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

Print Friendly, PDF & Email

Dignity in Debate

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

Rabbi Basil Herring

Rabbi Basil Herring is Executive Vice President of the Rabbinical Council of America. He previously served as Executive Chairman of The Orthodox Caucus and the rabbi of congregations in Kingston NY, Ottawa Ontario and Atlantic Beach NY. His books include Jewish Ethics and Halakhah For Our Time: Sources and Commentary.

Note: In what follows I speak only for myself, not in my capacity as Executive Vice President of the Rabbinical Council of America. I also do so as the author of a halachic textbook that includes an extensive discussion of Brain Death in Halacha that pointedly did not take a position on the issue.

Few would reasonably deny that when it comes to our dealings with each other, we Jews are a particularly passionate people. Of course, holding strong convictions is a good thing – and might even be a sine qua non to survival when other nations have disappeared – to the extent that it generates uncompromising commitment to our deeply held beliefs and moral principles.

But when passion leads us to intolerance and invective, it not only diminishes the cogency of our positions, it more ominously undermines the very warp and woof of the moral fabric that holds us together as a community and people.

Take the debate in the wake of the much-discussed Brain-Stem Death paper of the Vaad Halacha of the RCA. The paper was criticized in sensational language as, among other things, being one-sided and replete with errors, and advocating immoral policy positions. I will not gainsay the claim that the paper was not a dispassionate treatment of the question of what are the correct criteria to ascertain that the halachic moment or moments of death has occurred. Why should distinguished authors, after years of research, withhold their evaluations of evidence? But let no one be misled: far from being a hatchet job, as its critics would have us believe, the paper was a serious treatment of a highly complex and confusing topic, at the intersection of halachah, science and medicine, incorporating careful – even if not perfect – research by thoughtful people in presenting numerous conflicting viewpoints.

Why then did some of the paper’s critics level patently false charges? Why did certain media outlets provide a willing platform for certain incendiary sentiments? I will grant that they meant well, believing as they do that their view saves lives. Or, in the case of the media, that providing a forum for vociferous communal debate and open argument over life and death issues is a valuable public service. But good intentions do not justify questionable means, such as the willful misrepresentation of opposing views. Cases in point: in spite of what its critics would have us believe on the following specific matters, the research paper is explicit in saying that it does not purport to represent RCA policy, and the paper itself does not take a formal position; not only does the paper never state that brain death is reversible, it describes a case cited in favor of such a statement and concludes that it is irrelevant; the paper makes no distinction between Jews and Gentiles and certainly does not permit or advocate taking specifically Gentile organs; furthermore, the paper never considers taking another’s life to save one’s own or accepting organs in general. A close reading of this carefully worded document will bear out all these points.

What is especially regrettable in the current brouhaha is that a few passionate individuals took a very sensitive and complex halachic issue and laid it bare in the most charged terms in front of the whole world, Jewish and Gentile, Orthodox and non-Orthodox, halachically knowledgeable or otherwise, to advance their own positions, while misrepresenting the views of others, including those of leading Torah authorities in America, Israel, and Great Britain. Some critics in their zeal even took to public rabbinic petitions (in themselves, the digital equivalents of what many deride as demeaning rabbinic broadsides) that included accusations of ethical insensitivity on the part of highly respected rabbinic leaders. Are signed public petitions by rabbis, many of them non-expert in these matters, to say the least, now to be the mechanism by which halachic debate and decision is to take place in our community? It is certainly important that the larger community be aware of and even participate in informed halachic discussions dealing with important topics of current concern, such as this. Of course, we should and do welcome the democratization and sharing of Torah knowledge and personal opinion. Thank God for the Internet and its diverse voices. But – for heaven’s sake – there is a time, a place, a tone, and an appropriate forum for everything. And when it comes to a halachic issues such as this, inflammatory sound-bites and accusatory petitions, even if attached to rabbinic names, are not among them.

Which brings me to an essential point regarding the Vaad Halacha paper on Brain Death that many have overlooked. It was an internal RCA document, never submitted to the public or the media but only shared with RCA members, intended to further internal rabbinic discussion that would empower local rabbis to better discuss, debate, and decide how they would guide their congregants and others in extreme situations. The RCA includes vigorous, informed, and respectful internal debate on such topics, and the subject has been and continues to be discussed internally. Dissenting views are heard (see for instance the RCA sponsored blog, Text & Texture, edited by R. Shlomo Brody, who himself holds a pro-BSD view). The RCA was attempting to empower local rabbis by providing them an additional tool rather than a centralized psak. But the critics instead portrayed it as a fully-formed official RCA policy and directive, and proceeded, in incendiary terms, to conduct a concerted campaign against it, its authors, and the world-renowned poskim whose views they did not agree with, even demanding its retraction, while claiming the ethical high ground. Lo zu ha-derech, this is not the way.

