Rabbi Yaakov Weiner / UPDATED A number of great rabbis throughout the ages have accepted breathing and heartbeat as the parameters of death. However, we witness today that a clinically dead person, displaying neither breathing nor heartbeat, may be successfully revived. Does this state of affairs clash with the definition of death of our sages? I submit that the definition of death is primarily a matter of metaphysical, and not physical, change. It is contingent upon the soul leaving the body, as we find in the Mishnah (Ohalot 1:6): “A human [body] does not cause impurity until the soul departs.” No one can perceive the soul as it leaves the body; all that is available are signs of the event. In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat. Today, however, via medical technology a clinically dead person can often be resuscitated. Such a case proves, albeit in ex post facto fashion, that the soul has not yet left the body. The definition of death has not changed; the signs have.

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

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Death and Souls

UPDATE: The last sentence was originally cut off and has now been corrected.

(see prior posts intro, I, II, III)

Rabbi Yaakov Weiner

Rabbi Yaakov Weiner is Dean of the Jerusalem Center for Research: Medicine and Halacha. He served as a pulpit rabbi at a Young Israel congregation in Jerusalem and was a Rosh Yeshiva in Dvar Yerushalayim. He was also Rosh Kollel in Beit Shemesh and Rosh Kollel of the Institute of Science and Halacha. He currently divides his time between actively pursuing the Center’s goals in Israel, and lecturing around the world on a wide variety of topics in science, technology and Jewish bioethics. This essay is based on a chapter in his book Ye Shall Surely Heal.

A number of great rabbis throughout the ages have accepted breathing and heartbeat as the parameters of death. However, we witness today that a clinically dead person, displaying neither breathing nor heartbeat, may be successfully revived. Does this state of affairs clash with the definition of death of our sages? I submit that the definition of death is primarily a matter of metaphysical, and not physical, change. It is contingent upon the soul leaving the body, as we find in the Mishnah (Ohalot 1:6): “A human [body] does not cause impurity until the soul departs.” No one can perceive the soul as it leaves the body; all that is available are signs of the event. In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat. Today, however, via medical technology a clinically dead person can often be resuscitated. Such a case proves, albeit in ex post facto fashion, that the soul has not yet left the body. The definition of death has not changed; the signs have.

Another sign of death is decapitation. The same Mishnah quoted above also teaches: “If they were decapitated, even though they are convulsing, they are impure. [The movement] is similar to that of the [severed] tail of a lizard.” The Shulchan Aruch (Y.D., Laws of Mourning, 370) rules: “One whose neckbone and a majority of the adjacent flesh has been severed, one whose back has been split open as one does to a fish, even though he is still alive [i.e. he is moving] he is considered dead and is impure. But one who is on the verge of dying or one whose trachea and esophagus were cut… are not impure until their soul departs.” One might want to compare total brain death to severance of the neck or decapitation. Even though his heart is beating or he displays bodily movement, he is nevertheless considered dead. However, if his brain is not totally dead and his heart continues to beat, he is at this point considered alive halachically. Therefore, brain stem death cannot be associated with this Mishnah.

Decapitation, however, is not always a sure sign of the soul’s departure. The saintly dean of the Volozhin Yeshiva, Rabbi Naftali Tzvi Yehuda Berlin, states (Emek HaNetziv, p. 167): “There is a long-standing tradition, transmitted from one generation of rabbis to the next, that the soul of one who is killed by decapitation [i.e. a violent death] experiences difficulty in departing even if he is definitely dead. [Any movement, therefore, is merely a reflexive reaction.] But in the case under consideration, the person has died of natural causes. As long as there are any signs of life or movement, they represent a clear indication that the person has not yet expired.” Even if total brain death is accepted as equivalent to decapitation, and the person would therefore be considered dead even if his heart continues to beat, this would only apply if brain death occurred violently. In a situation in which total brain death proceeded gradually, the heartbeat would indeed be considered a sign of life.

Additionally, Tosefot Rid (Shabbat 136a) posits that an extended period of movement refutes the analogy to a severed tail of a lizard. In a circumstance of total brain death in which the heart nevertheless continues to beat of its own accord, and where the body is supplied with oxygen and nourishment so that the heart can continue to beat for days and weeks naturally, the patient is considered alive.

Our concern is the departure of the soul, an elusive metaphysical event that can only be seen through its effects and not directly. The signs of this departure are reflected in the laws of purity as described by our sages and interpreted throughout the millennia. While medical technology has changed, the definition of death remains constant and we have to turn to our mesorah, halachic sources and our gedolim to determine which signs today demonstrate that a person’s soul has left his body.

(Next: Rabbi Basil Herring)

About Aaron Glatt

80 comments

  1. I very much looked forward to Rav Weiner’s comments on this issue. With great respect, I must note that they do not address the dilemmas presented by modern technology.
    He writes: “In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat. Today, however, via medical technology a clinically dead person can often be resuscitated. Such a case proves, albeit in ex post facto fashion, that the soul has not yet left the body. The definition of death has not changed; the signs have.”

    I think most accept that death is moment of the departure of the soul from the body. The issue is how to determine that this particular metaphysical event has occured. Rav Weiner wants to define it as irreversible cessation of circulation. Therefore, a person who is supported by machines will never die because the circulation will never cease until the power runs out. He also has not distinguished between parts of the body with circulation, so he fails to provide a basis to claim that a kidney with circulation is not a person(and therefore a kidney donor will continue to live as long as the kidney receives circulation in the recipient). Finally, since circulation can be provided by machines or CPR for hours and days after the heart has stopped beating, a person cannot be proclaimed dead for days or weeks after circulation has ceased, because it is still potentially reversible until the arteries and veins have decomposed.

    Rav Weiner says that a person who has lost circulation and respiration isn’t dead if these conditions can be reversed. In the modern era, any tissue with arteries and veins can have circulation if you try hard enough. 20-30 minutes without circulation is not long enough to be irreversible.

