is drained from his body by an incision in a large vein in the chest. A cold saline solution is then circulated throughout the body to preserve the organs.
    ==================================================
    Does this solution preserve the organs only through its refrigeration properties (i.e no oxygen transfer)? Would circulatory cessation apply when we invent true “artificial blood” and replace someones entire blood content with artificial blood?
    KT

  4. Those looking for a discussion of brain death in this post are misreading the introduction (understandably). Dr. Prager is describing the organ donation process for aptinet who are declared brain dead, as opposed to those who donate after cardiac death (a rather different process). This was the purpose of mentioning brain death in that context. The sentence could just as well have read “The process for removing organs from patients declared brain dead.”

  5. In the previous post R. Glatt wrote, “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.”

    so does the modern halakhic literature (including the RCA paper) on brain stem death donation (AND receiving) understand the process the way it is described here?

  6. The process of declaring a patient dead based on neurological criteria(brain dead) involves a number of steps: examinations to determine the absence of brain function, confirmatory testing, ascertaining by imaging such as ct that there has been severe damage to the brain, ruling out conditions that could mimic the condition and an apnea test to determine if the patient can breath at all on their own. The American academy of neuology published reccomendations on the specifics in 1995 and updated them recently. I am sorry I can’t link to them at this moment, but they are widely available on the net. Obviously criteria for halachic brain death may be different than a specific set of criteria at a particular hospital, so it is important to examine the set of criteria used in a specific situation.

  7. In 10-15% of cases of brain dead organ donors, only a single organ is removed and is selected for use of only one compatible recipient.

    Maybe this doesn’t matter, but it occurs to me that the fact that a brain dead organ donor has an 10-15% chance of being harvested for a single organ obviously does not translate to 10%-15% of organ recipients (of even specific organs) having organs come from people in those circumstances. Do numbers exist for that?

  8. Just to clarify: Unless I am mistaken, only New York and New Jersey have laws that require religious accommodation. In every other state once the patient is declared dead (which is legal death under federal law per the Uniform Determination of Death Act) the hospital does not have to keep the patient on life support. Depending on the situation they may honor such a request at their own discretion. But this will vary depending on the kind of hospital, whether the patient is taking up a needed ICU bed (and they are always needed) and whether the hospital knows it will have to eat the cost.

    Some people may recall a case in the Washington DC area where there was a conflict between an Orthodox family and hospital over withdrawing life support from a brain dead child.

    Note that even poskim who reject brain death often allow withdrawal of life support if heart failure is inevitable within a matter of days – The two related issues are unfortunately conflated in people’s minds.

    The law regarding brain death should also not be confused with laws that vary by state as to whether physicians can unilaterally withdraw care or refuse to continue to intervene (not the same thing) if they determine treatment to be futile. This is a much murkier area of medical ethics.

  9. He never answered the most important question.

  10. Yi’yasher kochakha, Dr. Prager, for the beautiful essay (-which, I might add, reflects to the credit of all the beautiful essays and comments that have been posted in recent days on this website, contributing to advanced Torah study throughout the world).

    May I ask, Dr. Prager, what would be the hypothetical procedure for declaring someone brain dead and donating organs, if the patient, instead of being on a ventilator, is on an ECMO machine? I am particularly inspired by Dr. Robert Truog’s amazing words on the HODS website “You basically cannot die in an intensive care unit without permission if the clinicians are willing to use ECMO, because with ECMO we can keep anybody alive” (0:45-0:55 into the recording at http://www.hods.org/English/h-issues/YouTube_video%20pages/OrganDonationQA_06.asp )

    [It sort of makes me think… instead of ordering a lulav and etrog for every family of my Montreal Jewish community next Sukkot, maybe we should order an ECMO machine for every member of our community. After all, the mitzvah of piku’ach nefesh is even more important that the mitzvah of lulav and etrog. Halakhic food for thought…]

  11. R. Spira, please keep in mind Dr. Truog’s ‘shita’ as it were on life. Life for him is a biological process. This is actually more extreme than defining life by circulation or cardiac function. Theoretically according to Dr. Truog(and his frequent writting colleague Miller), one cell is the equivalent of human life. Please see his debate with John Lizza in the Kennedy Journal of ethics this past year. This is why Dr. Truog holds that a decapitated body is still alive(he wrote about this recently, I can find the citation if you want)- it still has biological activity. Unfortunately, no one has challenged him to explain how transplants fit into his view.

