Rabbi Moshe D. Tendler / Brainstem death, a.k.a. neurological death: a.k.a. respiratory death, raises the bar above respiratory death by requiring the “total cessation of all brain functions including the brainstem.” This definition is accepted internationally. It conforms fully with the halacha as stated in the Talmud (Yoma 85a) as elucidated by Rashi, “if he appears to have died, no movements are discerned… to ascertain the truth, examine if there is breath in his nostrils. If he does not exhale, he has surely died.” The B.S.D. protocol requires testing to ascertain that the patient does not respond to any stimulus. The neurological exam must affirm: unreactive pupils, no elicited eye movements, no motor response to stimulation, no grimacing, no blink response, no gag reflex, no respiratory movements such as cough, sigh or hiccup. Only after such affirmation the APNEA test is performed to confirm that without the pumping action of the ventilator, there is no autonomous breathing. Confirmatory tests can be performed if required to satisfy those who so demand. These can include a nuclide scan to confirm that no blood is reaching the brain; a test to prove that the brain is not utilizing glucose; as well as others. In truth, the clinical findings of the B.S.D. protocol are definitive such that confirmatory tests are not usually needed.

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

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Brainstem Death is Halachic Death

(see prior posts intro, I, II)

Rabbi Moshe Dovid Tendler, PhD

Rabbi Moshe Dovid Tendler is the rabbi of The Community Synagogue of Monsey. He is a senior Rosh Yeshiva at Yeshiva University’s RIETS and the Rabbi Isaac and Bella Tendler Professor of Jewish Medical Ethics and Professor of Biology at Yeshiva College. He has a Ph.D. in Microbiology and is noted as an expert on Jewish medical ethics.

Brainstem death, a.k.a. neurological death: a.k.a. respiratory death, raises the bar above respiratory death by requiring the “total cessation of all brain functions including the brainstem.” This definition is accepted internationally. It conforms fully with the halacha as stated in the Talmud (Yoma 85a) as elucidated by Rashi, “if he appears to have died, no movements are discerned… to ascertain the truth, examine if there is breath in his nostrils. If he does not exhale, he has surely died.”

The B.S.D. protocol requires testing to ascertain that the patient does not respond to any stimulus. The neurological exam must affirm: unreactive pupils, no elicited eye movements, no motor response to stimulation, no grimacing, no blink response, no gag reflex, no respiratory movements such as cough, sigh or hiccup. Only after such affirmation the APNEA test is performed to confirm that without the pumping action of the ventilator, there is no autonomous breathing. Confirmatory tests can be performed if required to satisfy those who so demand. These can include a nuclide scan to confirm that no blood is reaching the brain; a test to prove that the brain is not utilizing glucose; as well as others. In truth, the clinical findings of the B.S.D. protocol are definitive such that confirmatory tests are not usually needed.

The writings of those who oppose accepting B.S.D. as halachically approved indicia of death reveal their unfamiliarity with the above described protocol. One author cites a halacha regarding a shochet who slaughters a B.S.D. animal [Rambam, Hilchot Shechita 6:4] whose “brain spills like water.” Surely such a case does not exist. If the animal were B.S.D. it would be on a ventilator in an intensive care unit, lying motionless and unresponsive to all stimuli! The “water” referred to is either spinal fluid or abscess drainage, not brain tissue. Another author, when writing in opposition to accepting B.S.D. as halachically valid, equates a polio patient who walks, talks, laughs, cries, with a B.S.D. patient because he needs a diaphragm stimulator or an iron lung to enable him to breath. He is not motionless, unresponsive to stimuli, as Rashi requires. He has a respiratory deficit, corrected by modern medical technology.

My great father-in-law ruled clearly, definitively, that B.S.D. is halachic death. Inability to breath and unresponsiveness to all stimuli with or without confirmatory blood flow tests confirm halachic death. Breathing via a ventilator, he stated, is not a sign of life. A beating heart under these conditions is not a sign of life. This patient is physiologically decapitated because of the lack of effective blood flow to the brain. A decapitated animal maintained on a ventilator will continue to maintain full blood pressure with the heart not missing a beat.

The attempt of some to parse his written responsa and raise doubts as to his ruling that B.S.D. is halachic death is totally unjustified. I and his son Rav Dovid did not only read his responsa. We saw him write them, discussed them with him, and heard him clearly unambiguously conclude: “a B.S.D. patient, whose heart is beating and lungs inflating via a ventilator, is halachically dead.” Claims of discrepancies in his responsa are erroneous. They confuse his rulings on cerebral death with B.S.D. When writing about cerebral death, he clearly notes “yachol linshom,” the patient can breath independently unlike the B.S.D. patient.

Those opposing B.S.D. cite the famous responsum of the “Chacham Tzvi” concerning “the chicken without a heart,” in which he emphasizes that the heart is the organ of life. Strangely, they never note that he assigns the heart to the respiratory system, not the circulatory system, with the function of “cooling the air and sending it to the lungs.” This erroneous physiology surely should not be relevant today.

My prior written analyses, and my lectures now available on the internet, should be adequate resource material for allowing all who are interested in understanding why B.S.D. is the most accurate halachic indicia that death has occurred. The recent controversial publication by the R.C.A. (link – PDF) contains among its many errors two statements that must be retracted publicly:

  1. A B.S.D. patient can sometimes recover (pages 22-23). This is incorrect. Never in the history of medicine did a B.S.D. patient show any “upswing” in his status, let alone recover.
  2. B.S.D. is not halachic death, nevertheless one may receive a vital organ transplant from a B.S.D. donor (pages 68-70,74). I consider this statement to be incorrect and irresponsible halacha. If B.S.D. is not halachic death, then removing the heart from the donor is an act of murder. Organs are not removed and put on sale in supermarkets. They are removed when ordered by the physicians attending the recipient. If B.S.D. is not death, then the doctors of the donor are “hit men” ordered to murder their patient.

These mistakes are damaging and must be corrected.

(Next: Rabbi Yaakov Weiner)

About Aaron Glatt

168 comments

  1. Is he kidding? Read pages 22-23. The RCA report doesn’t say that a BSD patient can recover! It says that the guy recovered because he was tested incorrectly. It never says that brain death is reversible! There is no error to correct!

  2. That second error isn’t an error either. The RCA quoted the gedolim who paskined that way. What’s the rCA’s error in that?

  3. To anonymous: The second error is an error according to Rav Tendler. *He* as a posek thinks this statement to be incorrect and irresponsible halacha.

  4. In the case of Zach Dunlap which was referenced on page 22-23 of the report, Rabbi Bush raised the possibility(albeit among others) that someone who had been declared dead by neurological criteria had recovered. This is a case where there has been blurring on both sides. Authortative sources including Wikipedia have stated that this was a case of erroneous determination, and this information was available before the paper came out, so raising the possibility of this case representing ‘recovery’ from brain death was not an accurate representation of current facts. On the other hand, to his credit, Rabbi Bush lists this as an unlikely possibility, and so it isn’t a black and white claim that a patient can recover. I guess the question is: ‘is it wrong to include something as a theoretical possibility even if you know with certainty that in actuality the theoretical possibility is not the case?’ It seems at least to be disingenuous. I dont think that this issue affects the content of the presentation.

  5. אנונימי

    Why does Harav Tendler think the R.C.A. has to apologize for quoting other פוסקים? If the R.C.A. ended saying a B.S.D. cant recover, why do they have to correct the error? Should they change it to say that a B.S.D. patient can recover?

  6. just another yid

    To Look it [email protected] 10:00 PM

    The RCA report says: “a far less likely possibility is that the proper tests were administered and read correctly, still giving incorrect information.”

    According to this statement, irrespective that it may be unlikely, a person declared BSD using the correct criteria could still possibly recover. This is incorrect and it is this error that Rav Tendler is pointing to.

  7. Just another yid

    Except that the statement (“a far less likely possibility is that the proper tests were administered and read correctly, still giving incorrect information”) is not at all incorrect, in any way shape or form.

    It is simply poor comprehension and reasoning to consider that statement to be the equivalent of “a B.S.D. patient can sometimes recover”.

  8. thank you for posting the link to the report of the RCA. Was the RCA ok with it being posted because I know many people are interested in reading it and until now it was not availalbe for the general public

  9. Joseph Kaplan

    “until now it was not availalbe for the general public”

    It’s been available to he general public for a long time. All you had to do was google rabbinical council of america brain death and it was the first or second hit.

  10. I thought I tried that. only the statement came up not the report

  11. I tried it now and it came up. I had qualms about sending it out before but now I see it is readily available.

    Thanks

  12. Joseph Kaplan

    I have a different question about pp. 22-23. The report says: ‘The recent case of Zack Dunlap from Oklahoma,30 while quite unique, casts a giant shadow over this entire discussion.” Why the giant shadow? Doctors made a mistake in ONE case, a case that the report acknowledges is UNIQUE. Why does one unique error cast a shadow on BSD?

  13. I believe they meant that it generated a lot of discussion and raised a lot of questions about BSD. That is why they mentioned the case but they dismissed it as most likely irrelevant.

  14. Wow, if RMDT would have expressed himself to the various media outlets around the world in such a calm fashion as this essay, there would have been so much more Shalom – albeit so much less journalistic sensationalism.

  15. Joseph Kaplan

    Gil, That’s a very generous way of (mis)reading what they wrote. Casting a giant shadow is not equal to generating discussion, and if, indeed, they thought it was irrelevant it would have been nice if they mentioned that.

  16. Joseph: That’s not a generous reading. It is clearly what they meant. Many thought it raised important doubts about BSD but the paper concluded that it didn’t. They did, in fact, state that it has no significance.

  17. I think that the relatively little discussion this post has engendered (because it basically restates RMT’s known views, shows how little it adds to this symposium (not RMT or his views, they add a lot, just this particular post). In that case, I must say that I am hugely disappointed that Gil turned down R. Bush for this post. R. Bush’s post, which would hopefully have answered many pressing questions on the matter, would have been worth more than all of the posts thus far.

  18. “They did, in fact, state that it has no significance.”

    And where exactly did they state that? Indeed, the paper’s implication was contrary, or as my rebbeimm of many years ago liked to say, punk fakert; the conclusion of the story was “regardless of which scenario or combination of scenarios took place, the fact is that a transplant team was on the verge of removing the organs from a man who today is alive and well.” If that “fact” is of “no significance,” why highlight it? Gil, I know you’re a better reader than your forced reading of this section of the paper makes you appear.

  19. R. Gil, when someone write “casting a giant shadow” it means that they attach significance to the incident. The significance seems not that brain death is reversible(but they didn’t rule it out), but that physicians are not 100 percent reliable in applying brain death criteria accurately. While this is a valid concern, it is not germane to a discussion of whether brain death is a halachically acceptable definition of death. You can’t have it both ways. Either they wanted to imply that it is reversible, in which case RMT’s critique is on target, or they included information designed o prejudice the reader that is not actually relevant to the topic. As i wrote previously, Whether one can adequately clean strawberries is a very different topic than whether they are kosher or not

  20. I think Dr. Stadlan answered Joseph’s question. The paper concluded that the incident was irrelevant to the determination of death. While it did cast a giant shadow, the paper concluded that it was an incorrect shadow because inappropriate testing was done. However, the case is still of interest, even if ultimately irrelevant to the issue of defining the moment of death, because it indicates that not all doctors follow the criteria all the time (which the Israeli Rabbinate asserts, as well). There is still something to learn from the case even though, despite claims to the contrary, it does not undermine BSD.

    Dr. Stadlan, your implication that the paper was designed to prejudice the audience is unfair. You are creating a massive conspiracy theory out of thin air.

  21. Well, I think Dr. Standlan supported my interpretation of the paper rather than answered my question. Your comment Gil was, however, a nice way to evade my question: where exactly did the paper tell us that a case that casts a “giant shadow” over the “entire” discussion — pretty strong words — is of no significance. BTW, I don’t think there’s any conspiracy; I think this is just one more example of sloppy and shoddy writing, thinking and argumentation that cries out for making the paper a draft that will be revised.

  22. Joseph: From the limited information that has become public, indications point to this last possibility, namely, that inappropriate testing was done to declare him ―brain dead.‖

    Cautiously worded but explicit. It has no implications to the validity of brain death because, evidently, inappropriate testing was done.

  23. Perhaps I missed it in the many posts and comments on the subject, but would someone cite the wording of the teshuvot of the Chatam Sofer and Chacham Zvi (in context) so that the reader can come to his own conclusion about their implication? My recollection of the view of the Chacham Zvi was that the absence of heart is not a sign of a treifa (in opposition to the Mechaber), but of a neveila. Who would argue that an animal (or a person) can live for any significant period without a heart – unless its function was replaced by a mechanical contrivance. How is this relevant to the criterion to be used to determine death?

  24. Doesn’t the case of Zack Dunlap at least question the frequency in which these determinations are made incorrectly?

    A real BSD diagnosis is truly irreversible – let’s all agree.

    It is a completely separate statement to say that it is always performed correctly. That is a serious matter for which there is no data. From a public policy perspective, it MUST be included in any discussion.

  25. The cited incident where a patient was declared brain-dead, yet recovered is not a valid demurral to using the brain-stem death criterion. Mistakes have always occurred and will ocntinue. We can only hope to minimize such occurrences to establishing a conservative protocol for death determination and penalizing hospitals that permit deviations. I would assume that mistakes have also been made in determining death using a cardio-pulmonary criterion. Yet, the supporters of the latter criterion would not change their stance if an example of such error was shown.

  26. Hirhurim: “Dr. Stadlan, your implication that the paper was designed to prejudice the audience is unfair. You are creating a massive conspiracy theory out of thin air.”

    The idea that the paper was “designed to prejudice” is precisely why, in the words of the RCA, it “engendered strong reactions from many quarters.”

  27. R’ Y. Aharon,

    You are correct. In its very essence, the Chakham Zvi’s ruling does not address the question of whether or not a breathless heartbeat constitutes a sign of life. All Chakham Zvi’s ruling communicates is that a creature cannot live without a heart. But the Chakham Zvi does not say that a creature can live with *only* a heart. Thus, the Chakham Zvi never addresses the question of whether one can live with only a heart and without the capacity to breathe (which is the predicament that describes BSD).

    This ambiguity is carried over directly into the comments of RMF in IM, YD II, no. 146. In the paragraph that begins with the words “vi’ulai mah she’hutzrakh haChakham Zvi”, IM accepts the potential plausibility of the Chakham Zvi’s observations but emphasizes that the purpose of the Chakham Zvi was not to identify heartbeat as the one and only criterion of life. Rather, the Chakham Zvi was merely positing that the heart is the organ which enlivens all the limbs of the body, including the respiration of the nose. To that effect, in the immediately previous paragraph (beginning with the words “aval barur ufashut she’ein”), IM says that it is not the nose which constitutes the source of life but rather the brain and the heart. A breathing nose simply shows that the brain and the heart are functioning. Thus, the brain and the heart are the sources of life, [-apparently because the brain controls respiration and the heart controls circulation (S. Spira’s speculative intepretation of IM; I claim no inside information on this)]. But IM never discusses the case where only one out of two sources function, viz. the heart and not the brain.