  2. “I submit that the definition of death is primarily a matter of metaphysical, and not physical, change. It is contingent upon the soul leaving the body”

    The discussion of when the soul departs the body is extrapolation, but the Gemara in Sanhedrin 91b is explicit about when the soul enters the body (in contrast to the Yetzer ha’Ra). To the extent one links the metaphysical soul to this debate, surely this is relevant — and a complication to the linkage you assert. No?

  3. In talmudic times it was breathing the Gemara states.
    But Rashi adds till his heart not heartbeat.They believed then that the heart only cooled the air that was inhaled.Besides Rashi ,the interpretations of the other Rishonim was until the diaphragm -related to breathing.
    Now we can test for irreversible brain and brainstem death and therefor determine irreversible loss of breathing.

  4. אנונימי

    Why does it have to be either breathing or circulation? Can’t it be both?

  5. Moshe Shoshan

    This piece is poorly written and quite disappointing. Surely there are more articulate opponents of brain death out there.
    BTW what happened to RMDT?

  6. Why must we assume that the concept of “the soul leaving the body” references a seperate ontological reality than physiological death. I am aware that chazal used such terms but I would like to see a convincing argument that they saw the category of the departure of the soul as seperate from the category of physiological death. I am not aware of such a distinction in chazal and this post has not provided one. And if there is no distinction (and I see very little reason to assume that there is one) then would not the contemporary criteria for determening physiological death also be the ones for determening the departure of the soul?

    The only authority in the post that seems to make such a distinction is the Netziv – who while obviously a great Gadol BaTorah – does not in the quote pasted above bring any really solid argument why we should posit two types of death.

  7. can someone give me a source for this statement: “In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat”?

  8. >“In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat”

    It is based on a very biased and one sided reading on the Gemara in Yoma 85a with Rashi’s commentary. A more correct statement would have been to say “According to one disputed interpertation of Rashi, at the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat.

  9. what does this sentence mean: “However, if his brain is not totally dead and his heart continues to beat, he is at this point considered alive halachically.”??

    What is “total brain death”? was this written by someone with medical background?!

  10. Where in this article does the author provide any actual argument that brain death is not death? None of these sources from Chazal, Rishonim or Acharonim are discussing such a case, or issuing rulings which would clearly transfer to such a case.

  11. While medical technology has changed, the definition of death remains constant and we can determine which signs today demonstrate that a person’s soul has left his body.
    ==============================================

    I would amend to read:
    While medical technology has changed, the [existential]definition of death remains constant (and) [yet] we can [not] determine (which ) [any new] signs today [based on current technology that] demonstrate that a person’s soul has left his body [due to our irreversible lack of knowledge as to what exact criteria chazal were testing for].
    KT

  12. Doron Beckerman

    Let’s leave aside Chazal for a moment. Based on science alone, I don’t think anyone can prove that brain death is death. There is weighty evidence, but not conclusive evidence, to that effect (Dr. Stadlan’s points notwithstanding), as per the Potts Byrne paper (which addresses Dr. Stadlan’s point regarding the severed head, albeit with some difficulty), the Shewmon paper, etc. There are functional, integrated systems in the organism, even upon brain death, that cannot scientifically be definitively ruled out as defining a living organism.

    (R’ Slifkin’s assertion that a brain dead person’s life is like that of an animal is unsupported and highly speculative. Rav Soloveitchik stated that such an assertion required a clear source from Chazal. To the best of very limited knowledge, none exists.)

    It would seem to me that relying on the Harvard criteria without regard to Halachic definitions of death would be deciding נפשות based on אומד הדעת, which is a no-no, as per RHS in B’ikvei Hatzon 37, elaborated upon in Eretz Hatzvi 35.

    As RSZA writes (Rabbi Spira can provide the exact source 🙂 ) the doctors’ קים לי doesn’t mean anything here.

    Therefore, one who thinks that the only criterion Chazal inform us of in defining (not diagnosing) death is the undiagnosable departure of the soul, one could not decide, l’maaseh, that brain death is death. Rabbi Weiner’s conclusion, therefore, makes perfect sense.

    It is only upon introduction of Halachic definitions of death that one can definitively decide that brain death is Halachic death.

    Perhaps Rav Tendler Shlita can provide some clarity on two points regarding Rav Moshe Feinstein zt”l’s opinion:

    1) Is brain death halachic death because of the irreversible cessation of spontaneous resipiration, or because of physiological decapitation (or is the latter also just a function of the former)?

    2) Why does Rav Dovid Feinstein Shlita not carry a HODS donor card – option 1?

  13. Glatt some questions

    [Editor – Just to be absolutely clear: Commenter “Glatt some questions” is not Rabbi Glatt.]

    Why does Rav Dovid Feinstein Shlita not carry a HODS donor card – option 1?
    ——————————
    I think the bigger and better question is why those who don’t believe in BSD but in irreversible cessation of heartbeat don’t carry HODS organ donor cards and choose option 2. One can still donate corneas and kidneys (for a small half hour window) after the heart stops beating. One would think that the opportunity to save lives would be enough to convince folks to become organ donors after halachic death l’chol deios.

    Perhaps there are folks who are psychologically uncomfortable with donating organs (because of superstitious reason or other reasons), but hide behind the skirt of halacha, when in fact there is no reason to.

  14. Is it obvious that the point at which a human body causes impurity (when the soul departs) is the test to be used for determining death for organ donation?

  15. Doron Beckerman,
    based on science alone – how can you prove that a decapitated person/animal connected to a ventilator is dead?

  16. “In the time of the Talmudic sages, these signs were the cessation of both breathing and heartbeat.”

    If this was is true (it is not!) then how come the Rambam and Shulchan Aruch write that the only determination of death is lack of breathing?

  17. R. Beckerman,
    You can never scientifically prove that any definition of death is correct. Science cannot tell you what death means. We have to decide what it means to be dead. Science can then (perhaps) tell us when a given organism has entered that state/met those conditions.