    An ECMO(extra-corporal membrane oxygenation) machine basically supplies blood flow to the body, and it oxygenates the blood in the process. A person attached to this machine will have circulation as long as the machine is turned on, functioning, and the body has arteries and veins. By the way, it theoretically could supply circulation to a mummy with preserved arteries as well. So if the definition of death is total cessation of circulation, or total cessation of biological activity, then Dr. Truog is correct. On the other hand, sometimes even with the support of the machines the blood pressure cant stay high enough to supply adequate circulation to the body, there can be a myriad of other problems including infections, and ultimately there may not be much functioning tissue that is the recipient of the circulation.

  12. Even in the 10% – 15% cases when only a single organ is removed from the donor, that organ would have been removed anyhow – even if the Orthodox Jew was not the recipient.

    There is always a potential recipient who is close enough of a match with the donor (thanks to anti-rejection medications) so that the very limitted number of donor organs in the US never go to waste.

    Thus, even if it wasn’t removed at 3:07 PM for the Orthodox recipient, it would still end up being removed at 3:07 PM for the next closest match on the waiting list of recipients – which is far longer than donors.

    The person who agrees to become a donor will have his/her organ(s) harvested at the same time regardless of whether or not there is an Orthodox Jew listed as a potential recipient.

    I don’t think it would be intelectualy honest to overlook this crucial point.

    Why didn’t the author of this essay point this out?

  13. Alex,

    Perhaps because it is not obvious that there is an ethical difference when someone else would step in to murder the patient if the assigned person didn’t choose to participate. I grant you could make such an argument, but I don’t see any intellectual dishonesty in the opposite.

  14. Glatt some questions

    The process of declaring a patient dead based on neurological criteria(brain dead) involves a number of steps: examinations to determine the absence of brain function, confirmatory testing, ascertaining by imaging such as ct that there has been severe damage to the brain, ruling out conditions that could mimic the condition and an apnea test to determine if the patient can breath at all on their own. The American academy of neuology published recommendations on the specifics in 1995 and updated them recently.
    ———————————-

    In terms of how a person is declared brain stem dead, I think it’s critical to note that the procedures to do so have become incredibly more accurate and sophisticated in the last 30 or so years, and that the determination of death leaves no question about whether or not a person is brain stem dead. Thirty years ago, it was not impossible that a person who was declared brain stem dead might have been incorrectly diagnosed; today, with the sophisticated equipment used, it is impossible to misdiagnose a patient if the tests are conducted accurately. The cases of a person a generation or two ago “waking up” from brain death were not cases of a patient “waking up” but cases where they were incorrectly diagnosed in the first place. This has unfortunately led to many myths about BSD, and contributed to the anti-BSD argument that we should not be so quick to declare a person brain stem dead.

  15. WITH TODAY’S APPROPRIATE TESTING THERE IS NO DOCUMENTED CASE OF SOMEONE WHO IS BRAIN AND BRAINSTEM DEATH EVER RETURNING TO LIFE.

  16. an interesting well written op ed article by baruch and shlomo brody (one is a professer of biomedical ethics and the other teaches at yeshivat hakotel – so a good combo of medical knowledge and lamdut)
    appear in this week’s forward newspaper: case for organ donation remains solid – link below

    http://www.forward.com/articles/135146/

    this is the type of op ed article/essay expected to see here – cogent and well written eventhough it did not deal with the moral issues of taking but not giving.

  17. hirhurim: were all the writers of this series being ask the same questions? or do you ask different questions to different writers? if so – can you state what the writer was ask to write about and if any 2 or more writers were ask the same question …. its a little confusing to this am haaretz.

  18. In many areas of halacha there is a halachik norm which is not necessarily coincident with the “real world” norm eg removing blood from meat. Why must the definition of death be any different? There may be an halachik definition based upon the appropriate Talmudic sources which sets the standard even though it does not correspond exactly with the scientific definition.

