An Introduction to the Determination of Death Debate
Rabbi Richard Weiss, M.D.
Rabbi Weiss is the rabbi of the Young Israel of Hillcrest in Flushing, NY. He is also an adjunct assistant professor of biology at Stern College for Women. As a licensed physician in New York, he has worked clinically in the field of hospice medicine.
The determination of death is one of the most challenging bioethics issues of the past several decades. Various aspects of brain death as the definitive determinant and definition of death have been extensively and intensely discussed and debated in a wide spectrum of literature. Recognizing this point—that Judaism is not unique in its continued deliberations regarding this matter—can be very useful for all who are actively engaged in analyzing the halachic view of brain death. One citation, for example, which presents a wide variety of opinions in the secular, medical and general philosophical arena, is an article by David DeGrazia in the Stanford Encyclopedia of Philosophy, entitled “The Definition of Death”, published October, 2007. One can readily appreciate the ongoing debate that extends far beyond the Jewish community. It is true that brain death has been legally accepted in almost all of the fifty United States, with some states accommodating religious or moral objections. This fact, however, has not inhibited continued healthy discussions on the matter. Similarly, continued healthy discussions in the halakhic world should be encouraged.
From a Jewish perspective it is also essential, I believe, to recognize that an issue such as determination of death cannot realistically be resolved in a definitive manner. Rabbi Dr. Mordechai Halperin, in “Establishing the Moment of Death”, published in Hebrew by the Falk Schlesinger Institute in 2007, states in the introduction that (this author’s translation), “…the topic of establishing the moment of death remains in debate among the great rabbinic authorities, and we do not have the ability to decisively resolve the matter.” It is also fundamental to appreciate that the issue cannot be unilaterally decided based on a leaning toward stringency. Rabbi Yitzchak Sheilat, in the same publication, explains that the definitive resolution of the determination of death must be precise. One cannot simply be machmir by adopting a strict view, as neither view can be considered absolutely strict. If one opposes brain death, the result is a possible loss of life of an individual in need of a vital organ. To focus exclusively on the potential recipient’s life may involve an act of homicide of the donor. To highlight the extent to which human life is valued in medical halacha in regard to transplantation, I refer to a discussion by the former Sephardic Chief Rabbi, Rabbi Eliyahu Bakshi Doron in his responsa Binyan Av. In volume 3, section 53, he presents an argument that organ transplantation in principle is without halachic license. The permit granted by the Torah to heal is restricted to treatments and procedures involving only the patient himself or herself. Transplanting organs from another individual is beyond the realm of what man’s involvement in healing should entail. He concludes by stating that practical halacha rejects this cogent view. Any treatment or modality available to man which one can save a human life or alleviate suffering is incorporated in the Torah’s license to heal.
In addition, it is very helpful to put the issue of brain death into context. According to the United States Department of Health and Human Services (organdonor.gov), about 1-2% of all deaths annually in the US are due to brain death. In 2007, the Centers for Disease Control, reported a total of about 2.5 million deaths in the US. 1-2% of that figure would equal 25,000-50,000 deaths due to brain death each year. I believe it is useful to compare that number to the total number of individuals in the United States who suffer, for example, from Alzheimer’s Dementia as of 2010. That number is over 5 million people according to the Alzheimer’s Association (alz.org). While the two conditions are not equivalent clinically, they both pose serious end-of-life ethical dilemmas. The bioethical issues which are and/or will be relevant to this population are quite profound and complex. Some of the issues include: feeding tubes, DNR, aggressive treatment of infections,…. The ongoing magnitude of issues related to Alzheimer’s Dementia is quantitatively more extensive than the ongoing magnitude of issues pertaining to brain death. Determination of death is extremely important, particularly as it relates to organ transplantation. It is, however, also important to appreciate the relative scope of determination of death as compared and contrasted to other clinical conditions.
One final introductory idea which I believe can contribute to the ongoing brain death debate was presented by the father of Jewish bioethics, Lord Rabbi Dr. Immanuel Jakobovits. In his monumental work Jewish Medical Ethics, he writes: “Religious literature has devoted much attention to the problem of ascertaining the exact moment of death. In Judaism, however, unlike Christianity, this problem has little or no purely religious significance, since there are no sacramental rites to be accorded to the dying prior to the soul’s final departure from the body… These considerations explain why Jewish law does not define the onset of death in connection with the regulations on the treatment of the dead at all. Altogether, the issue is raised only on two occasions—both among the Sabbath laws and both dealing with quite unusual circumstances.” In the section entitled, ”Recent Developments in Jewish Medical Ethics”, Rabbi Dr. Jakobovits points out that, “The question of defining the moment of death with precision has exercised the minds of Jewish jurists since Talmudic times, mainly in connection with the suspension of Sabbath laws for the saving of life, and the insistence on speedy burial. But lately the problem has been rendered more difficult and more critically acute… by the demand for viable cadaver organs for transplant purposes.” The implication of the Chief Rabbi’s comments is that any analysis of the determination of death requires careful caution due to the lack of adequate Talmudic and halachic sources. It is for this reason that a definitive halavhic conclusion may not be realistic, though a practical halachic decision must be rendered. It for this reason, as well, that the varying views on this matter are all deserving of respectful recognition.