  18. Shachar Ha'amim

    Rabbi Weiner – is one allowed to receive organs from a BSD individual? Do they also have a soul?

  19. Rav Beckerman, please let me know which Potts/Byrne paper you are referring to. I have not found anything that they have written to be logically compelling and their position seems to be more a reflection of their theology than a well thought out philosophical approach. Thanks

  20. >Based on science alone, I don’t think anyone can prove that brain death is death

    This statement is a little tricky. Science can prove only that which has a defintion. If you say that death == irrevesable respiratory arrest, then science can, at least better than any other method, when that has occured. Science can not define death but it can establish tests for validating whether those criteria have been met.

    This of course, means that the main task of the interperter of chazal would be to try and unearth what it is withen their physiological model that corresponds to todays understnading of human physiology.

  21. Cont. Regarding the integrated systems without the brain; yes, systems can sometimes function without the brain. RSZA found that the lamb can be delivered alive after the mother has been decapitated. Does this mean that a uterus is equivalent to a live person? At some point it is necessary to decide what is needed for human life and what isn’t, and that definition needs to applied consistently to all situations that require a determination. For example, I can’t scientifically prove to you that defining life by a functioning uterus is wrong, but I can shown you that it is logically incoherent. As rav Broyde wrote: death is when the person no longer has the rights and obligations assigned to a living person. You can make an arbitrary determination as to when that point is. However, unless it includes something about neurological function, it will not be logically coherent.

  22. “R’ Slifkin’s assertion that a brain dead person’s life is like that of an animal is unsupported and highly speculative”

    I never said any such thing. Actually, I think that a brain-dead person’s life is much LESS than that of an animal. After all, an animal can move, think (to a degree), and regulate its own breathing, but a brain-dead person can’t do any of those.

  23. “While medical technology has changed, the definition of death remains constant and we can determine which signs today demonstrate that a person’s soul has left his body.”

    So what is his point? Of course we can determine which signs — based on everything we’ve seen in this Symposium that sign is called brain death. Unless R. Weiner thinks a dowsing rod might be more helpful?

  24. >So what is his point? Of course we can determine which signs

    He has not even shown yet that the ideom of the “soul leaving the body” references something concretly different than physiological death – the definition of which can only be established within a discussion which includes modern science.

  25. Chardal: I’m not sure why you are criticizing him for writing what I asked him, which is an Op-Ed style essay for general consumption, and not a paper full of proofs. This post was not supposed to prove anything. It was supposed to assert his view.

  26. Chardal: If you see death as a process rather than an event, BSD is a step in death. Maybe it is a sign that death has already occurred or maybe that it is to occur soon. The issue is exactly when in the process the soul leaves.

  27. “It was supposed to assert his view.”

    His view on what? Brain-death? Did he do that somewhere? It’s not clear at all. He just talked about the metaphysical significance of death — but not whether or not brain-death indicates this metaphysical moment has passed?

  28. Sure he does. Read it again.

  29. Chardal: If you see death as a process rather than an event, BSD is a step in death. Maybe it is a sign that death has already occurred or maybe that it is to occur soon.
    ===========================================
    IMHO the intermediate value theorom is worth considering. We all agree a walking, talking person is alive(Call this TL) a body that has not breathed or had bloodflow for a month is dead(call this TD)We all agree (I think) we are not able to detect the precise microsecond when the neshama leaves the body (which IIUC we all agree is the existential momemt of death – though iiuc some argue the neshama is a metaphysical construct made up of the mind/body interface). Chazal may just have been telling us not the moment of ytziat neshama (call this TYN) but at what point we can be sure the neshama has definitely been yotzeh (TYChazal=TYN+X). What we are iiuc are discussing is – is there a time TDC(Time of death current technology) that Chazal would have accepted such that TYN is always < TDC which is < TYN+X

    KT

  30. “The issue is exactly when in the process the soul leaves.”

    If the soul enters the body at conception (or however you wish to translate שעת פקידה) as explicitly discussed in Sanhedrin 91b — when there is no connection between bodily systems (that don’t exist yet) and the soul, according to the Gemara.

    Unless amongst all these discussions, I have missed the equally explicit Talmudic source for when the soul leaves the body. Can you remind me?

  31. Doron Beckerman

    http://lifeguardianfoundation.org/pdfs/beyond_brain_death.pdf

    I recommend reading from page 19 through 34.

    The severed head issue is addressed from page 31 and on.

  32. Rav Beckerman, i apologize that I don’t have the opportunity to repspond in detail. I will try to so so later. I would just point out that the argument on page 28 falls apart if you remove a head and support both the head and the body. According to the paper, you now have two people, or at the very least cannot explain why one part is the person and the other isn’t. I addressed the somatic
    integration issue in the post here a month or so ago( and in more detail in the fact summary that is linked)

  33. Thank you, R. Beckerman, for inviting me to offer the RSZA reference. It is Shulchan Shelomoh, Erkei Refu’ah II, p. 32.

    R’ Glatt Some Questions,
    You correctly ask at 6:26 a.m. why people (such as myself) do not carry an organ donor card following option 2. The issue is – as Dr. Stadlan pointed out in his comment last night at 11:14 p.m. – at what point is circulatory arrest irreversible. If a halakhic consensus can be reached on this point, I would certainly carry an organ donor card. But there is no consensus at the present moment, and so I see it as safek piku’ach nefesh vis-a-vis myself for my kidneys to be removed within minutes following my own circulatory arrest. In other words, a patient is circulatory arrest may be a safek gossess safek met, rather than a vadai met, until we know the circulatory arrest is irreversible. This obviously creates an enormous challenge for every Chevra Kaddisha, and indeed it is the sacred mission of the Chevra Kaddisha to swiftly bury the dead that prompted Chatam Sofer’s responsum in the first place.

  34. Doron Beckerman

    I would just point out that the argument on page 28 falls apart if you remove a head and support both the head and the body. According to the paper, you now have two people, or at the very least cannot explain why one part is the person and the other isn’t.