    Admittedly, the Chakham Zvi, in adducing support for his thesis (-which he regards as undisputed-) that it is impossible for a chicken to live without a heart, happens to employ terminology on several occasions which coincidentally suggests that he also believes that heartbeat is, in and of itself, a sign of life, as follows :

    [In the following analysis, paragraphs are cited from the Chakham Zvi based on the newly paginated Mif’al Chakham Zvi edition published in 5758. In the Gottesman library of Yeshiva University, it is available under the call heading REF BM 522.23.S533 ]

    (a) In the paragraph beginning with the words umah shekatav od vi’ulai yomar ha’omer, he says “After we know that the mishkan hachiyut (the dwelling place of life) is in the heart according to everyone, as we are about to explain, and that the limbs cannot live and be sustained without the life force and the nefesh hachayim (soul of life) which dwells in the heart, therefore she [-the hypothetical genuinely heartless chicken-] is a carrion.” Seemingly, these remarks of the Chakham Zvi indicate that life itself is synonymous with the heart.
    (b) Likewise, in the paragraph that begins with the words viharav ha’e-loki, he says that it is “well publicized to all the people of the world that the heart is the mishkan linefesh hachiyut (the residence for the soul of the life) and is [accordingly] the last organ to die”. The Zohar to Parashat Nasso is cited as confirming the latter point.
    (c) In the paragraph that begins with the words sof davar divrei hazohar, he says that “the life of every creature is in its heart”.
    (d) In the paragraph that begins with the words mah shehevi misefer sha’arei shamayim, he says that “even the one who holds that [corporal] motion depends upon the brain agrees that life does not depend upon anything other than the heart”.
    (e) In the paragraph beginning with the words umah shekatav od bihavi’o hahi diferek batra di’yoma, he says “behold Rashi of blessed memory has agreed to our words that she’haneshamah mishkanah balev (-as for the soul, her residence is in the heart)”.
    (f) In the paragraph beginning with the word vihakuzari, he approvingly quotes R. Saadiah Ga’on to the effect that hanefesh shokhenet bo balev (the soul dwells in him in the heart).
    (g) In the paragraph beginning with the words uvisefer tzeidah laderekh, he quotes the Zohar Chadash as submitting that hanefesh mikomah balev (-as for the soul, her venue is in the heart).

    Nevertheless, none of these references are taken seriously (or even mentioned) by RMF in his aforementioned responsum discussing the Chakham Zvi (IM, YD II, no. 146). Evidently, RMF understood that the exclusive purpose of the Chakham Zvi’s responsum was to forcefully make the point that one cannot live without a heart (and therefore it is impossible that the slaughtered chicken, whose kashrut status he was adjudicating to side of leniency, existed for so many years heartlessly). Anything else articulated by the Chakham Zvi is a purely rhetorical flourish: when he says that “the soul is in the heart”, he really means that “the soul cannot co-exist with the body in the absence of the beating heart”, but not that the heart is, in and of itself, a sign of life. Thus, the Chakham Zvi speaks nothing about the question of whether life can exist with a beating heart in the absence of respiration.

  28. When I am writing a paper, if I conclude that an event doesn’t cast a giant shadow, I don’t write those words. And if I wrote those words, and then come to that conclusion, I erase them because there isn’t actually a giant shadow. So either the authors changed their minds in the middle and not only don’t exactly write that conclusion, but also over 4 years neglected to edit it adequately, or there really is something that they feel casts a giant shadow. I prefer to take them at their word rather then accuse them of sloppy writing.

    Regarding the vast conspiracy: the only thing I am stating is that the paper is an attempt to educate people on the problems with using brain death as a halachic criteria for death. If it is not deliberate, then I would then have to accuse the authors of being incredibly naiive, something I again am unwilling to do.

    You very kindly posted my review of the RCA paper, and now almost 2 months later there has been no significant response. I realize that what I write may not be of much significance and that the authors may not think that what I wrote deserves or needs a response. However, until there is some response that makes sense, or some explanation that doesn’t involve a heavy reliance on ‘because we said so’ I see no reason to change my opinion or description of Rabbi Bush’s paper

  29. Hirhurim: “Dr. Stadlan, your implication that the paper was designed to prejudice the audience is unfair. You are creating a massive conspiracy theory out of thin air.”
    WRT Zach Dunlap:
    The conclusion of the RCA statement about Zach Dunlap is

    Regardless of which scenario or combination of scenarios took place, the fact is that a transplant
    team was on the verge of removing the organs from a man who today is alive and well.

    If this statement occured in the context of a discussion that those approving donation need to guarantee that appropriate testing was done – because it is possible that some centers are sloppy – this would make sense, and one could use the Zach Dunlap case to argue for oversight. However, the discussion was not about the need to apply strict criteria – but whether those criteria are indeed valid and guarantee irreversible damage – and the clear implication is that for some reason, this casts doubt on the reliability of the criteria. This is not a conspiracy theory – but fairly straightforward reading. If Gil thinks that straightforward reading implies a conspiracy, that does imply something.

  30. RMDT
    The attempt of some to parse his written responsa and raise doubts as to his ruling that B.S.D. is halachic death is totally unjustified. I and his son Rav Dovid did not only read his responsa. We saw him write them, discussed them with him, and heard him clearly unambiguously conclude: “a B.S.D. patient, whose heart is beating and lungs inflating via a ventilator, is halachically dead.”

    This cuts to the crux of another matter,that is hard to state politely. RMDT has argued emphatically for years that he has had direct communication with RMF about this issue, and RMF was very clear. Those who who argue that RMF’s position is not clear, as the RCA, implicitly (and almost explicitly) state that RMDT’s statements can not be relied upon – and, as he is very clear about what was stated, that he is lying. It is hard to fudge that (as, in a similar issue about Rav Walfish’s testimony about the Rav, some have tried) – and that is exactly what the RCA statement does.

    This does make polite discussion problematic – my guess is that RMDT was the “big gun” objecting to Rav Bush – and it is difficult to be on the same symposium with someone who is, in effect, calling you a liar.. – because being willing to be on the same symposium means that you are giving credence to the other side as respectable.

  31. R’ Spira, thanks for citing various phrases from the Chacham Tzvi regarding the central role of the heart in maintaining life. He appears to treat the matter as obvious, but we now know that the brain is the critical organ, and the heart can be replaced with a device which will maintain aerated blood circulation and life. In the absence of a supporting analysis of the key sugya in Yoma 85a, I don’t know that we need be overly concerned with this luminary’s wording. This may have been RMF’s consideration.

    You have cited the Chatam Sofer as arguing that the key examination for the determination of death is the absence of breathing. This is consistent with my reading of Yoma 85a, and is, presumably his basis. Yet, I also read that he insisted on 2 indicators of death; no breath and no heart-beat (or pulse). How are these to be reconciled? Is he adding an additional criterion (heart-beat) because that was the standard in his times that has no talmudic basis? If so, then why can’t we add the brain-stem death criterion (rather, lack of any brain activity – including the brain-stem) and omit the heart-beat criterion when the medical experts agree and circumstances warrant. After all, one of the tests for lack of brain-stem activity is the absence of spontaneous breathing – as per Yoma 85a.

  32. Not only was RMDT in direct contact with RMF but Rav Shabsai Rappoport,RMDT’s son-in-law was the editor of the last two volumes of Igros Moshe and also spoke directly with RMF who stated that brain with brainstem death,meaning irreversible loss of breathing is death.See Sefer Assia 7 page 143.
    THEN OTHERS COME ALONG AND SAY THEY ARE NOT TO BE BELIEVED.FURTHER THAT the letter sent to Dr.Bondi is fraudulent,SeferAssia 7,page148.
    I see no statement of conspiracy by Dr.Stadlan but real difficulties with what is supposed to be an objective RCA report.

  33. daat y: You have the chronology wrong. These questions have been around long before RMDT and RSR were saying what RMF told them personally. The issue is that RMF also spoke with other people. I find it hard to contradict RMDT, R David Feinstein, etc. but the RCA paper would have been lacking if it did not examine all of this evidence, particularly since HODS ignores it.

  34. Y.Aharon,
    I would state it a little differently,.
    The gemara is discussing no breathing.However today how do we know it is irreversible? When the brain together with the brainstem die
    WE KNOW THE BREATHING IS IRREVERSIBLE.

  35. R.Gil,
    But to question the authenticity of a teshuva in the Igros Moshe
    with a facsimile with RMF signature and stamp in Sefer Assia 7,page 148
    is difficult to comprehend.

  36. HIrhurim
    I find it hard to contradict RMDT, R David Feinstein, etc. but the RCA paper would have been lacking if it did not examine all of this evidence, particularly since HODS ignores it.

    It is one thing to say that there exist people who had different discussions at some point with RMF (“all of this evidence”)- another to conclude that there is any reasonable doubt about what RMF actually held – and it is the latter that is problematic….
    Again, just saying that there is a doubt is taking sides in this debate – which is a problem.

  37. When Dr. Stadlan stated that the RCA paper was “designed to prejudice the audience,” Rabbi Student accused him of “creating a massive conspiracy theory out of thin air.” I am not sure why stating that a document – that was primarily written by one person – is biased, and supplying the evidence to support this claim, deserves to be characterized ‘conspiracy theory out of thin air.’

    But if Rabbi Student is looking for people who are concocting bogus conspiracy theories, how about those who claim Rabbi Feinstein’s position was misrepresented and mistranslated by Rabbi Tendler when he translated the many meetings Rav Moshe had with many visiting doctors and medical students. There are now 7 eyewitnesses testifying on video on the HODS web site (http://hods.org/english/h-issues/videos.asp) who met Rav Moshe – 6 of which understood Yiddish – who said Rav Moshe accepted BSD, did not view a beating heart as a sign of life, and supported organ donation. To question Rav Moshe’s position would necessitate a ‘conspiracy theory’ including the co-conspirators Dr. Frank Veith, Dr. Arthur Edielman, Dr. Ira Greifer, Dr. Shabtai Rappaport as well as including the claim that the Bondi letter signed by Rav Moshe was forged. Is Rabbi Student willing to call this a bogus conspiracy theory?

    I understand that Rabbi Bush was not invited to respond to this forum and people are upset with Rabbi Student about this arrangement but I don’t think Rabbi Student bares all the blame. Nothing prevents Rabbi Bush from publishing his comments, responses, corrections, or retractions via the RCA website or his own shul website (where he had previously made available to the public the putatively private document) to clear his name. But he refuses to do so.

    If the NY Times and Nature magazine can issue retractions and corrections, why can’t Rabbi Bush? Perhaps he can start with something small like admitting his mistake in the citation of Ohalot 1:6 as opposed to 1:7 in the Rambam.

    Or how about he respond to significant questions, such as: since Rabbi Schacter is heard on a YU audiotape
    http://failedmessiah.typepad.com/files/rabbi-schachter-says-cant-take-organs-rabbi-tendlers-question-is-strong.mp3
    and Rabbi Tzvi Flaum is seen and heard on a HODS video tape

    both saying it is problematic for Jew who rejects brain death to take organs, why did those opinions never make it into the report? Why did the Bush document quote Rabbi Schachter as saying the opposite? The Bush document says everyone agrees that there is no problem in taking. Yet Rabbi Schachter (who was supposedly asked) and Rabbi Flaum (a signatory to the paper) at one point in their lives did disagree. If they changed their mind, what happened to cause them to change their mind? Why has Rabbi Bush not published their written responses to these questions? What is he and the RCA hiding?

    Does anyone find it curious that the RCA document states on page 45 “As of this date, Rav Schwartz still does not maintain a public position on the matter of ―brain death.” When just a few weeks later the RCA, the institution of which Rabbi Gedaliah Schwartz is the Av Bet Din, writes in their clarification that he does accept brain-stem death.

  38. “Based on the written record of Rav Feinstein, it is extremely difficult to draw support for the permissibility of organ donation from brain dead patients”

    Gil, do you agree with that statement? Is it extremely difficult?

    Despite what the Brody article quotes:

    “The sole criterion of death is the total cessation of spontaneous respiration,” wrote Rabbi Moshe Feinstein in a 1976 letter to a New York State health commission. “In a patient presenting the clinical picture of death, i.e., no signs of life such as movements or response to stimuli, the total cessation of independent respiration is an absolute proof that death has occurred.”

  39. Adam: You are misunderstanding Rav Schachter, as I explained in this post: https://www.torahmusings.com/2011/01/brain-stem-death-sources-comments-questions/ I asked about this and the RCA paper also records that it asked him and he responded.

    Regarding Rav Moshe, why doesn’t the HODS website have videos of people like Rav Bleich, who spoke with Rav Moshe at length about this subject? Or R. Shmuel Fuerst? There are different testimonies. But, again, if R. David Feinstein says his father held of brain death (which he doesn’t exactly but more or less does), then I can’t dispute that. However, it doesn’t answer all the other questions.

    The Bush document says everyone agrees that there is no problem in taking.

    Where does it say that? Read each place very carefully and you will see that the wording does not address killing someone by taking organs from them. The paper doesn’t even address that question.

    Skeptic: Based on the written record of Rav Feinstein, it is extremely difficult to draw support for the permissibility of organ donation from brain dead patients

    I am no expert but based on what I have read and discussions I have had, R. Moshe Feinstein’s teshuvos are contradictory and require resolution. The easiest resolutions are against brain death but RMDT has a more complicated resolution.

    Wasn’t that letter to the NYS health commission the subject of the R. Moshe Sherer letter or am I confusing it with something else?

  40. I will defend Rabbi Bush on one point. Rav Gedalia Dov Schwartz has supported the concept of brain death for many years when asked about specific situations, but refrained from taking a public position. Rav Schwartz made his position public only after the release of the Va’ad document.

  41. R’ Adam,

    Your points are well taken. And – with the kind permission of our Rosh Yeshiva R. Student – I agree with you, we must accept that RMF ruled that brain death=death, exactly as RMDT testifies in his 1988 symposium with RHS, (even if in my opinion this pesak was subsequently overturned by RSZA in the ’90s). That said, I enthusiastically endorse our Rosh Yeshiva R. Student’s proposition that RJDB be interviewed. “Talmidei chakhamim marbim shalom ba’olam” (Berakhot 64a), the more talmidei chakhamim from whom we hear, the more elevated and peaceful our world becomes.

    Parenthetically, I did ask RJDB why he never approached RMF in the early ’80s to endorse his (-RJDB’s) prenuptial agreement (described in his Benetivot Hahalakhah I, pp. 3-31, for which RJDB has the personal approval of R. Yaakov Kamenetzky, RSZA and yibadel lichaim RYSE.) RJDB answered me that it was impossible to receive an audience with RMF at that time. This, of course, is no surprise: the Artscroll biography of RMF explicitly indicates that during the last years of RMF’s life, access to him was limited, in order to preserve RMF’s health (-an entirely laudatory decision, I might add, given the great mitzvah of extending every person’s life as long as possible, including the life of RMF! I would have done exactly the same myself if I had the awesome privilege to be a member of RMF’s entourage, notwithstanding my enormous reverence for RJDB). Thus, apparently RJDB never enjoyed the privilege to meet RMF in the 1980’s, and I would assume this would also explain why they did not converse about brain death.

    All the same, it is definitely a great idea to interview RJDB, and enjoy his sparkling Torah insights.

  42. Glatt some questions

    I would ask those who are complaining about the lack of video testimony on the HODS website from talmedei chacahamim who do not support brain death as halachic death (such as Rabbi Bleich, Rabbi Willig, and Rav Herschel Schachter) to encourage these great minds to record their views, in order that the public can learn from them, and so that a public record of their position is available for all to see. My guess is that Robby Berman would be happy to post those testimonies, just like he has posted many articles that are against BSD as halachic death.

  43. R’ Y. Aharon,
    Thank you for your kind response, and for asking me to explain the Chatam Sofer. Chatam Sofer is confronted by a contradiction in defining death between the sugyot in Yoma 85a and Niddah 69b. Chatam Sofer himself responds with an internally contradictory answer. RMF and RSZA understood the Chatam Sofer in opposite ways. See https://www.torahmusings.com/2010/12/death-by-neurological-criteria/ , my comments on Dec. 23 and 26.

  44. Dear Rabbi Student,

    I have previously published on your blog, I have over the years asked a number of rabbis including Rabbi Bleich, Rabbi Abraham Abraham and Rabbi Schachter to be interviewed on camera by me at my cost so I can post their video interview on to the HODS Video page. All have refused. (Rabbi Abraham Abraham went so far as to tell me that since my VIDEO page will not have anyone from the anti brain death camp, according to him I should remove all the pro brain death videos and not post anything. Obviously, I disagree.)