  19. Shmuel. Yes. But it is necessary to see if that is the way it has always been accepted, or if it has actually been based in the science of the time. Also, it is reasonable to expect that the definition will be applied in the same way to all situations that require a determination of life and death of a collection of tissue or person

  20. Lawrence Kaplan

    I agree with Ruvie. As I noted in the Forward comments section, their article is cogent, lucid, and tightly argued.

  21. ,” their article is cogent, lucid, and tightly argued.”
    Agreed-but full disclosure I once had a Succah meal at Prof Brody’s succah when he was living in Brookline-so maybe I’m not objective.

  22. “Thus, even if it wasn’t removed at 3:07 PM for the Orthodox recipient, it would still end up being removed at 3:07 PM for the next closest match on the waiting list of recipients – which is far longer than donors.”

    This is not true. The time of the removal is closely coordinated to the needs of the specific recipient. See this site and in particular the video:

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

  23. “WITH TODAY’S APPROPRIATE TESTING THERE IS NO DOCUMENTED CASE OF SOMEONE WHO IS BRAIN AND BRAINSTEM DEATH EVER RETURNING TO LIFE.”

    And at least in New York, the initial diagnosis of brain death was recently shown to be 100% accurate:

    http://neurology.org/content/76/2/119.abstract?sid=1400b527-d3e2-4b35-914e-f34db2a57f90

  24. “You basically cannot die in an intensive care unit without permission if the clinicians are willing to use ECMO, because with ECMO we can keep anybody alive”

    This isn’t completely true, because there is a limit to how long one can stay on ECMO. (I’m not sure that that limit is; it may be weeks but it certainly isn’t years.)

  25. “ECMO we can keep anybody alive”

    This must be hyperbole, but as such it is somewhat dangerous. ECMO can only keep “anybody” alive if being on ECMO is sufficient to be called “alive.” As far as I know, ECMO cannot prevent or cure fatal infections, for example. (Correct?)

  26. Noam. “it is necessary to see if that is the way it has always been accepted, or if it has actually been based in the science of the time” That is unknowable and speculative unless you can demonstrate that the SAME particular rabbi in the Talmud changed his position based on new scientific information. Outside of the gemmara that deals with the sun going beneath or behind the firmament (and even that is subject to debate) I know of no similar cases

  27. “That is unknowable and speculative unless you can demonstrate that the SAME particular rabbi in the Talmud changed his position based on new scientific information.”

    Heh?

  28. Highly informative article by Dr. Prager.

    Columbia does the right thing by not removing a brain death patient from a ventilator when the family objects.

    The New Jersey statute is actually stronger than the New York regulation. NJ is very specific in prohibiting brain death declaration when there is a religious objection. Here is the NJ statute:

    “26:6A-5. Death not declared in violation of individual’s religious beliefs.

    The death of an individual shall not be declared upon the basis of neurological criteria pursuant to sections 3 and 4 of this act when the licensed physician authorized to declare death, has reason to believe, on the basis of information in the individual’s available medical records, or information provided by a member of the individual’s family or any other person knowledgeable about the individual’s personal religious beliefs that such a declaration would violate the personal religious beliefs of the individual. In these cases, death shall be declared, and the time of death fixed, solely upon the basis of cardio-respiratory criteria pursuant to section 2 of this act. L.1991,c.90,s.5.”

    The NYS Health Department regulation, somewhat vaguely, requires “reasonable accommodation” only to a religious objection to brain death declaration. Here’s the regulation, from 10 NYCRR:

    “400.16 Determination of death. (a) An individual who has sustained either:

    (1) irreversible cessation of circulatory and respiratory functions; or

    (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.

    (b) A determination of death must be made in accordance with accepted medical standards.

    (c) Death, as determined in accordance with paragraph (a)(2) of this section, shall be deemed to have occurred as of the time of the completion of the determination of death.

    (d) Prior to the completion of a determination of death of an individual in accordance with paragraph (a)(2) of this section, the hospital shall make reasonable efforts to notify the individual’s next of kin or other person closest to the individual that such determination will soon be completed.