    As I wrote above, it seems (and certainly, my opinion is nothing more than that, and not worth much) that Rav Waldenberg’s position on this would be that the head is a human life retaining its identity (“Reuven”), and the trunk would be a [human? – need clear Raayah from Chazal to show otherwise] life that has lost its identity (John Doe). The Halachos of Yerushah, Almanah, etc., would follow the head. But any בשר that would separate from the trunk after its “death”, assuming it is a human life, would be treated as בשר הפורש מן המת and not בשר הפורש מן אבר מן החי and would be מטמא מת. (See Rambam Tumas Meis 2:6).

    [They would certainly both be טריפות]. 🙂

    Is this very weird? Yes. Is it unlikely? Yes. Completely illogical? I don’t think so. Where is the Neshamah providing life-force – in the head or the body, or both? I don’t know, but as that paper linked above says, the Neshamah isn’t bound by space…

  35. Doron Beckerman

    Thank you very much Rabbi Spira!

  36. Well this post was worth reading. Too bad his arguments are, of course, based on shut”im themselves based on faulty physiology.

    I wonder if this means Orthodoxy is going to start dealing with physicalism? Because this Orthodox Forum happened, but I think I was the only one paying attention.

    http://books.google.com/books?id=rWm3GXm5klsC&printsec=frontcover&dq=judaism+science+and+moral+responsibility&source=bl&ots=fwfZfn2bP4&sig=XI__515iFc1fmZOyhybOgTdlC1s&hl=en&ei=6zJQTfvZFoOglAetlMGgBQ&sa=X&oi=book_result&ct=result&resnum=2&ved=0CCEQ6AEwAQ#v=onepage&q&f=false

  37. The crux and problematic of the paper is

    A number of great rabbis throughout the ages have accepted breathing and heartbeat as the parameters of death

    The underlying implication is that this goes bzck to hazal, and is the majority position. If that is true, then there is a much greater barrier to new criteria. However, what seems to underlie those who are mattir BSD – as RMF and RYBS (according to RMDT and Rav Walfish, respectively – who are reliable witnesses), is that the majority opinion in hazal and poskim is that breathing is the main determination – and BSD is accepted as cessation of possibility of breathing…
    No one is arguing about the metaphysical nature of death – but rather, on what hazal and poskim truly wrote…The introduction of circulation is what is novel….

  38. R’ Jon Brooklyn,

    Thank you for your important response. When you refer to faulty physiology, you must mean the Chakham Zvi. And I fully agree with you – Chakham Zvi proves nothing in the context of brain death (-see my comment on RMDT’s article, at 12:22 p.m. today). Chakham Zvi is relevant to paskening chicken kashrut questions, not for paskening ICU questions, as RMDT and yourself have both eloquently indicated.

    By contradistinction, the Chatam Sofer is highly significant in potentially assigning a status of life to the brain dead patient, by virtue of Chatam Sofer’s reference to circulatory arrest. Not only RSZA (who ruled that the brain dead patient is potentially alive), but even RMF (who ruled that brain death=death) directs us to consult the Chatam Sofer in defining death. Presumably, RMF and RSZA both got their cue from R. Shalom Mordechai Schwadron in his Shu”t Maharsham VI, no. 124.
    http://www.hebrewbooks.org/pdfpager.aspx?req=1529&st=&pgnum=127

    What is also noteworthy is that R. Weiner has discovered a point that neither RSZA nor RMF addressed. RSZA and RMF both interpreted the Eli Hakohen episode to mean that physiological decapitation=anatomical decapitation. [For this reason, RMF said that if the brain has completely decayed, the patient is regarded as being decapitated; and RSZA similarly said that if every brain cell has died, the patient is dead.] R. Weiner discovered that Netziv did not agree with RSZA or RMF. And the Netziv is not alone; see my comments on Dec. 27 in the “Death by Neurological Criteria” forum.

  39. I was very impressed with the article in the Forwards. it addressed two of R. Bleich’s main arguments rather well. 1) some are reading Rashi anachronistically and hence finding support for a circulatory definition. 2) As to the polio example – there is a rather obvious difference between a (totally non-responsive) person who can no longer breathe on his own and an organ (the lung) that has malfunctioned. it is akin to: socrates is a man. men are living. therefore, socrates is alive.

    This article, raising hashkafic issues of a soul etc., makes for a good drasha (or perhaps even lomdus for some) but is not relevant halakhically.

  40. Dr. Bill,

    Thank you for your important response. I do believe that R. Weiner’s article is highly relevant in terms of Halakhah, because R. Weiner counters HaRav HaGa’on RMDT’s thesis that all circulatory motion in the brain dead patient is the equivalent of “pirkus”, the spasmodic consequence of decapitation. R. Weiner demonstrates that the Netziv and Tosefot Rid do not agree with RMDT.

    Of course, RMDT may still be entirely correct that a brain dead patient is dead because of an entirely different consideration, viz. the fact that a brain dead patient cannot breathe, and Chatam Sofer rules “hakol talui beneshimat ha’af”. [Whether or not this latter proposition is normative will depend on the dispute between RMF and RSZA on how to read Chatam Sofer.] But the point is that R. Weiner offered a valuable halakhic contribution in countering RMDT’s physiological decapitation thesis.

    I agree with your refutation of RJDB’s polio analogy. Since consciousness is itself a sign of life (especially according to Shu”t Avnei Nezer, YD 399 – cited by RJDB himself on p. 313 of Bioethical Dilemmas I), the polio patient is perforce alive. [Whether the same can be true for a freestanding head is, of course, subject to a discussion between Dr. Stadlan and myself in the comments to R. Glatt’s article.]

  41. Rabbi Spira, Thank you for your comments. I tend to view both the tosfot Rid and the Netziv as not paskening or discoursing in a strictly halakhic context. (i just read a fabulous letter (recently found I beleive) from RIZM ztl to the CI ztl where he argues against use of the notions/ideas of rishonim said in a non-strictly halakhic context.)