    Therefore, I would very much appreciate if you would not imply that HODS is purposefully presenting just one side of the debate on the VIDEO page. Any rabbi who would like to be interviewed is welcome to contact me and I will do it.

    In addition, as I already mentioned on your site, every article ever written against brain death and against organ donation, is available on the HODS article page and it is referred to on the HODS Issues page. If you are aware of any document I overlooked, please email it to me and I will post it.

    You also wrote “The Bush document says everyone agrees that there is no problem in taking. Where does it say that?”
    It says it on page 47 where it states “All [Rabbis asked by the author Rabbi Bush] agreed that even if an organ was removed באיסור , it still may be used.”

    You also wrote: “Read each place very carefully and you will see that the wording does not address killing someone by taking organs from them. The paper doesn’t even address that question.”

    I’m not sure why this is not clear to you. The question in the Bush Document is asking rabbis who believe a brain dead person to be alive if they would allow themselves to register on a transplant list to ask a surgeon to remove the person organs thus killing him.

    In case this is not clear, a person who needs an organ does not just hang around an ER asking if there are spare organs that have been removed be’issur ‘anyway.’ I know that the Bush document tries to obfuscate the process. But any transplant proffessional will tell you that a person who wants an organ, has to register, pass physical exams, and officially request that doctors procure an organ for him or her.

    Robby Berman

  45. Joseph Kaplan

    “Regarding Rav Moshe, why doesn’t the HODS website have videos of people like Rav Bleich, who spoke with Rav Moshe at length about this subject? Or R. Shmuel Fuerst? There are different testimonies.”

    Gil, you should acknowledge that Robby Berman has answered this question. Or are you somehow disappointed with his answer? You should also now rephrase your question as follows: Why don’t people like Rav Bleich etc. agree to be interviewed and have their videos on the HODS website?

  46. Robby: Thank you for the explanation. I do not recall that comment but with the high volume it is hard to keep track of them. Perhaps Rav Bleich and Rav Schachter were concerned that by appearing on video they might be automatically listed as members of the HODS rabbinical board.

    It says it on page 47 where it states “All [Rabbis asked by the author Rabbi Bush] agreed that even if an organ was removed באיסור , it still may be used.”

    Exactly. The RCA paper states that organs that were removed may post facto be used. It says nothing more than that.

    Yes, the transplant process is more complicated than that. Such a halakhic ruling could only be used if a rabbi is consulted mid-transplant process, which I doubt happens too often. The paper should have addressed the issues of placing one’s name on a transplant list and authorizing the removal of organs but it doesn’t.

    Be that as it may, the paper only addresses using organs AFTER they have been removed. That is explicit and should be clear to anyone who reads it carefully. It never states that, according to those who do not hold of BSD, one may authorize removal of organs because that has to happen BEFORE the removal and the paper only discusses the case of AFTER the removal. This is not some sort of apologetics but simply taking the paper at its word. It doesn’t discuss every case and not even the common case of placing one’s name on an organ transplant list. Because that happens BEFORE the organs are removed.

  47. Hirhurim
    Be that as it may, the paper only addresses using organs AFTER they have been removed. That is explicit and should be clear to anyone who reads it carefully. It never states that, according to those who do not hold of BSD, one may authorize removal of organs because that has to happen BEFORE the removal and the paper only discusses the case of AFTER the removal.

    So you are suggesting that in dealing with this issue, the paper endorses doing something that is never done, and has no position on what actually occurs – and writes it in a fashion that seems to endorse something that it actually doesn’t….(as it has been previously understood by everyone here – including you, who has argued that being on the transplant list and receiving is permissible because the donor would be killed anyway…)..
    I know you wish to defend the paper, but that such a defense is used is itself a major condemnation….

  48. Dr. Shinnar: Read the paper and tell me what you see.

    Does it happen? It certainly can, as I expained above. If the family asks a rabbi mid-translant process and the rabbi has to answer the question posed to him.

    Yes, *we* have discussed placing one’s name on a transplant list. So have many poskim. But the RCA paper doesn’t.

  49. Joseph Kaplan

    Gil, I think your reading of the RCA paper is tortured. But rather than debate whose reading makes more sense, why don’t you ask R. Bush what he meant? Then we could at least put this one point to bed.

  50. Lawrence Kaplan

    Gil: Yuor suggestion that perhaps Rabbis Bleich and Schachter declined to be interviewed because they were cooncerned that by being interviewed they might be automatically listed as members of the HODS Rabbinical Board sounds farfetched to me. If that were the reason, they could have specifically requested not to be so listed.

  51. Lawrence Kaplan

    Along the lines of my brother’s suggestion, I hiope that the very first thing Gil will do after he declares the symposium “officially closed” will be ask Rabbi Bush to contribute a post.

  52. Joseph: I have confirmed it, although not with R. Bush. I don’t see it as a tortured reading. It is just taking the statements at face value.

    Dr. Kaplan: I was being facetious. Last week, Robby said that any rabbi who signs up for a HODS card is automatically included as part of its rabbinical board.

  53. Lawrence Kaplan

    Gil: I should have realized. But in the meanwhile my brother’s question remains unanswered. Neat evasion.

  54. But in the meanwhile my brother’s question remains unanswered. Neat evasion.

    I’m not sure what you mean. If you mean why I don’t ask Rabbi Bush about this, I could but I don’t need to. You will understand as the symposium continues.

  55. Rabbi Student,

    to the best of my recollection I never said that any rabbi who signs up for a HODS card is automatically put on the rabbinic advisory board. Those rabbis that sign up are asked if they wish to join the advisory board and if they wish to have their name and picture posted on our site. We have many prominent rebbe’im that have our organ donor card but have chosen to remain private about it.

  56. https://www.torahmusings.com/2011/01/brain-stem-death-sources-comments-questions/#comments

    Robby Berman on February 3, 2011 at 2:16 am

    1. To Steve Brizel…

    To Rabbi Student: HODS has an executive board that meets annually and makes decisions etc. HODS also has a rabbinic advisory board and that consists of all rabbis who have signed up for our organ donor card. Rabbi Angel has never, in our close to 10 years of existence, every showed up to a board meeting because he is not a board member. The board members are clearly listed on our website and they have been for the past 10 years.

  57. A number of people have asked me to briefly list some of my questions that I submitted to Rabbi Bush via Rabbi Herring. To date, I have not received any response from Rabbi Bush about these questions or issues:

    The Bush Document implies (p. 22) people can wake up from brain death. This is false.

    The Bush Document implies the medical community rejects brain death. This is false.

    The Bush Document omitted pertinent medical information supplied to it by Dr. Noam Stadlan in support of brain death. Why?

    The Bush Document states (page 45) that Rav Aharon Lichtenstein told the Jesner family that “he did not support such a procedure [organ donation].” Yet both the Jesner family and Rav Aharon Lichtenstein himself (on video available on the HODS site) said that he said to them “organ donation is desirable.” http://www.hods.org/english/videos/video_RLichtenstein.asp#

    The Bush Document states (page 47) that Rabbi Herschel Schachter along with all the other RCA rabbi asked “… agreed that even if an organ was removed באיסור, it still may be used.” Yet an audio file on our site shows Rabbi Herschel Schacther saying it is forbidden. Rabbi Flaum also says on a HODS video it is problematic. Why did Rabbi Bush say ALL AGREE when clearly some don’t or didn’t, but he makes it seem like a slam dunk. Why doesn’t Rabbi Bush share the written responsa by this rabbis? Why secrecy?

    The Bush Document states (P. 47, footnote 106) “There is simply no basis in Halacha to suggest that an organ once removed should be discarded, regardless of how it was obtained.” Why did Rabbi Bush not make the connection here with with Rav Elyashiv banning Jews from going to China to get organs? He only mention it when it serves himself.

    The Bush Document states (page 45) that Rav Gedaliah Schwartz “… does not maintain a public position on the matter of brain death.” Yet the RCA has publicly announced that Rav Gedaliah Schwartz accepts brain death. [While Dr. Stadlan did point out that Rabbi Schwartz did not publicize his opinion, it was well known and he did not lie about it or hide it. So in a research article reviewing the positions, why would Rabbi Bush simply gloss over Rabbi Schwartz’ acceptance of brain death by saying he is not public about it but then broadcast that Rabbi Schwartz strongly recommends that people not get organ donor cards.]

    The Bush Document states (page 55) that it is “uncontroversial” that the Bondi letter, wherein Rav Moshe Feinstein confirms again that brain death is death, is not authentic. “Uncontroversial.” Really? Rabbi Bush gives the source for bit of information as Dr. Robert Schulman, a person who rejects brain death. Is this ‘scholarly’ research? A rumor of one person is worthy of casting aspersion on a gadol betorah’s written word and signature? What evidence does Dr. Schulman have? We would all like to know.

    The Bush Document states (page 109) to have spoken with all the relevant parties to determine if Rav Yosef Dov Soloveitchik objected to brain death. Yet Rabbi Bush did not speak with Rabbi Binyamin Walfish, former Executive Director of the RCA, who said he spoke with the Rav who told him he accepts brain death. Was Rabbi Walfish not a relevant person to interview? Is this RCA sponsored document claiming that the former Executive Director of the RCA is lying?

    The Bush Document states claims to have spoken to all the relevant parties to determine Rav Moshe Feinstein position. Yet Rabbi Bush didn’t interview Dr. Arthur Eidelman, Dr. Ira Greifer or Dr. Frank Veith – all whom are alive and well – and who had met with Rav Moshe who told them he accepted brain death. (In addition, Dr. Greifer and Dr. Eidelman understand Yiddish.)

    The Bush Document even makes simple citations errors. Quoting the mishna in the Rambam as Ohalot 1:6 when it is in fact 1:7. Would Rabbi Bush please be kind enough to at least admit that mistake?

    I hope that Rabbi Asher Bush will have the integrity to answer these questions and to retract what he feels should be retract. In my opinion, his silence speaks volumes.

  58. The Bush Document implies (p. 22) people can wake up from brain death. This is false.

    No, it does not imply that.

    The Bush Document implies the medical community rejects brain death. This is false.

    No, it does not imply that.

    The Bush Document omitted pertinent medical information supplied to it by Dr. Noam Stadlan in support of brain death. Why?

    I don’t know.

    The Bush Document states (page 45) that Rav Aharon Lichtenstein told the Jesner family that “he did not support such a procedure [organ donation].” Yet both the Jesner family and Rav Aharon Lichtenstein himself (on video available on the HODS site) said that he said to them “organ donation is desirable.” http://www.hods.org/english/videos/video_RLichtenstein.asp#

    Rav Lichtenstein approved the specific language of the RCA paper!

    The Bush Document states (page 47) that Rabbi Herschel Schachter along with all the other RCA rabbi asked “… agreed that even if an organ was removed באיסור, it still may be used.” Yet an audio file on our site shows Rabbi Herschel Schacther saying it is forbidden. Rabbi Flaum also says on a HODS video it is problematic. Why did Rabbi Bush say ALL AGREE when clearly some don’t or didn’t, but he makes it seem like a slam dunk. Why doesn’t Rabbi Bush share the written responsa by this rabbis? Why secrecy?

    I personally asked Rav Hershel Schachter about this twice and he told me that the RCA paper has it right and the audio is taken out of context. He was explaining a theory and not issuing a ruling (just like he does in his Hebrew article on the subject).

    The Bush Document states (P. 47, footnote 106) “There is simply no basis in Halacha to suggest that an organ once removed should be discarded, regardless of how it was obtained.” Why did Rabbi Bush not make the connection here with with Rav Elyashiv banning Jews from going to China to get organs? He only mention it when it serves himself.

    I don’t understand the question.

    The Bush Document states (page 45) that Rav Gedaliah Schwartz “… does not maintain a public position on the matter of brain death.” Yet the RCA has publicly announced that Rav Gedaliah Schwartz accepts brain death. [While Dr. Stadlan did point out that Rabbi Schwartz did not publicize his opinion, it was well known and he did not lie about it or hide it. So in a research article reviewing the positions, why would Rabbi Bush simply gloss over Rabbi Schwartz’ acceptance of brain death by saying he is not public about it but then broadcast that Rabbi Schwartz strongly recommends that people not get organ donor cards.]

    Rav Gedaliah Schwartz had not previously made a public statement about this. Do you think the Vaad Halakhah did not ask him about this and that he did not review the document before its publication? I don’t know this for sure and speak only for myself. But I find it hard to believe that he did not approve that language.

    The Bush Document states (page 55) that it is “uncontroversial” that the Bondi letter, wherein Rav Moshe Feinstein confirms again that brain death is death, is not authentic. “Uncontroversial.” Really? Rabbi Bush gives the source for bit of information as Dr. Robert Schulman, a person who rejects brain death. Is this ‘scholarly’ research? A rumor of one person is worthy of casting aspersion on a gadol betorah’s written word and signature? What evidence does Dr. Schulman have? We would all like to know.

    Was this the same Dr. Robert Schulman who proved that the reports of R. Shlomo Zalman Auerbach and R. Eliezer Waldenberg approved of BSD was also false? I give him a lot of credit.

    The Bush Document states (page 109) to have spoken with all the relevant parties to determine if Rav Yosef Dov Soloveitchik objected to brain death. Yet Rabbi Bush did not speak with Rabbi Binyamin Walfish, former Executive Director of the RCA, who said he spoke with the Rav who told him he accepts brain death. Was Rabbi Walfish not a relevant person to interview? Is this RCA sponsored document claiming that the former Executive Director of the RCA is lying?

    The RCA paper recorded all the different reports and there are ways of resolving them without saying that anyone lied. Are you saying that Rav Soloveitchik’s family, whose views are not recorded on the HODS website, is lying? I emphasize this because increasingly the HODS website is becoming the central source for information on this subject. Material missing, even for good reasons, needed to be filled in and the RCA paper did that.

    The Bush Document states claims to have spoken to all the relevant parties to determine Rav Moshe Feinstein position. Yet Rabbi Bush didn’t interview Dr. Arthur Eidelman, Dr. Ira Greifer or Dr. Frank Veith – all whom are alive and well – and who had met with Rav Moshe who told them he accepted brain death. (In addition, Dr. Greifer and Dr. Eidelman understand Yiddish.)

    I don’t know.

    The Bush Document even makes simple citations errors. Quoting the mishna in the Rambam as Ohalot 1:6 when it is in fact 1:7. Would Rabbi Bush please be kind enough to at least admit that mistake?

    Really??? You’re going to make a big deal out of what could be a typo or could be a different edition. I haven’t checked the Kafach Mishnah but it often has different numbering.

    I hope that Rabbi Asher Bush will have the integrity to answer these questions and to retract what he feels should be retract. In my opinion, his silence speaks volumes.

    I hope that Robby Berman will have the integrity to apologize and retract his criticism. His shoot first, ask questions later attitude speaks volumes.

  59. Glatt some questions

    I love that Robby Berman refers to the brain stem death study as the “Bush Document.” The RCA, in its excellent clarification statement, distanced itself from this one-sided presentation. I have spoken to three of the folks on the Vaad Halacha Committee, and each of them told me that they had virtually no input into the document (none of them were critical of Rabbi Bush or implied that they didn’t know their names would be associated with the document, but they were clearly uncomfortable with the fact that the study was so one sided and that it contained factual errors).

    Yes, this brain stem death study is very much the “Bush Document” and not a paper that a large majority of the RCA members are proud of, regardless of their position on brain death.

  60. Gil, It’s all very nice for you to serve as R. Bush’s spokesperson, trying to answer questions posed to him. But as wonderful a person as you are, it’s simply not good enough. You’re not r. Bush and you didn’t write the paper. R. Bush must, sooner or later, personally confront the numerous questions that have been posed in connection with his paper. His silence is becoming deafening. Part of the problem might have been your decision to give some unnamed “big gun” veto power over who was to appear in this symposium. Nonetheless, it’s time for R. Bush to speak, if not here (because of your regretable decision) then in some other forum like Text and Texture (even though it seems that many more people read Hirhurim than that blog). Then, perhaps you could get permission to reprint it and it won’t then be an official part of this symposium.