    (e) Each hospital shall establish and implement a written policy regarding determinations of death in accordance with paragraph (a)(2) of this section. Such policy shall include:

    (1) a description of the tests to be employed in making the determination;

    (2) a procedure for the notification of the individual’s next of kin or other person closest to the individual in accordance with subdivision (d) of this section; and

    (3) a procedure for the reasonable accommodation of the individual’s religious or moral objection to the determination as expressed by the individual, or by the next of kin or other person closest to the individual.”

    “Reasonable accommodation” is susceptible to elastic interpretation.

  29. Fifteen years ago, there was this brain death fight in Queens, where “reasonable accommodation” was the battleground. http://query.nytimes.com/gst/fullpage.html?res=9C07E6D61139F93AA15751C0A960958260

  30. “Thus, even if it wasn’t removed at 3:07 PM for the Orthodox recipient, it would still end up being removed at 3:07 PM for the next closest match on the waiting list of recipients – which is far longer than donors.”

    This is not true. The time of the removal is closely coordinated to the needs of the specific recipient.

    Which means that without any given recipient, the patient’s “death” could have happened slightly sooner or slightly later, depending on the new recipient. Especially when there are multiple recipients, is really possible to say that any specific recipient has causes the donor to be “killed” sooner?

  31. FWIW, I asked Prof. Brody to contribute to this symposium but he declined.

  32. “Which means that without any given recipient, the patient’s “death” could have happened slightly sooner or slightly later, depending on the new recipient. Especially when there are multiple recipients, is really possible to say that any specific recipient has causes the donor to be “killed” sooner?”

    So the argument that Gil is proposing is really one of: if I don’t kill him, someone else will. This is different from saying, they are killing him anyway so I should sign up to potentially benefit after the fact.

  33. No, that’s not my argument at all.

  34. “No, that’s not my argument at all.”

    If it’s not, then I wonder why you asked the question you did — if you aren’t making that argument (or some similar one) then what relevance is there if someone else is there to take the organs if the Jew doesn’t?

  35. Either way, the Jews doesn’t take the organs. The doctors do. At most, it is gram retzichah. Have you seen R. Yitzchak Breitowitz’s response to R. Moshe Tendler’s “hit man” argument? It’s at the end of this PDF: http://www.hods.org/pdf/Breitowitz%20Brain%20Death%20Controversy.pdf

  36. So the question is whether the recipient is the proximate cause to the donor’s death. From what Dr. Prager says, it seems that the preservation of the potential donor’s organs “kill” the donor and not any recipient’s needs. And even without that, any one of multiple recipients cause the death and not a single recipient. Additionally, a recipient does not *cause* the death because the donor would similarly “die” for the needs of the next person on the list. This is all from a halakhic perspective. The moral perspective is somewhat different.

  37. Joseph Kaplan

    “So the question is whether the recipient is the proximate cause to the donor’s death.”

    I don’t think that’s the question. I think the question is whether the recipient participates in the murder of the donor. I read the end of R. Breitowitz’s article which you linked to. So let me change R. Tendler’s example a bit. There’s a person who is hated by many. I know that several of his enemies are in the process of hiring a hit man to kill him. So I decide to hire the hit man. No problem, since if I don’t do it, they will. Or is it still a problem, either halachic or moral?

  38. I don’t know for sure although the situations seem very different because your case does not include certain death. Do you, in general, have a moral problem with the concept of “ein shaliach li-dvar aveirah”?

  39. With regard to murder, we might not fully say ein shaliach li-dvar aveirah. See Kiddushin 43a and Rambam Rotzeach 2:2-4. Hiring an assassin makes you chayav mitah bi-dei shamayaim, and the Rambam calls him a shofech damim (2:2) and rotzeach (2:4). There is a makhloket whether or not one needs to pay the assasin, or if verbal command is sufficient (see Mishneh Le-Melekh) – although this is irrelevant in the case of tranplants, since the recipient (or his insurance) is paying the doctor/hospital.
    The sugya is complex, however, and how it applies here requires fuller analysis. Rav Nevenzahl told me today, by the way, that according to this Rambam, even if people share the costs for paying the assassin, they are all equally chayav mitah bidei shamayim. (I was speaking to him in iyyun, and not discussing organ donation or any other le-ma’aseh application).