    In my limited view, I would tend to agree that it is difficult to create analogies to decapitation or to define the exact moment where a brain dead individual is analogous to one who is decapitated since we bury people before the brain is completely liquified and when there is still molecular level activity. to argue that decapitation roughly equates to when the brain is unable to control respiration (and signalling has permanently ceased between the brain and the body) seems reasonable but hardly indisputable.

  42. Doron Beckerman wrote: “Let’s leave aside Chazal for a moment. Based on science alone, I don’t think anyone can prove that brain death is death. There is weighty evidence, but not conclusive evidence…

    I took one of the central points of this essay to be the disconnection of Chazal’s notion of misah from science. There may be a scientific test that matches 1:1 with cases where misah has occured, but we don’t know that without presuming our conclusion. RYW is defining misah in spiritual terms, meaning that science can’t touch the subject at all, conclusively or inconclusively.

    His later comment, when he suggests that a head without a body might be a person and “Where is the Neshamah providing life-force – in the head or the body, or both? I don’t know…” is to my mind more in line with the issue this essay raises.

    In any case, it MIGHT BE a machloqes on Yuma 85a, See the rejected hava amina right before R’ Papa. The gemara rules out tying a machloqes about whether you check breathing at the nose vs chest motion to a machloqes about whether a baby is formed from the head down of from the middle outward. But still, what is not necessarily ruled out is the notion that the machloqes between using the two tests is head vs body (top vs middle).

    I found a sentence in the first essay which touches on the same idea. R’ Dr Glatt writes “This controversy does not, and cannot, have a simple scientific resolution, despite what anyone may claim. Science does not and cannot answer metaphysical questions.” The assumption that misah is a biological thing itself requires proof.

    And even if it were, we would need to know which biological event. We need to go from diagnostic statements by Chazal back to reverse-engineer the medical change and from there find if we have more precise ways of measuring it, ones that less rely on chazaqah (presumption).

    -micha

  43. Doron Beckerman

    R’ Micha,

    Your point is well-taken, and I think it is implicit in the totality of my first comment. But a metaphysical definition of death does not exclude the possibility of a concomitant physiological one.

    If science could irrefutably prove that brain death is death, we would have both a physical and metaphysical definition of death. Since the scientific evidence for brain death defining death is weighty but inconclusive, we are left with Chazal – who, in RYW’s view, only provide us with a metaphysical definition.

  44. Doron Beckerman

    I see where I’m wrong. I should revise my comment from “brain death defining death” to “brain death being the determinant that the organism is dead.”

  45. Rav Beckerman- Death of a human being is the irreversible cessation of human life(a purposeful distinction from life in general). However, in the non-halachic realm the definition of human life is a value judgement that is informed by a person’s consideration of what human life exactly consists of. One person may say that it is the loss of personal identity. Truog and Miller will say that death occurs only when all biological activity ceases, which means every single cell has to be dead. Others will say loss of consciousness. Others may say the loss of the soul, but then they have to establish exactly what is meant by that and how to determine it. If death is the loss of the soul, then the determination of death is actually the determination of the first time one knows with certainty that the soul has left, and it is not neccesarily the exact time of departure of the soul, since that is a metaphysical concept not easily measured. The place for science and logic is 1) to assess whether a definition and the accomanying criteria produces the one thing that can be measured- irreversibility 2) apply the definition to all technologically possible situations and assess if the results are logically coherent and produce results consistent with accepted notions of life and death and 3) provide a scientific basis for accepting that the application of a certain set of criteria produce results that are consistent with a stated underlying concept. .
    By the way, my article here: http://www.hods.org/pdf/Problems%20Defining%20Life%20and%20Death%20by%20Circulation.pdf illustrates the problem with defining death using the Byrne/Potts approach. Even though the article addresses halachic definitions, the problems it identifies are applicable to any definition that neglects neurological function. In fact Byrne and Potts are at an even greater disadvantage in that they do not have the Halachic paths that might ameliorate some of the problems identified. I will be happy to address any other issues raised by their position.

  46. No one noticed the physicalism again. I shouldn’t be surprised. I think that’s what’s underlying the debate though.

  47. The crux of this post is the assertion that “the definition of death is primarily a matter of metaphysical, and not physical, change.”

    So, I again raise my question to Rabbi Yaakov Weiner and his proponents of the metaphysics angle in this debate:

    There is an explicit black-and-white pronouncement in Sanhedrin 91b — in Perek Chelek, which is certainly germane to any discussion of the metaphysics — that asserts the soul enters the body at conception (or however you wish to translate משעת פקידה) and not at the time of fetus formation (or however you wish to translate משעת יצירה).

    No bodily systems are present for weeks after conception. And I do not think this is an anachronism. So, it is reasonable to conclude that this sugya demonstrates that soul (נשמה)is NOT explicitly related to any given bodily system according to Chazal.

    Further, one would expect that if Chazal did have a linkage about soul (נשמה) to the body via a specific bodily system, then there would be a corresponding “soul leaving” sugya in Perek Chelek to offset the “soul entering” sugya. [As opposed to deriving meaning out of Mishna Ohalot 1:6 and Gemara Yoma 85a].

    Net net: it seems to me that introducing Jewish metaphysics into the BSD death as halachic death debate opens more questions than it resolves. I am happy to be educated by its proponents – but, please include an explanation of why this seemingly very relevant sugya from Sanhedrin has been omitted in these discussions.

  48. Shachar Ha'amim

    “Net net: it seems to me that introducing Jewish metaphysics into the BSD death as halachic death debate opens more questions than it resolves.”

    It seems to me that the essay here is just some way to skirt the real issues. couch it all sorts of “frumpeak” etc. so as to avoid dealing with it. yet – as you corretcly note – it raises even more questions

    so I posit my question to Rabbi Weiner once again and expand it – is one allowed to receive organs from a BSD individual? Do they also have a soul? Do non-jews have souls? Are the general laws of murder for non-Jews different than for Jews?