    And now for some unsolicited advice to R. Bush. What I would suggest for him to write would be the following: I have been following with great interest the discussions on Hirhurim and in other fora about brain death in general and the RCA paper in particular. As a result of those discussions and questions raised in them, the Halacha Committee has decided to treat the paper as a draft and will review it with the discussions and questions in mind and make revisions where necessary before reissuing it. Just an unsolicited suggestion.

  61. Just to clarify that a) I am not Rabbi Bush’s spokesman and cannot be considered a reliable conveyer of his opinion, b) I agree that he should go public and answer the many questions people have.

  62. Hirhurim
    >Dr. Shinnar: Read the paper and tell me what you see.

    >Does it happen? It certainly can, as I expained above. If the family
    >asks a rabbi mid-translant process and the rabbi has to answer the >question posed to him.

    In general, when reading, I am assuming that the answer to a practical halachic question reflects the metziut. If it reflects a theoretical possibility, but not the practical metziut, one would expect that to be clear – unless those writing did not know what the metziut was…
    You are suggesting that if someone did not ask a she’ela before enrolling, now is awaiting the organ after donation (at which point he is probably already on the table), and the family now asks – that is the question that is being answered. I find this somewhat far fetched…

    I would also say that in the brouhaha over the response to the RCA – the condemnation of we will take but but not give – no one (TTBOMK) answered that no, we forbid taking for the sake of an individual – but if someone enrolled anyway and the organ was already harvested for that patient, and then we were asked, we would say that the already harvested organ could be used…..

  63. In general, when reading, I am assuming that the answer to a practical halachic question reflects the metziut.

    Don’t read your own preconceived notions into a paper and then criticize it. That is patently unfair.

  64. “Don’t read your own preconceived notions into a paper and then criticize it. That is patently unfair.”

    I think this is a case of the pot calling the kettle black.

  65. Joseph: I guess we’ll see who is right.

  66. Robby: Re the Mishnah, see the numbering on the Mechon Mamre website, which I believe follows the Yemenite versions (as does the Kafach edition of the Rambam’s commentary): http://www.mechon-mamre.org/b/h/h62.htm

  67. “Joseph: I guess we’ll see who is right.”

    There’s no way to ever see that. If R. Bush meant what you say that sentence means, then it needs to be rewritten to make that clear, because right now it’s anything but clear. This is just one more example of poor writing (in addition to poor research) that needs revision so it can be clear as to what it means.

  68. How else can you read it? That it refers to signing up on an organ donation lists? How can you read that in those words? It seems perfectly clear to me.

  69. Joseph Kaplan

    I guess you’re not as good an editor as I thought you were.

  70. ולכאורה הי’ נראה לומר דהוה”נ בנד”ד, דאם נתפוס שהחולה הזה למרות שכבר מת מוחו, עדיין דינו כחי, א”כ נמצא שהחולה השני המקבל את לבו, מחיה את נפשו ע”י מיתת חברו, וזה אסור אפילו אליבא דר”ע.

    If that is not R. Schachter’s actual view, it would be nice to hear what his view is. Because it seems pretty compelling to a novice.

  71. In government, law, and academia, a first draft is often issued for public comment, and next, the final document. The best academic journals are peer reviewed. There are some points in the RCA BSD Study which need adjustment. A multi-displinary peer review would help. I question “giant shadow”, based on one misdiagnosed case in Texas. The NYS Task Force on Life and the Law was clergy, doctors, and lawyers. A federal panel was similar.

  72. Skeptic: If that is not R. Schachter’s actual view, it would be nice to hear what his view is. Because it seems pretty compelling to a novice.

    That is based on Rav Soloveitchik’s chiddush, which is not how we pasken.

  73. Yes, but as I said it seems compelling. (As does the first part of his discussion ובפשוטו הי’ נראה דאין היתר זה כ”כ פשוט which does not rely on any such chiddush)

    And I haven’t seen an alternative compelling argument. So it would be nice to know what R. Schachter’s argument is.

    It doesn’t really help to say “that is not how we pasken” So how do we pasken? What is the argument?

  74. The whole reason to say that the heter isn’t pashut is Rav Soloveitchik’s lomdishe chidush. If we don’t pasken like his chidush and read the Gemara like everyone else, then the heter works. Rav Schachter follows that sevara (they’ll kill him regardless).

  75. So what is his argument? Does he have in writing what his position is and why?

    I feel like I am repeating myself, but you seem set on ignoring the main point and concentrating on side issues.

    If only there were some sort of online symposium to discuss the actual psak of current poskim in order to understand their reasoning…

  76. This is why I don’t like R’ Avigdor Miller. Because in the beginning of Rejoice O Youth, about Science and Torah, he requires the reader to start with the assumption that the scientists are all liars, that nothing they way is true. IOW, the only way to win an argument is to silence the other side ab initio. That is what you have done here, and it has tainted (as we see in the comment threads) your whole enterprise of the “symposium”.

    Get the participants together in a room, give them couches, have them eat off TV tables while doing heseibah, and then you can call it a Symposium. Until then, it’s a collection of guest posts.

  77. So what is his argument? Does he have in writing what his position is and why?

    Are you asking why his article doesn’t conclude with a definite psak? Most of his articles don’t. His argument is actually mentioned in the article but he doesn’t say that he paskens like it. It’s that there is a long list of potential recipients and even if one patient doesn’t take the organ, the donor will still be “killed”.

    If only there were some sort of online symposium to discuss the actual psak of current poskim in order to understand their reasoning…

    If you have a question for him, ask him.

  78. lawrence kaplan

    Gil: Th question I was referring to, which you evaded answering, is why haven’t Rabbis Bleic an Schachter agreed to be interviewed for HODS.

  79. I can only speculate that it’s because they don’t trust HODS and/or don’t want to appear as if they are supporting it. That is assuming they were asked and declined. I don’t know that for a fact.

  80. I thank our Rosh Yeshiva R. Student for raising the important point that R. Soloveitchik’s chiddush regarding an abandoned flask of water is subject to dispute. I.e., although the Halakhah follows Rabbi Akiva in Bava Metzi’a 62a that the owner of the water drinks his own water to save his own life, R. Soloveitchik postulated that Rabbi Akiva will admit that a person who chances upon an abandoned flask of water may not drink all the water himself, but must rather share it with his thirsty compatriot. As may be inferred from RJDB in his Benetivot Hahalakhah I, pp. 118-126, R. Soloveitchik’s “abandoned flask” chiddush is subject to a dispute between Rema in CM 388:2 and Shakh in CM 163, §18. [Namely, Rema and Shakh clash whether a person who is already captured for death may permissibly rescue himself when that will automatically shift the danger onto others. The thirsty individual described by R. Soloveitchik [who theoretically possesses the physical agility to take the ownerless canteen] has been condemned to death if he should choose to congenially share the canteen with his compatriot. He can indeed extricate himself from death by drinking all the water (instead of sharing it), but that will cause his compatriot to be “captured” for an earlier death instead. Hence, the dispute between Rema and Shakh is germane. Rema agrees with R. Soloveitchik.]

    However, it seems to me that HaRav HaGa’on RHS did not offer the most accurate analogy for case of registering for an organ. When I register for an organ, it is not merely a case of taking an abandoned flask to save my life (which would subject to controversy between Rema and Shakh), but is even a more intense form of geram retzichah (since the heart/lung/liver/pancreas that I seek is not abandoned, but is rather functioning inside the donor – who must be (arguably) “killed” for me to receive his organ), which all opinions should forbid. The more appropriate analogy of RHS would be *not* to the abandoned flask, but to the case of Yichaduhu (which is itself compared to Bava Metzi’a 62a by Shu”t Achiezer, as explained in my comment at https://www.torahmusings.com/2011/01/news-links-31/comment-page-1/#comments on Jan. 17, at 10:15 p.m.) Therefore, it seems to me that HaRav HaGa’on RMDT’s lomdut is superior to that of HaRav HaGa’on RHS (-and why not? After all, RMDT has the zekhut of being one of RHS’s Rebbeim). RMDT correctly recognizes that if a brain dead patient is possibly alive, it should be forbidden to register for his organs on account of geram retzichah.

    Still, I can envisage two hypothetical ways to justify registering for an organ:

    (a) If we are prepared to accept RSZA’s proposition that the Noahide Code empowers the Noahide legislature/judiciary to modify the laws of homicide;

    or (b) If we are prepared to reject RSZA’s reading of Chatam Sofer and champion RMF’s reading as the sole normative option. [I.e. we would say that Chatam Sofer was mistaken to mention circulation, and it is only respiration that truly matters, which is essentially how RMF reads Chatam Sofer(*).]

    *= At the 1988 symposium, R. Tzvi Flaum asked RMDT how RMF addressed the Chatam Sofer’s reference to circulation. This is RMDT’s answer verbatim:

    “The shver zatza”l referred to Acharonim very rarely. Not that he discredited the Acharonim. It’s because he grew up where his library wasn’t as good as the library of any bar mitzvah boy today. He didn’t have all the sefarim available. He made use… his great Acharonim were the Shakh and the Taz, the nos’ei kelim of the Shulchan Arukh. He used them to learn peshat in the gemara, as you know if you use the Dibberos Mosheh as well as the Iggeros Mosheh. The Chasam Sofer was one of the Acharonim that he made use of. Whatever the teshuvah says that is not time-bound… He came with his teshuvah to show that the facts of the Chasam Sofer are not relevant here because it’s not talking about a man who’s on a respirator. He has no such things; no such thing as brain death. The principles the Chasam Sofer lays down are the ones that he referred to. The fundamental principle: if there’s any sign of life, that you must maintain that patient to the best of your ability – of course so! Now, the new detail – that I can now have a decapitated patient on a respirator etcetera, that obviously he didn’t even bother referring to it. He didn’t think anybody would go ahead and transfer the information of the Chasam Sofer built upon a Chakham Zvi who believed that the heart was the source of respiration – not the lungs – and use that as a medical basis for making a Halakhah. The Halakhah doesn’t change, but our understanding of science changes, and when the doctors tell us, then we don’t change the Halakhah – we apply the Halakhah as we’ve always been applying. I’ve mentioned many times: we have bad press. When a doctor treats a patient and then says “I have a new drug; the old drug was no good”, you give the doctor a Yasher Ko’ach; he shows he’s up-to-date in medicine. If a Rav will tell you “I now looked up the gemara again and I saw a different gemara and I realized I was paskening wrong all these years”, he’s called an am ha’aretz and you fire him. There’s no such thing as the progress of Halakhah. There is such a thing as the progress of medicine.”

    http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II (79:30 into the recording)

  81. Joseph Kaplan

    “That is assuming they were asked and declined. I don’t know that for a fact.”

    I believe Robby Berman expressly said they were. Considering the fact that he posts anti-BD articles on the HODS website, it makes sense that he asked them. Maybe they don’t trust him, but you were the one who raised the issue of why they weren’t interviewed and the interviews posted. I guess your reaction to not liking the answer is to ignore the fact that you raised the question and cast aspersions on Robby. Lots of dancing around Gil. You must be getting tired.

  82. I’ll know it for a fact when I hear it from them, although it seems perfectly reasonable.

  83. “It’s that there is a long list of potential recipients and even if one patient doesn’t take the organ, the donor will still be “killed”.”

    Has R. Schachter written that this is his personal view? Or said it on record somewhere?

  84. We keep going in circles. We can’t even get R. Schachter on record as to his own view. Are there poskim besides R. Tendler willing to take a public position and stand by it? How can we have a discussion when only one side takes a stand, explains how it works in practice clearly and defends it?

  85. What do you mean? The issue is brain death and R. Schachter is clear about his position he considers it a safek about which we have to be machmir.

  86. Please correct me if I’m wrong, but I believe Rav Schachter said (in the RCA BSD Study?) that there is a basis to discern, from the writings of RMF, that RMF held that BSD is death.

  87. Leon Zacharowicz MD

    Rabbi Tendler’s article is much appreciated.

    As usual, Mr. Berman has commented in a manner consistent with his advocacy. However, he portrays HODS as an unbiased source of education.

    A few questions for Mr. Berman:

    1) Has your “rabbinic advisory board,” which apparently consists of over 100 rabbis, ever met? (This becomes particularly relevant in many of the following questions, regarding issues which suggest at best lack of knowledge and at worse a bias which colors the HODS presentation of the issues and makes that site suspect in the eyes of many):

    2) Why do you continue to incorrectly list Rabbi Moshe Sternbuch as a supporter of “brain death”?

    3) Where is the source for the claim on your website that Rabbi Elyashiv forbade receipt of organs in China was for the reason your website state? Similarly, where is the source for your claim that the reason Rabbi Chaim Kanievsky supposedly forbade receipt of organs in any case from “brain-stem dead” patients?

    4) On your website, there is a statement that “the brain mainly consists of the cortex (the larger part of the brain) and the brain-stem” and that “A person is brain dead when the cortex and the brain-stem cease to function.” Is that a secular definition? If the hypothalamus or other brain structures continued to function, would that alter this definition? Might not the fact that 10% of patients declared “brain dead” have been shown to have areas of the cortex measuring 1 inch of more in diameter still demonstrating brain activity be worthy of mention

    5) Your website veers into what many would consider a halachically irrelevant discussion of morality and ethics, with regard to the halachic authorities who have ruled that in certain limited circumstances one might receive organs removed from a patient declared “brain dead,” and state that those who follow their rabbis’ ruling on this “become an accomplice in a forbidden act – murder…If you believe that the potential donor is alive, you are in effect asking the doctor (whom you may think does not know any better) to murder someone on your behalf. This is clearly morally reprehensible and halachicly forbidden”? If you wrote this, what are your qualifications in rabbinics or in medical ethics to make such a claim? Is HODS stating that all rabbis who forbid removal of vital organs from a “brain-stem dead” patient but under limited circumstances permit receipt of organs from such a patient are guilty of encouraging murder and that their decision is halachically forbidden and morally reprehensible?

    6) Your website states that “There is plenty of anecdotal evidence in transplant centers about how the medical establishment is angry that Jews don’t donate organs but are willing to receive organs. Again, halachic reasoning suggests that Jews should donate organs not only to Jews but to non-Jews as well, to prevent enmity.”
    Did you shout the phrase, “Jews get organs, Jews should get organs” during the Israel Day Parade, in the presence of thousands of non-Jews, and what was the purpose of this, if not to use the possible incitement of non-Jews as a means to get Jews to give more organs, even if doing so might be against Jewish law?
    What does the first sentence have to do with the second sentence?
    Furthermore, why is HODS raising the absurd notion that Jews do not wish to donate organs to non-Jews, as if that is the crux of the issue? Is this not itself causing needless hatred?

    7) On the your website, it says that “Doctors can test for brain-stem death without causing an invasive or traumatic injury that might accelerate death and violate the prohibition of Gosses.”
    Are you aware of any halachic opinions that indicate otherwise, and if so why doesn’t your website mention any of these?

    8) If the HODS “Who’s Who” section, why do you incorrectly imply that the Israeli Chief Rabbinate unequivocally accepted “brain death” as halachic death without any conditions or limitations?

    9) In this same section, why is not a single rabbi who opposes “brain death” profiled, given that the great majority of halachic authorities today (including halachic authorities such as Rabbi Shlomo Zalman Auerbach ztl and Rabbi Waldenberg ztl, both of whom Rabbi Dr. Steinberg reportedly considered as his mentors, as well as Rabbi Elyashiv and numerous other halachic authorities)?

    10) Why have you declined my repeated offer, over the past several years, to join our yarchei kallah, and sit together and learn the sugyas with regard to “brain death,” together with some of the leading halachic authorities alive today?