  40. Dr. Stadlan and R’ Charlie Hall,
    Thank you very much for the insights and information regarding ECMO. I second Emma’s request for more details regarding ECMO. Maybe HODS could interview Dr. Truog and ask him to elucidate his remarkable assertion that “you basically cannot die in an intensive care unit if the clinicians are willing to use ECMO, because with ECMO we can keep anybody alive”. [Parenthetically, the source for my claim that the purchase of a lulav and etrog should be canceled in favour of purchasing a more important mitzvah item (such as tefillin, or – a fortiori – an ECMO machine), is Shu”t Rabbi Akiva Eger I, no. 9.]

  41. Hirhurim: “Do you, in general, have a moral problem with the concept of “ein shaliach li-dvar aveirah”?”

    No problem with it as a matter of halacha. In a situation where one person hires another person to do something assur for him, halacha needs to determine who is chayyav the specific punishment for violating that issur. But this has little to do with morals and ethics by which we are also bound – a “sholeiach” in this case is wrong, he just isn’t chayyav an onesh.

  42. a “sholeiach” in this case is wrong, he just isn’t chayyav an onesh.

    =========================
    an earthly onesh?
    KT

  43. were the questions posed to Dr. Prager posted?

  44. ‘Especially when there are multiple recipients, is really possible to say that any specific recipient has causes the donor to be “killed” sooner?’

    Did you view the video I linked to?

    You can survive on part of a lung, part of a liver, or part of a pancreas. And in fact there are donations of parts of those organs. But only an entire healthy beating heart from a breathing body is ever transplanted, and the removal of the heart kills the patient according to those who don’t accept brain death as death.

    “Either way, the Jews doesn’t take the organs. The doctors do.”

    So a Jew can receive a heart but a Jew can’t be a transplant surgeon?

  45. Charlie: I don’t see the relevance of your point. When they prep a donor, they “kill” him.

    So a Jew can receive a heart but a Jew can’t be a transplant surgeon?

    Of course, unless he holds from the poskim who permit it.

  46. Leon Zacharowicz MD

    I thank this respected physician for sharing his medical knowledge.

    Someone above stated: “Note that even poskim who reject brain death often allow withdrawal of life support if heart failure is inevitable within a matter of days – The two related issues are unfortunately conflated in people’s minds”

    Which poskim allow withdrawal of life support in a case wherein a patient is considered by them to be alive?

    Also:

    The idea of calling public attention to the nuanced halachic rulings permitting Jews, under certain limited circumstances, to receive organs removed from a “brain dead” patient is an interesting approach, but what positive outcome can be expected from this publicity?

    Will it not be the case that as a result of such publicity, spurred initially by a very few number of people, will only harm the image of orthodox Jews who are constrained by their religious beliefs (requiring them to obey the rulings of their rabbis) and perhaps lead to subtle discrimination, wherein identifiably orthodox Jews will be denied organs?

    Would we consider the acceptance by J Witneses of blood transfusions to be “morally untenable,” or do we only apply such a term to our co-religionists? How about the Buddhists, Moslems, and fundamentalist Christians who do not accept “brain death”: would the acceptance by a member of one of these groups be “morally untenable”?

    I posit that this issue was thrust into the secular media inappropriately, and will serve no useful purpose. Those who follow their rabbis will likely continue to do so, or perhaps those rabbis will now forbid their followers from accepting organs–resulting in the deaths of men, women, and children in our community. Is such a result worthwhile? Why do those who accept “brain death” seemingly feel compelled to shine a bright light on such a sensitive topic?

    Also, I ask this physician and any other readers: Two prominent neurologists noted that about 10% of patients declared “brain dead” were shown to have brain wave activity on EEG (which means that at least 1 square inch of brain cortex was showing activity), yet they called for these “outliers” to be ignored in light of the need for organs. Is their proposal to ignore this fact and perhaps even hide it from families “morally untenable,” or does the end of increasing organ transplantation justify the means?

    Respectfully,

    Leon Zacharowicz

  47. Leon – According to Dr. Steinberg, R. Shlomo Zalmen allowed taking away ‘life support’ (actually a ventilator) from someone who is brain dead even according to the shittot that brain death is not death; see his Encyclopedia of Medical Halacha under ‘brain death’ for more details.

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