  49. Shachar: is one allowed to receive organs from a BSD individual? Do they also have a soul? Do non-jews have souls? Are the general laws of murder for non-Jews different than for Jews?

    I can’t speak for Rabbi Weiner but I would answer: 1) that is important but a side question, 2) yes, 3) yes, 4) no.

  50. IH: Aren’t you proving Rabbi Weiner’s point by stating that the issue is metaphysical and not physical?

  51. R Doron Beckerman replied to my comment, saying: But a metaphysical definition of death does not exclude the possibility of a concomitant physiological one.

    Actually, I think it does. What I would say as an alternative is “a metaphysical definition of death does not exclude the possibility of a concomitant physiological diagnosis.” IOW, it could well be that death is metaphysical, but we could know with certainty what kinds of bodies souls stay connected to in the way we call “chai” and which we don’t, as well as how to determine which set either given body is in.

    RDB continues: If science could irrefutably prove that [brain death being the determinant that the organism is dead], we would have both a physical and metaphysical definition of death.

    My point is that you can’t prove or disprove that brain death is a determinant death because the question includes defining the word death itself. We don’t agree on what it is we’re determining. Science could tell us how to better determine which set a body is in by giving us techniques that provide more certainty and reduce reliance on chazaqah. But the question of defining which sets are relevant to halakhah simply isn’t a scientific one.

    -micha

  52. Doron Beckerman

    R’ Micha,

    On the first point, I don’t think there is any preclusion of one when the other exists. Death is when the soul leaves the body. From a physiological standpoint, death is when, say, circulation has ceased. Water can theoretically be defined by either its completely unique physical or chemical properties. Death can be defined by a physical or metaphysical occurence.

    Think of it from the reverse angle – assuming that death is the departure of the soul, you are saying that Chazal (or the Torah) could not have given a physiological definition of death, like hadam hu hanefesh, or in RHS’ words – zohi hagdaras chiyus bva’al chai – mah shehadam zorem ba’orakim .

    On the second point, as Dr. Stadlan (basically) said, science (and logic) can eliminate all other options, unless you define death as something entirely out of any normative understanding.

  53. I am saying that “death” is a term that admits multiple understandings. Deciding which is halakhah’s requires back-engineering from Chazal, who only mention diagnostic criteria. And we don’t even know of those which are actually diagnostic and which are given as good enough to establish chazaqah.

    I’m not saying that death is an incomprehensible mystery, but that its definition is itself part of the machloqes. We aren’t just arguing about how to measure death, or when we can assume it occurred, but even what death is supposed to mean as an abstract concept.

    -micha

  54. Doron Beckerman

    I agree with your comment (other than a flat statement that Chazal only provided diagnostics, which RYW agrees with, but apparently RHS does not), but arguing about the definition of death, which has potential multiple understandings, doesn’t preclude brain death being the determinant of death (i.e. that is how we determine that the organism is dead. I switched away from “defining death” on purpose) by whatever of multiple understandings you can think of.

    I don’t think anything I said contradicts your last comment, but correct me if I am wrong.

  55. I would have said that RYW believes that Chazal provided diagnostics that establish a chazaqah of misah, but RHS believes these diagnostics actually match 1:1 with misah. RHS works in a Brisker world where ideological questions have little to do with pesaq, and therefore he only uses the word “misah” in a pragmatic sense.

    I wasn’t asserting that any particular framing of the question precludes brain death. I was saying that the question when properly framed precludes the notion that scientific and technological advances can make either position more compelling.

    -micha

  56. Doron Beckerman

    I don’t think that that is what RHS means. He writes, in reference to paskening the issue based on current knowledge:

    ורק אילו היתה קביעות רגע המות בזמן התלמוד תלויה באיזה תנאים, אשר בזמן ההוא היו מבררים נוכחותם עפ”י חכמי הרפואה באופן פלוני, ניתן להאמר שבזה”ז אפשר לנו לברר נוכחותם באופן אחר עפ”י רופאי זמננו)
    אבל לשנות את עיקר הגדרת המות מכפי חכמי הגמרא וקביעותם, זה נ”ל שאי אפשר, ע”פ יסודו של החזו”א הנ”ל.

    Seems straightforward to me.

    I’m saying that brain death, in theory, can be determinant of death regardless of how you answer the question, provided you aren’t outlandishly defining death.

  57. My comment about RHS isn’t based on his wording, but on his underlying worldview. When you speak Brisk, you don’t speak about ontologies, you speak about “chalos sheim”. “Meis” is reduced to a pragmatic halachic category, somewhat detached from the actual question of death. But in your quote, RHS speaks of “gedeiras hamaves”, a halachic limit.

    (Excuse me, I have a chip on my shoulder about Brisker Derekh, and its leading people away from concentrating on the relationship between halakhah and deveiqus, sheleimus, and spirituality in general. Or, perhaps more accurately: How a culture of frumkeit rather than ehrlachkeit created people who are drawn to Brisker Derekh rather than some of the other alternatives. And then when they want spirituality, it becomes a matter of finding new practices [eg Carlebach Minyanim], and din remains detached.)

    I disagree that brain death could in theory be a diagnostic that correlates 1:1 with death, for every reasonable definition of death. E.g. what if death is defined in terms of potential for future consciousness — at least, death WRT human life. I think that’s reasonable, since it’s arguably free will that makes us human (e.g. Meshekh Chokhmah on “tzelem E-lokim”). That would make brain stem death overly narrow. OTOH, what if it really is based on the pasuq’s metaphor of “vayipach be’apav” and a person on a breathing machine whose brain has nothing to do with his breath still really isn’t a meis? That regardless of the state of the brain, the neshmah won’t take its leave because there is neshimah?

    This pesaq is possible if the brain went to mush case in Ohalos is about a chazaqah that people in those days couldn’t breath without a functioning brain — and today that chazaqah isn’t true.