    Respectfully,

    Leon Zacharowicz, MD

  88. Leon Zacharowicz MD

    Addendum: There were some errors in my prior post. I meant to write:

    3) Where is the source for the claim on your website that Rabbi Elyashiv forbade receipt of organs in China was for the reason your website stated? Similarly, where is the source for your claim that the reason Rabbi Chaim Kanievsky supposedly forbade receipt of organs in any case from “brain-stem dead” patients was for the reason your website stated? Do you have any evidence to support your claim with regard to this supposed ruling by Rabbi Kanievsky?

    7) I have no idea how this happened, but there should not have been a “smiley face” in the seventh paragraph.

    I regret these errors.

    I also neglected to add another question for Mr. Berman:

    11) Your site mentions that Rabbi Walfish “testified” that Rabbi Yosef Ber Soloveitchik ztl accepted “brain death,” but why did your site not mention those who claim he did not accept “brain death” as halachic death, including his own brother, Rabbi Aharon Soloveitchik ztl (who himself did not accept “brain death,” and who told me that the Rav did NOT accept “brain death”)?

    My concern is that HODS is an advocacy organization which is viewed by some as an unbiased source of information on this most complex of controversies in medical halacha. I would much prefer if HODS decribed itself as an advocacy organization for the acceptance of “brain death” as halachic death–which of course represents a novel idea, i.e. that a group whose board of directors does not have a single rabbi is trying to tell Jews what the halacha should be and to question not only the halachic authorities who disagree but also their morality (see above).

    Respectfully,

    Leon Zacharowicz, MD

  89. Lawrence Kaplan

    Gil: My brother was correct. Robby Berman expressly wrote “I have asked over the years a number of rabbis, including Rabi Bleich, Rabbi Abraham Abraham and Rabbi Schachter to be interviewed by me on camera at my cost so they can be videoed. All have declined.” In light of this clear, unequivocal, and explicit affirmation, how can you say that you will only know it as a fact when you confirm it with R. Schachter?

  90. First, thank you to the Kaplan brothers! I don’t know who you guys are or where you live but I owe you both a beer. (please contact me at robbyberman at hods org)

    Second, I drove up to the Catskills about 8 years ago to speak with Rav Schacther when I asked him to get a card and be interviewed and he declined. I called Rabbi Avraham Avraham in Jerusalem (I think at his Sharei Zedek Hospital office) and Rabbi Bleich (at his office in Cardoza) about 7 years ago asking them and they too declined. I know Rabbi Student would like me to quit my job and start going through my phone records so I can offer proof but I don’t have the inclination. (I pray they remember my request because if not, I’m sure I will be accused of never asking them.)

    Third, I amazed that Dr. Zacharowitz and others continue to state that people from Rabbi Soloveithcik’s family said he rejected brain death. As far as I know, no one from Rabbi Soloveithick’s family claims that he rejected brain death. All they claim is they never heard him talk about it or they can’t imagine he would have accepted it. If Dr. Zacharowitz has any evidence, written, oral, or anything, to the contrary, please let me know, and I will post it to the HODS site and change the text.

    Fourth, I found Rabbi Student’s response to my questions sent to Rabbi Bush quite unsatisfactory. A few times his answers were “I don’t know”, when I stated something as a fact and I supported that fact by quoting a page from the Bush document, Rabbi Student simply says its not a fact, etc.

    While I would love to get the truth out there, I don’t find this blog the best forum to do so when people twist things, have a selective memory, ignore certain questions, or cast aspersions on my truthfulness.

    I offer Rabbi Student and Dr. Zacharowitz the chance to debate me or ‘discuss’ these issues, in person or by phone, and we can post the video or audio to the blog. I will be more than happy to answer all their questions. But the time that is required to read all of this and to respond to all of this is too onerous for me as I imagine it is for many others. I hope the Kaplan brothers will watch my back.)

    As per the previous comment that I made that rabbis that get our card are listed on the rabbinic board, I should have written that only those rabbis that get our card who also approve of joining the board are listed on our rabbinic board. I kind of think that is self evident but in any case I apologize for that inaccurate post that I wrote at 2 in the morning.

    As per the Bush Document, many RCA rabbis found the document to be incredibly tendentious including Rabbi Goldin the incoming RCA president. The RCA clarification distanced themselves from it by saying they don’t need to retract it because a retraction should come from, if it is called for, by the authors.

    Robby

  91. One more thing Rabbi Student.

    I did look at your source http://www.mechon-mamre.org/b/h/h62.htm and I’m not sure why you brought it. Perhaps I am missing something.

    Rabbi Bush quotes Rambam as being 1:6. It is not. It is 1:7. You brought me a source that also quotes the mishna as being 1:7. How does this change anything?

    The document is as sloppy as it is tendentious, biased, and misleading. Perhaps one could say this one small mis-citation casts a giant shadow over the credibility of the whole paper. 🙂

  92. R. Soloveitchik postulated that Rabbi Akiva will admit that a person who chances upon an abandoned flask of water may not drink all the water himself, but must rather share it with his thirsty compatriot.
    ============================================
    See chazon ish b”m likkutim siman 20 vs r’ chaim in the gilyonot on the Rambam yesodei hatorah 1 – similar case – if 3rd party who doesn’t need water should give it to 1 of the 2 others to live, or must the 2 split and die.(R chaim says split)
    KT

    KT

  93. “What do you mean? The issue is brain death and R. Schachter is clear about his position he considers it a safek about which we have to be machmir.”

    No, the issue is accepting an organ donation from a brain dead (in his view safek alive) patient. Where has R. Schachter made his own position on this clear?

  94. Robby,

    It’s not that I think your a liar. It’s that you are a passionate advocate with a knack for flair. That is why there is always a doubt in my mind about your claims.

    Your tendentious readings of the RCA paper amount to misrepresentations. You are putting words in the author’s mouth in order to delegitimize him. That’s playing dirty. It could be that your misreadings are all simply due to your passion and the paper’s lack of clarity. I don’t know. But you’re wrong on a lot of your claims of what the paper says.

    And regarding the Mishnah, not only is it a petty claim but you are again wrong. I don’t blame you for not being a scholar but I blame you for placing yourself in the position of being out of your league. Mechon Mamre shows both the Yemenite and Vilna numbering, for ease of use. They do this for both the Rambam’s Mishnah commentary and Mishneh Torah. Anyone familiar with thei method will see that the Yemenite Mishnah has it as 1:7 and Vilna as 1:6. I have open in front of me R. Yosef Kafach’s now-standard translation/edition of Rambam’s Mishnah commentary. In volume 6 p. 149 (vol. 3b in the 3 vol. version) it shows the Mishnah as 1:7. Anyone looking up the Rambam’s commentary in the best available edition would have to go to 1:7 and that is certainly what the RCA paper was referencing. When I give a reference to the Rambam’s Mishnah commentary, I also refer to this edition.

    Regarding the Rav, thanks to the RCA paper we now know that two of his grandsons spoke to him about this subject and a member of your rabbinical board has a letter from the Rav’s brother and son-in-law on this subject.

  95. Hirhurim on February 8, 2011 at 10:36 am
    >The Bush Document implies (p. 22) people can wake up from brain >death. This is false.

    >No, it does not imply that.
    As in a previous part of the discussion, the citation of the Zach Dunlop case clearly implies that that is possible – even if in the end they conclude that the most likely cause is improper testing, most likely means that other explanations are possible…

    >The Bush Document implies the medical community rejects brain >death. This is false.

    >No, it does not imply that.
    S
    ee page 19

    The continued existence of organized activities in the bodies of ―brain dead‖ patients has been an
    ongoing topic of study in some medical circles. A recent scholarly conference of the President‘s
    Council on Bioethics spoke of a few isolated cases where nutrition and oxygen were provided for
    a number of years; such patients continued to heal wounds, underwent proportional growth, and
    in one case went through puberty.
    20
    Recent articles in the New England Journal of Medicine
    21
    wrote of some of the same phenomenon, as well as the cases that often make the news, namely
    when a pregnant woman is given life support following ―brain death,‖ enabling the baby to come
    to term, continuing the pregnancy for weeks and even months.
    22
    As Dr. Robert D. Truog of Harvard has pointed out,
    23
    the body of a brain dead person far more
    closely resembles that of a living person than that of a dead one.

    This suggests at the least that rejection of brain death is a mainstream position in American medicine.
    (BTW, one citation, the New England Journal of Medicine – I checked quickly – it actually discusses something different – cardiocirculatory death – taking organs after the heart was asystolic for a brief period – not brain death at all….)

  96. Skeptic:
    No, the issue is accepting an organ donation from a brain dead (in his view safek alive) patient.

    That has only been THE issue for a few weeks and Rav Schachter has not, to my knowledge, publicly commented on the subject in that time.

  97. Dr. Shinnar: As in a previous part of the discussion, the citation of the Zach Dunlop case clearly implies that that is possible

    They don’t rule out the possibility ab initio, which is the methodologically honest way to handle it. But they do NOT state or imply that BSD is reversible.

    This suggests at the least that rejection of brain death is a mainstream position in American medicine.

    No, it suggests that SOME doctors are discussing the complex evidence.

  98. All the to’ing and fro’ing regarding the positions of various poskim indicates a lack of clarity regarding the evolution of their thinking. For those who are gone, we are at the mercy of their recorded words subject to the (often conflicting) testimony of various informants.

    For those at the prime of their powers, like RHS, there is an opportunity to clarify their positions and the thinking behind it. The extent to which they choose not to do so, is also an answer.

  99. IH: I don’t blame people like RHS for trying to stay away from the media sharks. Do you really think The Jewish Week will give them a fair hearing? I don’t. Immediately after quoting RHS, they will probably quote RMDT and Robby Berman saying he is ignorant and immoral. He’s wise to stay out of the media frenzy. I’m sure when things calm down, he and others will be vocal about their views… and Robby will be quick to write Op-Eds denouncing them.

  100. Joseph Kaplan

    “Regarding the Rav, thanks to the RCA paper we now know that two of his grandsons spoke to him about this subject and a member of your rabbinical board has a letter from the Rav’s brother and son-in-law on this subject.”

    Thanks to the poor methodology of the RCA paper we know almost NOTHING about these discussions. When did they take place? (Interestingly, one of the grandchildren comments on the timing of R. Wlafish’s discussion but the RCA paper doesn’t tell us when the grandchildren’s discussions took place. Does R. Bush know or did he ebven ask? Who knows.) What was the context in which they took place? What was the Rav’s condition at the time? Was the discussion theoretical or was it, like Rabbi Walfish’s conversation, halacha lema’aseh? Was anything done based on the conversation? And I could go on. All we have is a brief diwscussion of what one of the grandchildren says he discussed with his randfather statement that the Rav’s grandchildren said something and the footnote says “Oral communication, May and June 2006.” Boy, that tells a lot, especially compoared to a 20 m inute detailed video interview by Rabbi Walfish that is available for review by anyone. BTW, even after seeing that video, I have a number of questions I would ask R. Walfish and some follow up research that I would do if I were writing the paper; questions R. Bush should have asked and follow up he should have done had he been doing a proper job. Weigh the two pieces of evidence: a detailed video description and a simple statement with no additional information. And as for the letter, what does it say? Did R. Bush get a copy? Did he speak to R. Angel about it (the paper says R. angel was the person who received the letter)?

    I have a strong sense of what I think a fair finder of facts would decide based on the evidence provided in the RCA paper, but more importantly, I know what a good lawyer would do before putting this evidence before such a finder of facts. R. Bush has not done anything close to what is called for with respect to the Rav’s position, and all we have from him since the paper is silence.

  101. Gil: Leaders lead. As, I said: the extent to which they choose not to do so, is also an answer.

    And, you have overplayed “the media sharks” unless RHS’s position when finally stated clearly is indeed deemed “morally untenable” by other Orthodox Rabbis.

  102. To Hirhurim on February 9, 2011 at 9:27 am

    “I don’t blame people like RHS for trying to stay away from the media sharks. Do you really think The Jewish Week will give them a fair hearing? I don’t. Immediately after quoting RHS, they will probably quote RMDT and Robby Berman saying he is ignorant and immoral….”

    What nonsense. These are life and death issues. RMDT never called anyone immoral, just the Psak immoral. There is a huge difference.

    Do you have a problem when RHS has called other Rabbonim ignorant or biased (and any student of his knows he has done so on many occasions)? You should not, because RHS is saying what he believes, and he is right to do so. RMDT is also right to call people out who Pasken in a way he feels in incorrect.

    We need Rabbonim who are motivated Lshem Shamayim, and are not afraid to say what they believe – and to be strong about it. This should be applauded, not insulted.

    Finally, you seem to be taking any criticism of Rav Shachter’s Piskei Halacha as a personal attack on you. What’s that about? Your lack of objectivity in this symposium is a huge disappointment.

  103. I actually used to be sympathetic to HODS and have no opinion on brain death. Only during the recent month or two did I become convinced against brain death, and against HODS.

    But I am opposed to denigrating great scholars, posturing in the media to the detriment of the Orthodox community, and misrepresentation of the work of good, honest people.

    I probably would have been more critical of the RCA paper if it had ever had a fair hearing. But from day one it was vilified and misrepresented in the most heinous ways. The denigrators set the conversation and now honest readers have trouble reading it without preconceptions and seeing what is actually says.

    I also know that the leading rabbis on both sides have spent countless hours with doctors and make every attempt to use the best science available. Portraying one side as more medically advanced seems a little ridiculous to me when I have spoken with Rabbi/MDs who have devoted years to this subject and some have concluded against brain death and others in favor.

    If the talking heads would ever be quiet, I would support revisiting the RCA paper. But right now our primary communal priority is to stop denigrating mainstream pesak halakhah as immoral and telling the world that we are anti-Gentile. That, it seems to me, is the greater immorality.

    We can and should debate the halakhah. But if the tone would dramatically improve we would have a more productive discussion.

  104. With the kind permission of our Rosh Yeshiva R. Student, I can justify the tone of the RCA paper’s opponents in the noble spirit of milchamtah shel Torah. Since, apropos my comment on R. Weiner’s essay at 11:28 p.m., I believe there must be a monolithic approach to the practical doctrine of death, it emerges that every paper which is produced on this topic ipso facto affects the entire House of Israel. A paper arguing that brain dead patients are alive ipso facto frustrates the lifesaving efforts of those righteous healthcare workers who honestly believe that a brain dead patient is dead. A paper arguing that brain dead patients are dead ipso facto frustrates the lifesaving efforts of those righteous healthcare workers who honestly believe that a brain dead patient is alive. Moreover, as Dr. Stadlan has cogently pointed out, if a brain dead patient is alive, we might have to delay all funerals until decomposition of the body occurs. Thus, not only righteous healthcare workers, but righteous Chevra Kaddisha workers are also affected by the RCA paper. [That said, I am very proud of the paper, of HODS, as well as of this symposium.]

  105. To Hirhurim on February 9, 2011 at 11:51 am

    “But I am opposed to denigrating great scholars, posturing in the media to the detriment of the Orthodox community, and misrepresentation of the work of good, honest people.”

    Don’t you think that RCA paper, just a little, was guilty of “denigrating great scholars?” They implied that people like RMDT were falsifying information! More so, they delegitimized Piskei Halacha of Rav Moshe, such as the “Bondi Letter” without any shred of evidence to do so.

    There are many other examples of this throughout the paper, as has been pointed out on this blog. How can you defend this?

    “I probably would have been more critical of the RCA paper if it had ever had a fair hearing. But from day one it was vilified and misrepresented in the most heinous ways. The denigrators set the conversation and now honest readers have trouble reading it without preconceptions and seeing what is actually says.”

    In what way was it vilified? I have seen numerous people, some right here on your blog such as Dr. Stadlan, who have raised serious and critical objections to the report, yet no response have ever come back from the RCA. It was not vilified, but rather it was critically analyzed. Isn’t this what is supposed to happen?

    It is also disturbing that you are forming an opinion of the RCA paper based upon what other people are saying. More so, how do you know that “honest readers have trouble reading it?” How elitist can you get? Maybe you had trouble reading it, but the large choruses of people who have raised objections are being completely honest. Don’t forget, there is intelligence outside of the RCA and this blog you know.

    “I also know that the leading rabbis on both sides have spent countless hours with doctors and make every attempt to use the best science available. Portraying one side as more medically advanced seems a little ridiculous to me when I have spoken with Rabbi/MDs who have devoted years to this subject and some have concluded against brain death and others in favor.”

    Again, people like RMDT and Dr. Stadlan have pointed out specific points and statements issued by those opposing BSD that are not medically correct. The other side has never, to my knowledge, refuted their arguments. This leads one to presume that, indeed, certain Poskim really don’t seem as medically advanced as others. The RCA/author’s of the report, have never (at least publicly) refuted the medical issues raised against them. Why not?

    “If the talking heads would ever be quiet, I would support revisiting the RCA paper. But right now our primary communal priority is to stop denigrating mainstream pesak halakhah as immoral and telling the world that we are anti-Gentile. That, it seems to me, is the greater immorality.”

    Again, you are confusing issues. It is precisely because the RCA came out with a report that THEY (YOU?) defined as “mainstream” that prompted such a loud cry in response. Finally, I really wish that someone like RHS would explain why it is not anti-gentile to take organs from someone, who if Jewish, would be considered alive. I don’t want to hear “because we don’t Pasken (like what Rabbi Tendler is saying). Why, after all this time, can’t the other side offer a “lomdush” and thoughtful (based on Halacha) answer to this major question?

    “We can and should debate the halakhah. But if the tone would dramatically improve we would have a more productive discussion.”

    Agreed. Next time the RCA issues a report, perhaps they could tone it down and not imply that anyone they disagree with is a liar. If they do this, I am certain the tone would improve dramatically.

  106. Hirhurim
    But they do NOT state or imply that BSD is reversible.

    Our understanding of English and logic may be different. If I state that a case of presumed revival from BSD is “most likely” just an error in diagnosis, that means that I imply that it is possible that there is revival from BSD….
    (eg, If I state that it is most likely that the sun will rise tomorrow, it means, unless I am being cute, that I imply that it is possible that it won’t – and for sure that I am raising that as a polemical or debating point…)

  107. just a yid: The RCA paper did not invent all of those questions regarding RMF’s position! They just summarized the discussion that has been circulating in the literature for a long time and that RMDT has himself acknowledged. They would be remiss if they ignored the teshuvos and articles on the subject.

    There have been many questions raised about the RCA paper and I would also like to see them answered, if possible. The fact that the Vaad Halacha has not responded does not mean that the questions cannot be answered. There is no admission of failure by being slow to respond or staying away from blogs. Just because Dr. Stadlan and RMDT asked questions on blogs and in the media does not mean that they are necessarily correct. When I have privately asked some of those questions, I received perfectly reasonable answers.

    Yes, it was vilified. It was called an act of anti-semitism in the newspaper!

    The RCA never declared anything to be mainstream. This was always considered a research paper to aid rabbis. Nothing more and nothing less.

    Finally, I really wish that someone like RHS would explain why it is not anti-gentile to take organs from someone, who if Jewish, would be considered alive.

    That very question shows how much this discussion has been tainted. I am not aware of any posek who has said that Jews may take organs only from Gentiles. RHS and others have said that Jews may take organs from any donor, under certain conditions which currently adhere in the US. They do not distinguish between Jews and Gentiles, and neither does the RCA paper.

    Many on the other side are sick and tired of carrying out the same argument for twenty years. They have published articles and books, spoken on it many, many times. Go to YUTorah.org and you can find many, many lectures and articles on the topic.

    Next week I’m posting an essay that discusses taking but not giving organs. The essay was originally written in 1999!

  108. Dr. Shinnar: Are you kidding? The paper states that there is most likely no evidence that BSD is reversible and you see that as implying that they believe it is reversible???

  109. To Hirhurim on February 9, 2011 at 1:00 pm

    “ The RCA paper did not invent all of those questions regarding RMF’s position! They just summarized the discussion that has been circulating in the literature for a long time and that RMDT has himself acknowledged. They would be remiss if they ignored the teshuvos and articles on the subject.”

    The RCA was indeed remiss, as they ignored all of the evidence and articles and lectures disproving the notion that RMF did not hold of BSD!

    They accepted all the “questions” without offering any evidence as to why they accepted them as legitimate. RMDT wrote a book, part of which specifically is focused on answering and disproving the allegations raised against RMF and some his Tshuvos. RMDT has also spoken about this, offering concrete examples, on numerous occasions (see YUTORAH.org for his lectures).

    They also questioned the accuracy of RDF as well.

    After all these years, you would think they could come up with something better than “this is disputed.” If the Bondi letter is legitimate, it has major ramifications. Yet the RCA implied it was falsified when it classified it separately and included a footnote that it was disputed. They adopted a reading of the Teshuvos that has been refuted/answered, yet they did not include this.

    “There have been many questions raised about the RCA paper and I would also like to see them answered, if possible. The fact that the Vaad Halacha has not responded does not mean that the questions cannot be answered. “

    Really? Rabbi Folger’s response to Dr. Stadlan can’t be learned from? Why did Rabbi Folger comment – on this blog – in response to Dr. Stadlan? More importantly, why did he stop? Most importantly, why did the authors of the report never respond to Dr. Stadlan?

    The RCA itself obviously knows what a controversy this caused, as evidenced by their Jan.7 statement.

    “There is no admission of failure by being slow to respond or staying away from blogs. Just because Dr. Stadlan and RMDT asked questions on blogs and in the media does not mean that they are necessarily correct.”

    You give more credence to your blog than it deserves. Dr. Stadlan and RMDT didn’t ask questions of the RCA through your blog. They restated issues they had already raised for many years. In the case of Dr. Stadlan, he wrote that the RCA never responded to him.

    How do you justify all this?

    “ When I have privately asked some of those questions, I received perfectly reasonable answers.”

    How come Dr. Stadlan didn’t? Do the people you asked “privately” not know that this is a major issue for Klal Yisroel? Only YOU are zoche to receive “perfectly reasonable answers?” What about the rest of us?

    “Yes, it was vilified. It was called an act of anti-semitism in the newspaper!”

    For reasons that have been discussed on your blog and elsewhere. You can debate the semantics, but stop ignoring the major consequences the RCA paper would have if adopted as Halacha.

    “The RCA never declared anything to be mainstream.”

    That is true, you did.

    “ This was always considered a research paper to aid rabbis. Nothing more and nothing less.”

    Then why was it made public on the RCA website? Why was it public on Rav Bush’s shul website? It’s cute, after the fact, to call it an “aid to Rabbi’s.” And even if it was that, it still deserved the strong response it received.

    “Finally, I really wish that someone like RHS would explain why it is not anti-gentile to take organs from someone, who if Jewish, would be considered alive. That very question shows how much this discussion has been tainted. I am not aware of any posek who has said that Jews may take organs only from Gentiles. RHS and others have said that Jews may take organs from any donor, under certain conditions which currently adhere in the US. They do not distinguish between Jews and Gentiles, and neither does the RCA paper.”

    Nice side-step of the issue. According to these poskim, BSD does not exist within Halacha. If their position is adopted, the only people who could be declared BSD would be non-Jews. This is the core of the issue. Also, does this mean that someone following these Poskim (who don’t hold of BSD) would be allowed to take an organ from another Jews who does hold of BSD? Can you explain how this would be justified?

    “Many on the other side are sick and tired of carrying out the same argument for twenty years. They have published articles and books, spoken on it many, many times. Go to YUTorah.org and you can find many, many lectures and articles on the topic.”

    You are really showing your bias here. Are you saying that Klal Yisroel doesn’t have a right to ask, but we should listen to lectures? Poskim like RHS continue to speak on these topics. This topic is at the forefront of major disputes in Klal Yisroel and they PARTICPATED in the RCA report. If they didn’t think its relevant today, they should not have participated. Are you saying they could not forecast the results of their actions?

    I give much more credit to Poskim like RHS than you seemingly do.

    “Next week I’m posting an essay that discusses taking but not giving organs. The essay was originally written in 1999!”

    Mazal Tov! Hopefully we can get an answer to some of the specific questions raised on a paper published toward the end of 2010.

  110. Gil, please consider that your continued apologetics for the Va’ad Halacha is itself a source of undesirable heat in this debate.

    If you are their spokesman, then you cannot pretend to be dispassionate. And, if you are not their spokesman, then you help no one by sounding like you are.

  111. R. Gil. “most likely” is not certainty. When you say or write “most likely” you have not eliminated the alternative.

    If you think about the landscape of halachic discussion on brain death prior to this article, there was relatively not much publicity. There were papers in tradition (kunin and the reichman response), the discussion at the 2008 RCA convention, but not huge amounts of public debate or scrutiny. So what changed? Obviously Rabbi Bush and the Va’ad Halacha Paper. You may not want to accept the following list as valid or accurate, but these are the reasons that the Bush document generated such reaction: 1. It presented only one side of the argument. 2. It identified itself as seemingly a fair and balanced presentation, but the content was not seen as consonant with that presentation 3. Even those inside the RCA were not allowed to have input or add support for the other side. 3. Appeals to Rabbi Bush for some presentation of the other side were rejected. 4. The analysis in the paper was one sided, similar to the medical information 5. There was no way via the RCA to get information to the membership that opposed the Bush paper. 6. The paper can be interpreted and already has(see Rabbi Folgers comments on the Brody editorial in the forward) as ‘severely restricting’ the halachic acceptance of brain death. In fact, it attempts not only to oppose the concept of brain death, but to deligitize it and eliminate it from halachic consideration. So in summary it was seen(it may not have been the intent) as a deceptively presented attempt to shift the opinion of the RCA membership to a point of not only disagreement, but total halachic elimination of brain death. It should come to the surprise of no one that the response was public(RCA avenues were not available) and vigorous. In addition, since it was seen as an attempt to deligitimize one position, it was only fair to respond in kind. I should note that the issue of receiving but giving was already criticized severely by Rav Carmel in B’Mareh Habazak published 2 years ago. It is not a new position.

    As Rav Fischer at Cross Currents was unable to admit despite presented with the evidence, it is quite clear how and why this all started, and in whose court the ball now sits. Rabbi Bush may not agree with my assesment, but those are the facts as I see them, and how I think many see them. How he responds will have a lot of influence on the direction and tone or the conversation

  112. IH of 2:10 – Yes!

  113. IH: I don’t consider this apologetics and I certainly am not a spokesman for the RCA or its Vaad Halacha. I don’t understand their silence but I also don’t know all of their thoughts and intentions.

    just a yid: The RCA was indeed remiss, as they ignored all of the evidence and articles and lectures disproving the notion that RMF did not hold of BSD!

    They didn’t ignore it. They evaluated it and reached a conclusion, and explained their reasoning.

    After all these years, you would think they could come up with something better than “this is disputed.”

    I count four paragraphs on the subject of the Bondi letter.

    Really? Rabbi Folger’s response to Dr. Stadlan can’t be learned from? Why did Rabbi Folger comment – on this blog – in response to Dr. Stadlan? More importantly, why did he stop?

    I don’t know but I suspect because he is too busy and not in the thick of this issue. I don’t think he played a major role in the paper, although I could be wrong. Only someone who has spent years on it can adequately respond to Dr. Stadlan.

    Dr. Stadlan and RMDT didn’t ask questions of the RCA through your blog. They restated issues they had already raised for many years. In the case of Dr. Stadlan, he wrote that the RCA never responded to him.

    What do you mean? He forwarded to me the RCA’s response! It just wanted sufficient for him. He also forwarded to me the questions and information he sent the RCA, which I had a Rabbi MD evaluate for me. I’m totally unqualified to answer even the most basic questions but the Rabbi MD told me that the material is either irrelevant or inconclusive. He didn’t find anything convincing. Not that this is a slight to him. He may find it very convincing but not everyone else does. I, of course, don’t even understand the material and am relying on a third party.

    “Yes, it was vilified. It was called an act of anti-semitism in the newspaper!”
    For reasons that have been discussed on your blog and elsewhere.

    The reasons are totally insufficient to justify it but that is beside the point. The paper was vilified and people are reacting accordingly.

    Then why was it made public on the RCA website?

    It wasn’t! There is no link on the RCA website and the only way I have ever found it is by Googling it.

    Why was it public on Rav Bush’s shul website?

    Because he spent years on it and posted it for his congregants. Is its being posted on a small shul’s website really what you would expect as publicizing from a national organization that regularly issues press releases and gets into the newspapers? Obviously, the RCA had no intention of publicizing it beyond its own members. But it wasn’t hiding it either.

    “I am not aware of any posek who has said that Jews may take organs only from Gentiles.”
    Nice side-step of the issue. According to these poskim, BSD does not exist within Halacha. If their position is adopted, the only people who could be declared BSD would be non-Jews.

    No, if their position was adopted no one, Jew or Gentile, would be declared BSD. But either way, neither of these scenarios are remotely possible nor discussed in the RCA paper. People are incorrectly extrapolating and then attacking the RCA paper in the most offensive ways based on their own imaginary scenario.

    You are really showing your bias here. Are you saying that Klal Yisroel doesn’t have a right to ask, but we should listen to lectures?

    I don’t understand your point. Yes, Klal Yisrael has a right to ask questions. And a rabbi has an obligation to answer them. How is that relevant to our discussion?

  114. “But right now our primary communal priority is to stop denigrating mainstream pesak halakhah as immoral and telling the world that we are anti-Gentile. That, it seems to me, is the greater immorality.”

    Perhaps you should have made clear this was your intention with the Symposium. Not to discuss the issues generated by the RCA paper, but rather to label such discussion as ‘denigrating’ and take steps to squelch it.

  115. Dr. Stadlan: First, I’d like to thank you for keeping your cool and offering very substantive points in this discussion.

    “most likely” is not certainty. When you say or write “most likely” you have not eliminated the alternative.

    Correct, but they were dismissing the only possible evidence to the contrary. You might have wanted a stronger rejection but it was, still, dismissal.

    If you think about the landscape of halachic discussion on brain death prior to this article, there was relatively not much publicity.

    I disagree. There have been conferences about it over the years. YU had a medical ethics conference a few years ago for undergrads. I believe one talented blogger made real-time transcripts, somewhere on curiousjew.blogspot.com. There have been articles and books published. It has been a steady stream, following the rush in the early nineties. Just wait, this will also die down pretty quickly and will just be a bump in the road.

    1. It presented only one side of the argument. 2. It identified itself as seemingly a fair and balanced presentation, but the content was not seen as consonant with that presentation

    The study states explicitly that its goal was to evaluate the arguments and not just offer a balanced presentation. That does not detract from its honesty any more than your own presentations are understandably one-sided and passionate but still honest.

    3. Even those inside the RCA were not allowed to have input or add support for the other side.

    I encourage the independence of the Vaad Halacha. It needs to be that way otherwise it will get mixed up in internal politics. That is an organizational and procedural issue but still very important.

    3. Appeals to Rabbi Bush for some presentation of the other side were rejected.

    He had not just the right but the obligation to evaluate and decide what to include and exclude.

    4. The analysis in the paper was one sided, similar to the medical information

    As above, yes.

    5. There was no way via the RCA to get information to the membership that opposed the Bush paper.

    I don’t understand this point. Why should there be?

    6. The paper can be interpreted and already has(see Rabbi Folgers comments on the Brody editorial in the forward) as ‘severely restricting’ the halachic acceptance of brain death. In fact, it attempts not only to oppose the concept of brain death, but to deligitize it and eliminate it from halachic consideration.

    The paper did not issue a ruling and has not, in fact, restricted any rabbi’s ability to accept BSD. Has there been a steady drop in HODS membership among RCA rabbis? I doubt it.