    -micha

  58. Interestingly, She’iltot DiRav Achai Ga’on (Parashat Emor, no. 103), asserts that “Where a person has fallen, and his neckbbone and the majority of its accompanying musculature is broken, even though his soul has not departed, he is dead, and his soul is merely convulsing inside of him as a prisoner (“viharzukeih bi’alma hu dimiharzika beih nishmateih”), for Zeiri said [in the gemara Chullin 21a] that if his neckbone and the majority of its accompanying musculature is broken, he contaminates in the tent [as a corpse] for it is written [regarding Eli the Hight Priest] ‘and his neck broke and he died.'”

    [N.B. The Shei’itot’s version of the gemara in Chullin 21a regarding Eli Hakohen is different than our Vilna Shas manuscript. The possible significance of this variation has been discussed in the “Death by Neurological Criteria” forum, comment on Dec. 27 at 5:53 p.m.]

    Here, we find a remarkable statement by the She’iltot that death can occur even without the departure of the soul from the body. The way To’afot Re’em explains the She’iltot, although the soul has not yet left the body, it is no longer associated with the body either.
    http://www.hebrewbooks.org/pdfpager.aspx?req=7546&st=&pgnum=340
    So maybe it’s just a question of poetic semantics. A person is certainly dead if the soul actually leaves the body, but he is also dead even if the soul has not yet actually left the body but the soul is dissociated from the body.

  59. R Shalom Spira: The relationship between soul and body is complex. “Shehechezarta bi nishmasi” — meaning that sleep is also some kind of departure of the soul from the body. That which you’re calling “poetic semantics” is probably a deep, complex, and potentially unfathomable (ie choq-producing) topic.

    -micha

  60. Leon Zacharowicz MD

    I’ve not been able to follow the hundreds of posts in this ongoing discussion, but here are a few comments:

    1) Remarks from persons here, particularly those who are anonymous, attacking any of the rabbis who contributed to this online discussion are inappropriate to put it mildly. By the way, this chapter exerpt is from a book that is more than a decade old. It’s one thing to say “I don’t understand Rabbi Weiner’s position,” it’s quite another for a layman to say “what Rabbi Weiner has written is irrelevant” or something along those lines. We’re talking about halacha, and Rav Weiner is considered in halachic circles to be a major posek in medical halacha. It’s at best disrespectful to publicly attack a rav in such manner, and cowardly to do so anonymously. I suspect at least part of the reason other rabbis have not provided contributions is related to this sort of commentary.

    2) About 2 weeks ago, I suggested that those interested contact me about setting up a ‘yarchei kallah’ type program on this sugya, similar to the yarchei kallahs I’ve helped Rabbi Weiner run in Jerusalem and around the world since 1998. These chavrusa-style learning programs have included shiurim by some of the most renowned halachic authorities and experts worldwide, including (partial listing): Rabbi E. Blech, Rabbi Y. Breitowitz, Rabbi Mordechai Eliyahu ztl, Rabbi Zalman Nechemiah Goldberg, Rabbi Jacobowits, Rabbi Kaufman, Rabbi Simcha Bunim Lazerson,Rabbi David Morgensten, Rabbi Yehoshua Neuwirth, Rabbi Hershel Schachter, Rabbi Dr. Avraham Steinberg, Rabbi Moshe Sternbuch, Rabbi Mordechai Willig, Rabbi Yitzchak Zilberstein, and others.

    So far, NOT ONE person has contacted me. This is telling. I again respectfully ask Mr. Berman and Dr. Stadlan: Why not learn these sugyas in depth, “inside,” with the sources, and then have a chance to hear what the major poskim have to say? One can then, in an appropriate fashion, raise questions, make suggestions, and hear what the poskim have to say. This certainly would be preferable to the kind of public comments here and in previous posts which disparage certain rabbis, and make all sorts of unsubstantiated claims (such as someone saying he spoke to 3 of the rabbis on the RCA committee, etc).

    3) I again respectfully remind readers that Rabbi Y.B. Soloveitchik (who, according to what Rabbi Aharon Soloveitchik ztl told me, did NOT endorse “brain death”) expressly forbade discussion, even in a shiur, of a topic in medical halacha which was less sensitive than this topic. I find it disturbing that those who view themselves as the Rav’s students disregard his decision on this and engage in a public discussion of matters which can lead to serious problems. Those of us who adhere to his decision and to those of other authorities in this matter are constrained from responding in this public forum.

    I probably will not have time to read and respond to the various comments, including the likely personal attacks, that will now ensure, but I appreciate having been given the opportunity to comment again–and I hope Mr. Berman and others will one day take me up on my decade-old offer to “sit and learn” this topic in the proper venue.

    Respectfully,

    Leon Zacharowicz

  61. Leon Zacharowicz MD

    Typo: I meant to write “Rabbi Y.B. Soloveitchik ztl.” — LZ

  62. Doron Beckerman

    R’ Micha,

    Not going to get into the Brisk thing, too far afield.

    Re: brain death.
    Definition 1 – take whole (physiological, not necessarily every cell) brain death.
    Definition 2 – What does the breathing have to support to constitute supporting a human being?

  63. Dr. Zacharowicz- one can always learn more, and I appreciate your offer. However, the implication of your statement, which I deeply resent, is that I haven’t learned enough, and if only I learned a bit more and with the proper ‘gedolim’, I would see the error my ways. I can always learn more, it is true, but I will stand up and defend the honor of those who have taught me. You are not the only source of Torah knowledge extant, and your Gedolim are not the only Gedolim. Both Robby and I, in other comment sections(I have lost count of the number of times you have repeated this offer/insult) have offered to participate, provided that we have an opportunity to present what we feel is information that is crucial to the issue. So far YOU have not taken me up on the offer, and I assume that you have not asked Mr. Berman either.