    It should come to the surprise of no one that the response was public(RCA avenues were not available) and vigorous.

    Dr. Stadlan, halevai that everyone had responded as you did. Vigorous but honest and respectful.

  116. Skeptic: The symposium is not about the RCA paper. Please reread the introduction: https://www.torahmusings.com/2011/02/symposium-on-the-ethics-of-brain-death-and-organ-donation-introduction/

  117. “People are incorrectly extrapolating and then attacking the RCA paper in the most offensive ways based on their own imaginary scenario.”

    This is disingenuous:

    1. The paper articulates the legitimacy of being restrictive in donation, put permissive in accepting.

    2. The paper uses RSZA (among others) in defending this position.

    3. The paper (p. 68) quotes RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population).

    4. The paper omits that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population).

    This selective quotation by the Va’ad Halacha led to the statement by Rabbi Riskin et al. that “to adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable”. And this statement was neither “incorrectly extrapolating” nor “attacking the RCA paper in the most offensive ways”.

  118. To Hirhurim on February 9, 2011 at 4:13 pm

    “Dr. Stadlan, halevai that everyone had responded as you did. Vigorous but honest and respectful.”

    Yet, your responses to those who disagree has been anything but. The RCA paper was not honest and it certainly was not respectful. Unfortunately it does not appear you will acknowledge this, and because of this, you refuse to grant legitimacy to the strength and tone of the opposing argument.

    I want to see a substantive response to the major issues that have been raised against the RCA report. The fact that none have been coming speaks volumes. You can defend it all you want, but your serving as an apologist does not change the facts. And the facts are the one thing that the RCA Vaad Halacha does not seem willing to address.

  119. I should qualify that I do not know for a fact that it was this selective quotation on p. 68 that “led to the statement by Rabbi Riskin” and I should have qualified the assertion in the comment I just posted that I suspect it led… Mea culpa.

  120. IH: 1. The paper articulates the legitimacy of being restrictive in donation, put permissive in accepting.

    No, it doesn’t. It only discusses accepting an organ after it has been removed from a donor.

    2. The paper uses RSZA (among others) in defending this position.

    The paper does not have a position. However, it quotes RSZA as only one among many others.

    3. The paper (p. 68) quotes RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population).
    4. The paper omits that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population).

    RSZA did not restrict acceptance of organs to only those donated by Gentiles. He also allowed accepting organs donated by Jews.

  121. just a yid: Yet, your responses to those who disagree has been anything but.

    I apologize. Can you please point to any specific examples?

    The RCA paper was honest and respectful. Unfortunately, it does not appear that you will acknowledge this, and because of this, you refuse to grant legitimacy to the strength and tone of those defending it.

    I want to see a substantive response to the major issues that have been raised against the RCA report.

    I think that’s a valid request.

    The fact that none have been coming speaks volumes.

    I agree. I think that every organization has an obligation to respond within one news cycle and should not allow weeks and even months to pass without answering every criticism. Unfortunately, some people are still old fashioned and take their time.

  122. Verbal gymnastics, again.

    True or false:

    1. RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)?

    2. RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population)?

    3. p.68 references (1) but omits (2)?

  123. 1. RSZA permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)?
    2. RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population)?
    3. p.68 references (1) but omits (2)?

    I assume that is because the paper was written with American rabbis in mind. I’m not sure what else you are deducing from the omission. But come back on Sunday for an essay discussing RSZA’s position.

  124. If memory serves — and please correct me if I’m wrong — the only reference to receiving BSD organs in the entire paper is the reference on p. 68:

    “In a December 1991 letter to Rav Feivel Cohen, Rav Auerbach wrote that despite the fact that he cannot support “brain death” to permit organ donations, nevertheless, it is permitted to receive
    organs that have been taken from such patients.”

    Given that RSZA was based in Israel, the omission can be reasonably questioned — and has been.

    Will you, therefore, concede that your statement “People are incorrectly extrapolating and then attacking the RCA paper in the most offensive ways based on their own imaginary scenario.” is itself inflamatory?

  125. Dr. Shinnar: Are you kidding? The paper states that there is most likely no evidence that BSD is reversible and you see that as implying that they believe it is reversible???

    Read carefully what I wrote and what the RCA wrote. English language and logic mean that saying that “it is most likely no evidence BSD is reversible” is implying that is is possible (not likely, but possible) it is reversible. I am not saying they believe it is reversible, but they do imply that they believe it is possible it is reversible – ie, they are not fully convinced.

  126. Hirhurim
    RSZA did not restrict acceptance of organs to only those donated by Gentiles. He also allowed accepting organs donated by Jews.

    If one reads the letter by RSZA, he is explicit that he permits accepting abroad because the presumption is that the donor (deshapir azlinan betar ruba shehatorem hu nochri) and the physicians (in the second part of his letter) operating on the patient are gentile. He does not require verification that they are gentile – but as the basis is that presumption, one would not be allowed to accept organs if one knew a Jew was involved.

    so yes, technically, RSZA allows acceptance of an organ from a Jew if it occurs in a place where the presumption is donor is non Jewish – but seems clear not if one knew who the donor was..

  127. IH and Dr. Shinnar: The wording (p. 68) is “organs that have been taken from such patients.” Even though you are correct that RSZA said much more, and even allowed people outside of Israel to sign up for organ donations, the RCA paper does not go that far. It only refers to organs that have already been removed. The paper is consistent on this and does not mention anywhere the important issue of “killing” a donor to take his organs. I think this is a major flaw in the paper but it is what it is.

  128. Dr. Shinnar: I appreciate you care for logic and precise wording. Let me restate what I see on page 22-23:

    Problem: Zack Dunlop was declared brain dead, was being readied for organ donation but then fully recovered.

    Possibilities: 1) The proper tests were not performed, 2) they were administered incorrectly, 3) the results were read incorrectly, 4) they were done and read correctly but gave incorrect information (far less likely), 5) the wrong tests were done (very real possibility).

    Conclusion: Indications point to #5.

    Where in that flow do you see any indication that BSD is reversible?

  129. Gil: notwithstanding your continued pedantry, it is time to climb down from the tree. Your assertion “People are incorrectly extrapolating and then attacking the RCA paper in the most offensive ways based on their own imaginary scenario” is proven false.

  130. IH: The paper is very careful not to refer to taking organs from donors who are BSD. Can you find a place where the paper permits it? You cannot and that is intentional.

  131. Gil, this is a classic strawman. The statement from Rabbi Riskin et al. to which you have vociferously objected simply states:

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

    It’s cold out there, climb down from the tree for your own good.

  132. Yes, Rabbi Dov Linzer et al were criticizing RSZA. What does that have to do with the RCAv?

  133. Please re-read: http://organdonationstatement.blogspot.com/ as carefully as you are reading the Va’ad Halacha paper from which the RCA has correctly distanced itself.

  134. “Oh, that was easy,” says Man, and for an encore goes on to prove that black is white and gets himself killed on the next zebra crossing.” — Douglas Adams in “The Hitchhiker’s Guide to the Galaxy” 🙂

  135. I fail to understand why they even mentioned this case since it SO rare AND EXPLAINABLE.
    If they followed the Chasam Sofer YD:338 THEY WOULD UNDERSTAND THAT WE ARE NOT CONCERNED THAT THERE MAY BE A RARE CASE THAT MIGHT OCCUR THAT SOMEONE MAY BE FOUND ALIVE AND THEREFOR WAIT FOR BURIAL
    The Chasam Sofer was discussing the lav of “lo talin” and the positive mitzvah of kevurah.

  136. Yi’yasher kochakha, R’ Daat Y, for raising this important point, which is itself a matter of interest. Chatam Sofer says that we can neglect a misdiagnosis of death which would occur “once in a thousand years”. Such a remote chance does not even rise to the threshold of safek piku’ach nefesh.

    By contradistinction, R. Shalom Mordechai Shwadron, in his Shu”t Maharsham VI, no. 124, states that a one in a thousand danger may be ignored for purposes of safek piku’ach nefesh. Curiously, though, the Maharsham himself invokes Shu”t Chatam Sofer, Yoreh De’ah no. 338 in the same responsum. It is quite clear that the Chatam Sofer spoke of a thousand years. There are two possible approaches to this incongruity in the words of the Maharsham: (a) He agreed with the Chatam Sofer on the definition of life, but he disagreed with the Chatam Sofer on the definition of safek piku’ach nefesh (as per the approach of Rav Sheizvi in Eruvin 7a that one may follow one posek on one issue and a different posek on a different issue, as long as the two issues are not inextricably linked.) (b) The Maharsham uses the term “one in a thousand” figuratively. He really means “one in a thousand years”. See the chapter entitled “Elef” in Li’or Hahalakhah by R. Shlomo Yosef Zevin. R. Zevin demonstrates that, at times in halakhic parlance, elef constitutes a figurative expression, whereas at others, elef constitutes a precise description.

    [As evidence for the latter option – ROY in Shu”t Yabi’a Omer VII, Orach Chaim no. 53 rules like the Maharam Shik (that even a one in a million danger triggers lo halkhu bifiku’ach nefesh achar harov). Yet, the Yabi’a Omer immediately proceeds to approvingly quote Shu”t Da’at Kohen no. 140 to the effect that even a one in a thousand danger triggers lo halkhu bifiku’ach nefesh achar harov. Clearly, the terms “a thousand” and “a million” are interchangeable in this discussion. {However, the proof is not entirely compelling. While a thousand and a million may be interchangeable in discussing denominators where one will still invoke lo halkhu bifiku’ach nefesh achar harov, a thousand and a thousand years might not be interchangeable in discussing where one will *not* invoke ein holkhin bifiku’ach nefesh achar harov.} In any event, the Yabi’a Omer clearly rules like the Maharam Shik.]

    Cf. R. Chaim Yosef David Azulai, in his Shu”t Chaim She’al II, no. 25, who writes that a misdiagnosis of death that would only occur “once in several myriads” does not rise to the threshold of safek piku’ach nefesh.

    All of that is to say: I agree with you that the misdiagnosis of brain death should not be seen as the focus of the RCA paper. We should assume that all physicians diagnose brain death with perfect accuracy, and the focus of the RCA paper should be seen as the purely halakhic question of whether brain death – when properly diagnosed, which we know to be irreversible – is death.

  137. Thank you Rabbi Spira for your further sources and clear edification.

  138. Joseph Kaplan

    “The paper is very careful not to refer to taking organs from donors who are BSD. Can you find a place where the paper permits it? You cannot and that is intentional.”

    I don’t believe it. It makes NO sense for them to speak about using an organ that has already been removed with no involvement of the recipient when every doctor has told us that that is not how it is done. So why did the RCA discuss a case that’s so far outside the metzi’ut that exists? Maybe next time they’ll tell us about organ donations from pink elephants. The only reasonable understanding of what they wrote is that it is talking about signing up for and receiving organs while refusing to donate because it’s murder. When they were called on it, someone (seems to be you because R. Bush hasn’t said that’s what he meant nor did anyone else from the RCA) picked up on the poor draftmanship of that sentence (which fits into the poor quality of other aspects of the paper — “careful” hah!) and tries to turn black into white. You’ve convinced yourself Gil on this point, and maybe you’ve even convinced R. Bush that’s what he meant, but it doesn’t seem you’ve convinced anyone else.

  139. Hirhurim
    Shinnar: I appreciate you care for logic and precise wording. Let me restate what I see on page 22-23:

    Problem: Zack Dunlop was declared brain dead, was being readied for organ donation but then fully recovered.

    Possibilities: 1) The proper tests were not performed, 2) they were administered incorrectly, 3) the results were read incorrectly, 4) they were done and read correctly but gave incorrect information (far less likely), 5) the wrong tests were done (very real possibility).

    Conclusion: Indications point to #5.

    Where in that flow do you see any indication that BSD is reversible?

    Me:
    Hopefully for the last time (and sorry for the verbiage)
    1) The conclusion and wording that indications point to # 5 – means that position 4 remains a possibility – that the right tests were done properly, but gave the wrong result – brain death by Harvard critieria might be reversible. It might be (to use your words) “far less likely” – but is still possible. That seems absolutely clear and simple reading – and something far less likely still remains possible…..

    Now, I think that you are suggesting something else – as you stated,” But they do NOT state or imply that BSD is reversible” (the point we are contesting) – that I read as saying while logically it might seem that, the language used just reflects a conservative estimation of the data in the case- but not actually casting doubt on the irreversibility of BSD -arguing at worst for linguistic and logical inexactitude, but not that it raises substantive doubt about the irreversibility of BSD

    That is not a tenable read. First, I don’t think that there is ANY disagreement in the responsible medical community that properly determined brain death by Harvard criteria is irreversible, nor is there ANY evidence to the contrary.

    (That is a completely different issue than the argument about the reliability of the tests to determine certain other important issues – eg hypothalamic function raised by some, extent of tissue necrosis, relationship to integration of bodily functions and physiological stability, and, of course, the relationship of this determination to halachic criteria of death – all of which are legitimate arguments.)

    With that background, the question is the relevance of the Zach Dunlap case to the discussion in the RCA document Not every case in the medical literature is discussed, and clearly not in detail. Some cases are even wrongly cited (eg, footnote 21)

    If one believes that the Dunlap case just shows misdiagnosis, it isn’t relevant to the discussion. If one cites it at all, one just says that there was an error (and perhaps, that if one follows brain death criteria, one has to be sure they were properly followed – and that is a legitimate issue ).

    The detailed discussion of the case, and the importance given to it cannot be understood, unless one is implying that it suggests that maybe, even though it is “far less likely”, there is a problem with the criteria, because they may not truly predict irreversible death. The statement that this case “casts a giant shadow” clearly implies (actually, this is fairly explicit) that this what the authors meant – if the case is just an error there is no shadow – That is simple pshat in reading (what else do you think this means???)

    I don’t think that there is any other intellectually honest way of reading how the document discusses the Dunlap case (question: if ” they do NOT state or imply that BSD is reversible” – what is the shadow? )

    As Gil works as an editor, I am surprised that he refuses to read simple pshat. It may be true that there is no specific line in the article “We state that BSD is reversible” or “We imply that BSD is reversible” – but it is clearly, at the least, implied to any competent reader that they think that BSD MAY be reversible.

    What is at least useful is that Gil seems to agree that this clear point in the RCA document is indefensible – which is why he is denying it says it….

  140. To add to Noam Stadlan’s current list of complaints.
    In listing the motivation for the RCA to readdress the issue – it states p 6
    The need to revisit these issues existed as
    well, because in the years since many of the earlier rulings were issued, new medical information
    has been gained and new medical realities have come about.

    It is the suggestion that new medical information and new medical realities have raised substantial issues about brain death that is problematic – new medical realities may have made the circulatory definition of death more problematic, because the ability to support circulation is far greater – but there is no substantial issue in terms of new medical information that would warrant readdressing the issue from 1992 – indeed, there is greater medical consensus about the medical implications of brain death – (with a few outliers)- and suggesting that this was motivated by advances in medicine is highly problematic (one can think of stronger language..). There may be new halachic arguments (as Rav Spira tirelessly points out), and the halachic leadership is now different, but to suggest that this is driven by medical developments is problematic.

    Second,
    On the issue of bias, you argue that

    The study states explicitly that its goal was to evaluate the arguments and not just offer a balanced presentation. That does not detract from its honesty any more than your own presentations are understandably one-sided and passionate but still honest.

    However, the study states that

    Most importantly, it should be known that our inquiry was undertaken with only two
    preconditions: firstly, to be fully aware of the awesome responsibility that lay before us, and
    secondly, to be engaged in an unfettered search for the truth.

    The issue is not that they reached a certain conclusion – but that it seems clear, at least in the discussion that they presented, that they strongly endorsed one side from the beginning of the discussion – they were fettered by that commitment, and did not truly engage the other side (and the failure to interview Rav Walfish is just one such example. As you point out, there is nothing intrinsically wrong with such commitment – and a legal brief and passionate argument for one’s side is a legitimate activity – but one should not claim that one is starting from an objective assessment that ended up with a decision.

  141. Dr. Shinnar: Since weren’t getting anywhere, I’ll just repeat: The RCA paper offers 5 possible explanations and explicitly label as least likely that the brain death tests gave false results. You take this as implying that BSD is reversible. I take your inference as an example of a bad faith reading.

    You then apparently either dispute that there are new medical realities from 20 years ago or that they could affect this discussion. If you agree that there are new medical realities that affect this issue, then you implicitly agree that this revisitation is appropriate, even if it didn’t offer the results you desire.

    You further suggest with no real basis that the Vaad Halacha decided their conclusion before even beginning to study this issue. That is also very ungenerous of you. I expect better from someone of your strong moral fiber.

  142. Gil,
    If brain death is irreversible, then there should only have been 4 options. An option is only least likely (under the normal expository use of language) when it is possible. Impossible things are just that, impossible.
    Second, you continually accuse readers who disagree with your reading of bad faith (E.g., your last line to Dr. shinnar). However, the vast majority of those who have commented here disagree with your reading and agree with Dr. Shinnar’s. This really should prompt you both to question your assessment of the “faith” of your interlocutors as well as the appropriateness of your reading. It doesn’t need to change the latter, but it should make you question it. I have seen none of this from you, which is why you are constantly being accused of being a mouthpiece for the RCA (or R. Bush, depending on whom the writer of the comment considered responsible for the paper.)

  143. Dr. Shinnar: Since weren’t getting anywhere, I’ll just repeat: The RCA paper offers 5 possible explanations and explicitly label as least likely that the brain death tests gave false results. You take this as implying that BSD is reversible. I take your inference as an example of a bad faith reading.

    me
    We each agree that the other’s reading is an example of a bad faith reading, and I will let the readers decide…

    Hirhurim
    You then apparently either dispute that there are new medical realities from 20 years ago or that they could affect this discussion. If you agree that there are new medical realities that affect this issue, then you implicitly agree that this revisitation is appropriate, even if it didn’t offer the results you desire.

    me
    The medical consensus twenty tears ago supported the physiology behind the brain death criteria, and viewed circulatory death as more problematic. While there is always medical progress, that medical progress has only deepened the support for those two statements. It is difficult to take seriously that the progress in medicine drove this statement – which is clearly driven by the opposite viewpoint – and indeed, completely ignores the medical progress making circulatory death problematic.

    Hirhurim
    You further suggest with no real basis that the Vaad Halacha decided their conclusion before even beginning to study this issue. That is also very ungenerous of you. I expect better from someone of your strong moral fiber.

    You essentially conceded to Noam Stadlan that the statement was a passionate argument for one side, but argued for the validity of such an argument. While I have no direct knowledge of whether the committee actually started with a clean slate, and only after coming to a conclusion wrote it, the actual writing is not that of an objective, unfettered search finally coming to a conclusion – even though such a document would have been far more forceful than what they did. Instead, they wrote as an advocate from the beginning – and the failure to fully pursue certain lines of research suggest that is how they proceeded.

    I think that the paper properly reflects the thinking processes of the writers – which is quite generous of me – and draw implications.
    Gil is unhappy with the implications that the writers wrote what they thought – and that is a step in the right direction…..

  144. Thank you both, R’ Daat Y and Dr. Shinnar, for your very kind words. Vihamevarekhim yibarekhu.

    Actually, for me to be intellectually honest, I should note that HaRav HaGa’on RHS disagrees with the analysis I presented above at 7:28 p.m. Namely, in Bi’ikvei Hatzon no. 34 (p. 229), RHS rejects the Maharam Shik (YD no. 244), [unlike ROY (Yabi’a Omer OC 7:53:6), who endorses the Maharam Shik]. RHS claims that “one in a thousand” is no longer considered safek piku’ach nefesh. [RHS believes that Chatam Sofer also ruled once in a thousand is not safek piku’ach nefesh. It seems to me that HaRav HaGa’on RHS accidentally misquoted the Chatam Sofer, for Chatam Sofer speaks of once in a thousand *years*, not just one in a thousand cases. Thus, Maharam Shik and ROY appear to be on solid ground.]

    RHS also marshals Shu”t Achiezer 1:23 and Shu”t Torat Chessed, Even Ha’ezer no. 44 to support his thesis that one in a thousand cases is not safek piku’ach nefesh. In my opinion, those sources do not necessarily refute ROY, because they refer to situations of a lady who is not yet pregnant or a person who has not yet embarked upon his voyage through the desert or sea. There, we say “shomer peta’im Hashem”, and we do not concern ourselves with small risks, as R. Jacob Etlinger explains in Shu”t Binyan Tzion I, no. 137. This is different from “lo halkhu bifiku’ach nefesh achar harov”. When a recognizably dangerous situation does arrive (e.g. an avalanche falls on someone), we do have to be concerned for even small possibilities of piku’ach nefesh.

    RHS also quotes Shu”t Avnei Nezer 1:81. This, too, I think does not necessarily refute ROY. Avnei Nezer deals only with issues of rov and mi’ut in the context of idolatrous images and the observance of yom tov sheni. He says nothing about safek piku’ach nefesh.

    RHS further cites the Chafetz Chaim and the Chazon Ish (on the basis of pp. 183-184 of Pe’er Hador, chelek shelishi) as supporting his thesis. I looked in the Pe’er Hador, and what I found is that only the Chazon Ish speaks, not the Chafetz Chaim. (Any reference to the Chafetz Chaim is actually the Chazon Ish’s hypothetical speculation of what the Chafetz Chaim might do in a particular situation.) Also, the author of Pe’er Hador admits (in footnote no. 87 on p. 184) that it is not known precisely when the Chazon Ish issued the letter in which he says that someone who has faith in G-d need not concern himself with aerial raid sirens. Nevertheless, it could well be that Chazon Ish supports RHS.

    Be that as it may, the first interpretation of the Maharsham that I gave in my comment at 7:28 p.m. does accord with RHS, and to that effect RHS does rule that 1/1000 is not called safek piku’ach nefesh. True to form, RHS refers to this statistic in his 1988 symposium with RMDT regarding the definition of death. For although the bulk of his lecture is dedicated to presenting the thesis that a brain dead patient should be treated as doubtfully alive-doubtfully dead, RHS also explains that the brain dead patient is at best a gossess (and at worst a bonafide corpse), and since only “one in a thousand people” would want to have their existence extended if they were brain dead (given the very unimpressive quality of life that a brain dead patient experiences), there is no obligation to actively extend the life of a brain dead patient. Thus, for RHS, it is forbidden to desecrate Shabbat to extend the life of the brain dead patient. [This stands in contrast to RJDB’s approach to the gossess in general, where RJDB obligates desecrating Shabbat in order to heroically prolong the existence of a gossess, as he writes in Benetivot Hahalakhah III, pp. 161-178. According to RJDB, it is irrelevant whether most people would want their life extended or not; life is an intrinsic good. A key point to the dispute between RHS and RJDB of course concerns the Rema regarding the woodchopper in Shulchan Arukh YD 339:1.]

  145. [Incidentally, another point of dispute between RHS and RJDB is that because a brain dead patient can often be maintained on the machine for longer than three days, RJDB holds that a brain dead patient does not even classify as a gossess (Contemporary Halakhic Problems IV, p. 348).]

  146. R. Gil is correct here. The mistake on the part of Dr. Shinnar, Mr. Berman, and the rest seems to be an error in logic.

    The paper offers different possibilities for the Dunlap case. One of those possibilities is that, in fact, brain death is NOT reversible. The others are that brain death is reversible. The paper’s critics conclude that the paper allows for the possibility of a brain dead patient coming back to life.

    However, there is a nested possibility implicit in the word “reversible” that the critics seem to be missing. Specifically, the word “reversible” can mean two things: either 1) reversible in principle, that is, reversible in some possible world, or 2) reversible in actuality, that is, in all possible worlds. The critics thought that the reversibility being allowed was (2), and took the paper to be implying that it is possible to reverse brain death in every case. If indeed that was what the paper was allowing they’d be correct.

    But, as should be obvious, it is not. The reversibility being discussed in the Dunlap case is (1). The question is not whether it was possible to reverse brain death in that specific case, but whether brain death is reversible in principle.

    To give an example: if someone says “it is possible that tax fraud is Halakhically permissible,” that person is clearly NOT saying that under certain possible conditions tax fraud is permissible; rather, the person is stating a possibility within a possibility: that it is possible that under certain possible conditions, tax fraud is permissible. Now replace tax fraud with brain death.

    If I can make this any clearer, let me know. But it should be clear at this point that the paper’s critics are wrong, and that the paper certainly did not imply that, under certain possible conditions, brain death is reversible.

  147. The Zack Dunlap case was included, AFAIU, to cast a shadow on the *practice* of BD, not on the theory.

  148. “The Zack Dunlap case was included, AFAIU, to cast a shadow on the *practice* of BD, not on the theory.”

    Might have been a good idea if they made that clear — which they didn’t. Still time to do so if they deem this a draft and revise it.

  149. Jon in Brooklyn

    But, as should be obvious, it is not. The reversibility being discussed in the Dunlap case is (1). The question is not whether it was possible to reverse brain death in that specific case, but whether brain death is reversible in principle.

    WADR, you misunderstand the issue, and actually agree with the critics of the paper. The fundamental criticisim here leveled at the paper by RMDT, Robby Berman, Noah Stadlan, me, and others, is that the paper implies that BSD, determined by proper means, is not irreversible – whether in theory or in a particular case is not the issue – and because BSD may not be irreversible, it is not a reliable criteria. The clear meaning of the use of the Dunlap case is precisely to cast such a doubt on the validity of the criteria.
    There is a semantic issue – Gil talks that the paper never states that BSD is reversible, while I say that the paper clearly implies that BSD may be reversible – and that difference between IS and MAY BE leads to some confusion – but this Clintonesque parsing of the word is is not the issue – it is the raising of doubts about the validity of BSD as an irreversible physiological state that is the problem.

  150. Rav Folger stated that “The Zack Dunlap case was included, AFAIU, to cast a shadow on the *practice* of BD, not on the theory.”

    Bimechilat kavod torato, if that was the intent, it clearly wasn’t the accomplishment of the paper. The notion that BSD needs to be done properly, and that one need not rely upon the statement of any doctor – is even in the statement of the rabbis opposed to the RCA paper – it is non controversial, and the Dunlap case is good evidence for that. Doctors (as well as rabbis) may make mistakes – both unintentional and intended.

    If that was meant, the paper should have said that regardless of the theoretical basis for BSD, as practiced in the community it may be problematic and needs further checking – with the Dunlap case as exhibit A. The discussion of the paper clearly included the issue of the theoretical reversibility of BSD in its discussion, and one gives the authors the courtesy and generosity to assume that they wrote what they meant, and meant what they wrote…

  151. Meir Shinnar

    If I understand you correctly, you claim that the paper affirms the following proposition:

    A. “It is biologically possible (that is, it is possible under the laws of biology), though highly improbable, for a BSD patient to recover.”

    Here, it seems to me, you are a bit confused; in fact, they in no way affirm A. What they are saying, instead, is the following:

    B. “It is highly improbable that it is biologically possible for a BSD patient to recover.”

    What they are correctly concluding is that:

    C. “Given B, it is extremely unlikely that the correct explanation for the Zack Dunlap case is that he was diagnosed correctly.”

    But neither B nor C leads to proposition A. The distinction here is somewhat subtle, but absolutely crucial.

  152. Meir Shinnar

    Before you respond, consider that ALL scientific laws are based on inductive reasoning. That is, they all take the logical form, “It is highly probable that ‘all X’s are Y’s’ “.

    (Which is very different, by the way, from saying that “every X is highly probably Y”.)

  153. Glatt some questions

    Rabbi Bush should answer the following question: Does he believe that it is possible for someone to “wake up” from being declared brain stem dead, assuming all of bthe clinical tests were conducted properly.

    If the answer is yes, then he is more ignorant than I thought about the medical science of brain death.

    If the answer is no, then he should make it clear that the reason he included the Dunlap case was to stress how important it is to properly conduct clinical tests to determine brain stem death, and not to cast any shadows about those who believe that brain death equals halachic death.

  154. Glatt: I agree with you. I believe the answer is no and that it is already very clear but the Vaad Halacha should revise its paper so that someone looking to distort the paper’s words will have an even more difficult time.

  155. Dr. Shinnar: You essentially conceded to Noam Stadlan that the statement was a passionate argument for one side, but argued for the validity of such an argument. While I have no direct knowledge of whether the committee actually started with a clean slate, and only after coming to a conclusion wrote it, the actual writing is not that of an objective, unfettered search finally coming to a conclusion – even though such a document would have been far more forceful than what they did. Instead, they wrote as an advocate from the beginning – and the failure to fully pursue certain lines of research suggest that is how they proceeded.

    That is a patently ridiculous demand that would have produced an unnecessarily wordy and vague document. If the Vaad Halacha had produced such a paper, you would have pointed out “contradictions” and changes in directions, and demanded that it be rewritten — rightly so.

    At this point, you’re just looking for reasons to criticize the paper. I’m surprised you haven’t argued against the font size yet.

  156. “would have produced an unnecessarily wordy and vague document.”

    As opposed, I suppose, to the tightly written and argued and crystal clear paper they actually produced.

  157. Dr. Shinnar

    “whether in theory or in a particular case is not the issue”

    But it is PRECISELY the issue. The logical possibility of an actual possibility, is very different than the actual possibility. In the first instance, if the paper concludes on the side against the logical possibility, the implication is that brain death reversibility is (most likely) an oxymoron. In the second, if the paper concludes on the side against the actual possibility, the implication is that brain death reversibility is highly unusual – but possible.

    WADR, your reading of the paper is without subtlety. I agree with the vast majority of the criticisms of the paper, and I’m pro-brain-death-criteria. But this isn’t a valid criticism of the paper.

  158. I actually think R. Folger is right about what the paper was trying to do; i.e., “The Zack Dunlap case was included, AFAIU, to cast a shadow on the *practice* of BD, not on the theory.” The trouble is that, at best, the paper does not make that clear; at worst, it implies the opposite. (And, as has been pointed out by many, including me, this is not the only serious error with the report.)That’s why Presidential commissions sumbit drafts of their reports before the final one is published and regulations are first sent out in draft form; so knowledgable others can comment on the draft and mistakes of this nature can be corrected. Why the RCA refuses to go that route is beyond me.

  159. I thank Rav Folger for his comment, which only adds proof to the onesided nature of the paper. Because when I discussed the Dunlap case with Rabbi Bush, I offered to organize frum physicians who could be consulted and would oversee and advise any situation that involved a potential brain death. One would think that an “unfettered evaluation” would have included mention of the corrective measures that were available to eliminate the possibility of incorrect declaration. Not only is there nothing in the paper(and, as I noted in my review, no discussion similar to rav Spira’s of the halachic aspects of mistakes) but Rabbi Bush in 2008 never even acknowledged the offer(I have the email trail to counter the claim that he may not have received it).

  160. As Rabbi Student states: “Anyone looking up the Rambam’s commentary in the best available edition would have to go to 1:7 and that is certainly what the RCA paper was referencing.” But it doesn’t. It referenced 1:6. I too, like Rabbi Student, looked up the Mishna in the best most scholarly edition and it was 1:7 and I assumed Rabbi Bush would have done so as well. It seems he didn’t.

    But as Rabbi Student pointed out I am not a Talmudic scholar. I made a mistake in assuming that the listing of that mishna as 1:7 was uniform in all editions which record the Rambam. I thank Rabbi Student for taking me to task on my ignorance, and I apologize to Rabbi Asher Bush for claiming he misquoted the mishna.

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