    Many questions and challenges have been raised about th circulation definition of death, and it is a pity that a respected posek such as Rabbi Weiner did not take the opportunity to address them. Perhaps you can encourage him to do so, even outside the Yarchei Kallah format, so that even non participants can benefit from what he has to say

  64. Dr.Zacharowicz-.I agree with Dr.Stadlan’s comments that your use of the Yarchei Kallah appears to be a putdown of any other “inside” learning that many of us have done with other Gedolim and experts in this most important area.
    I would add that the short period of the Yarchei Kallah would only begin the process.Any learning should further have presentations of the different views in understanding all the sources.

  65. UPDATE: The last sentence of this post was originally cut off and has now been corrected.

  66. “we have to turn to our mesorah, halachic sources and our gedolim to determine which signs today demonstrate that a person’s soul has left his body.”

    So, I again raise my question to Rabbi Yaakov Weiner and his proponents of the metaphysics angle in this debate:

    There is an explicit black-and-white pronouncement in Sanhedrin 91b — in Perek Chelek, which is certainly germane to any discussion of the metaphysics — that asserts the soul enters the body at conception (or however you wish to translate משעת פקידה) and not at the time of fetus formation (or however you wish to translate משעת יצירה).

    No bodily systems are present for weeks after conception. And I do not think this is an anachronism. So, it is reasonable to conclude that this sugya demonstrates that soul (נשמה) is NOT explicitly related to any given bodily system according to Chazal.

    Further, one would expect that if Chazal did have a linkage about soul (נשמה) to the body via a specific bodily system, then there would be a corresponding “soul leaving” sugya in Perek Chelek to offset the “soul entering” sugya. [As opposed to deriving meaning out of Mishna Ohalot 1:6 and Gemara Yoma 85a].

  67. Perhaps that is why R. Weiner writes: “No one can perceive the soul as it leaves the body; all that is available are signs of the event.”

  68. Shachar Ha'amim

    “Hirhurim on February 8, 2011 at 9:09 am
    Shachar: is one allowed to receive organs from a BSD individual? Do they also have a soul? Do non-jews have souls? Are the general laws of murder for non-Jews different than for Jews?

    I can’t speak for Rabbi Weiner but I would answer: 1) that is important but a side question, 2) yes, 3) yes, 4) no. ”

    if those are the answers to 2, 3 and 4, then the answer to 1 MUST be a resounding NO!!! How can one think otherwise. And why is this a side question – this gets to the crux of the issue.

    BTW, I have no problem if Orthodox Jewry (or even certain wings or Orthdox Jewry) declares that it is against BSD as a definition of death and thus refuses to dontate AS WELL AS receive organs. Sure there is a large public policy issue here regarding saving lives, etc etc. but so too are there public policy issues and saving lives with religious groups that refuse to go to doctors or innoculate with vaccinations and a whole host of other issues.
    The problem is that the SAME RABBIS who advocate against organ donation and BSD as a legitimate halachic definition of death encourage their parioshoners to obatin extra health insurance to cover transplants (or transplants abroad in terms of Israeli..). They HAVE NOT come out and said that people should not receive transplants of organs (except for one or two notable exceptions). This is not a side question!!

  69. Shachar: if those are the answers to 2, 3 and 4, then the answer to 1 MUST be a resounding NO!!!

    If you say so.

    BTW, I have no problem if Orthodox Jewry (or even certain wings or Orthdox Jewry) declares that it is against BSD as a definition of death and thus refuses to dontate AS WELL AS receive organs.

    I think that’s an important statement that not everyone is willing to make.

  70. “Perhaps that is why R. Weiner writes: “No one can perceive the soul as it leaves the body; all that is available are signs of the event.””

    Perhaps, but his (restored) concluding sentence belies the woolly sentence you quote. R. Weiner is advocating a metaphysical approach that appears to be at odds with the explicit sugya I reference.

    Surely, someone must have noticed this issue and developed a rationale in the Shut literature???

  71. R’ Shachar Haamim,

    Yi’yasher kochakha; I agree with you that if cannot donate one cannot receive (as per my comment on RMDT’s essay, yesterday at Feb. 8, at 8:24 p.m.) I would add that all Orthodox Jews must observe the same practice regarding the definition of death by unanimous consensus. Either we all regard brain dead patients as safek alive (as RSZA ruled), and therefore none of us donate or register for organs, or we all regard brain dead patients as definitely dead (as RMF ruled), and therefore all of us donate and register for organs. There cannot be two different doctrines of death in a functional Orthodox Jewish community. We are all responsible to save each others’ lives by virtue of “lo ta’amod al dam re’akha” (as per Leviticus 19:16) and by virtue of “vachai bahem – vilo she’yamut bahem” (as per Yoma 85b). We are our brothers’ keepers. That’s why I commend our Rosh Yeshiva R. Student for hosting this beautiful Torah symposium, which allows talmidei chakhamim to present halakhic proofs to one another and hence strive toward achieving consensus. Consensus of the Gedolim is imperative on the laws of who is alive and who is dead.

    Of course, there is also the possibility of embracing RSZA’s chiddush regarding the Noahide Code. However, this itself represents an independent RMF vs. RSZA controversy.

    I think that the nations of the world following these discussions on our website are saying with admiration “rak am chakham vinavon hagoy hagadol hazeh” (Deuteronomy 4:6). [HaRav HaGa’on RMDT specifically quotes that verse in his original 1988 symposium with HaRav HaGa’on RHS.] They are impressed by the scholarship and the morality of Klal Yisra’el, which is learning and working with great diligence to determine the bioethical definition of death. The nations of the world themselves invited both HaRav HaGa’on RJDB and HaRav HaGa’on RMDT in 1980 to testify before the White House on this topic. The nations of the world know (consciously or subcounsciously) that the Jewish People is chosen by HKB”H to be the bearers of the Torah, and that ultimately only the Torah can give the true answer on the bioethical definition of life.

  72. Somewhat unrelated question: If one holds that a decapitated person could still be alive, as a result of the location of the Neshomo, would this have implications when it comes to Psik Raisha?

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