In this cacophonous debate, there is an overarching ethical imperative, and it is this: in contemplating the mysterious moments that separate life and death we need to show a humble recognition of our own limitations, with due sensitivity to the doubts and ambiguities that are so often characteristic of the truth. In such complex matters, we ought to trumpet our own certainties less, while being more open to hearing from informed and thoughtful others, before coming to our own considered conclusions. Respectful dialogue, hearing other viewpoints, acknowledgment of doubt and uncertainty, accepting the oft-paradoxical nature of truth and reality – these are not signs of weakness or confusion, but of wisdom, courage, and ethically responsible discourse. Would that more in our community – rabbis, medical professionals, social activists, journalists and concerned individuals throughout the Jewish community –understand and embrace such a path.

Now that is a cause that we ought by all means support, with all the passion and vigor at our disposal.

(Next: Rabbi Michael J. Broyde)

About Basil Herring

Rabbi Basil Herring PhD has headed a number of congregations, taught at various colleges, published a number of volumes and studies in contemporary Halachah, medieval Jewish philosophy and Bible, and best Rabbinic practices. A past Executive Vice President of the Orthodox Caucus and Rabbinical Council of America (the RCA), he is the editor of the recently published Avodat Halev Siddur of the Rabbinical Council of America.


  1. More whining about “charged language”. Can’t we all agree to grow a thicker skin? If a prominent posek decides to use strong language against other poskim, must we really complain about it at such length?

  2. This is much the same as the first contribution, and adds as little. As for the statements of the paper he claims were misrepresented, they are all examples of statements whose readings are disputed (does the paper claim brain death is reversible or not), or not really the point (no one, or at least no one speaking coolly, has claimed that the paper explicity distinguishes between Jews and non, only that that is the upshot of the discussion). Finally, saying the paper does not take a formal possition is not the point. As he himself states earlier, the author indeed reached a particular conclusion.
    Really Gil, the more this symposium goes on with no new contribution to the substantive issues that were being discussed before the symposium began, the more depressed I get. If this is the best that can be presented in one of the most active forums for discussing these sorts of issues, what hope is there for actually working these things through. And if you say they do not need to be worked through here, but only amongst the poskim, then you have truly lost touch with modern orthodoxy.

  3. With all due respect to Rabbi Herring, the first step to recovery is to break out of denial.

    The paper by (seemingly calculated) omission on P. 68 does make a distinction between Jews and Gentiles and does permit or advocate taking specifically Gentile organs.

    “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.”

    A reasonable decoding of this statement is:

    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).

    The best way to tone down this aspect of the debate remains for the Va’ad Halacha to clarify its currently misleading statement on p. 68.

  4. These readings are only disputed by people who are so invested in the denunciations that they refuse to admit they are wrong. There is absolutely no place in the RCA paper where a distinction is made between Jews and Gentiles. Saying anything to the contrary is not just a misrepresentation but a nasty and dangerous one.

    IH: I’ve already explained why you are reading that wrong. But even if you weren’t, you are extrapolating from a document and not stating what is in it. That is not a fair tactic.

  5. Finally, saying the paper does not take a formal possition is not the point.

    That actually is precisely on point. One of the many misrepresentations of this paper is that it representations a change of policy for the RCA. The truth is that it is not and does not even take a formal position.

  6. See under: Exegesis.

  7. Most of us do not care whether the paper is the “official” RCA position. The problem is that a “resource” for rabbis provided by an official RCA arm was so skewed and incomplete. As for the reading only being disputed by those who are so vested in denunciations that they cannot admit that they are wrong I respond that R. Herring’s reading is only supported by those so vested in supporting the paper that they cannot admit that they are wrong. There, now we are even and get back to the clear fact that many people, about whose motives you have _no idea_ dispute this reading. This means that such a reading is not a falsification even if it can be denied. I thus return to my primary point that R. Herring adds nothing, not even a list of places where those who dispute the paper have falsified things.

  8. Glatt some questions

    If the original RCA paper was a fair and balanced treatment of the subject, as Rabbi Herring would want us to believe, why did the RCA have the need to issue a clarification statement emphasizing the fact that the RCA does not take a specific position on the halachic definition of death?

    I think it’s precisely because the Bush document was so one sided that the clarification statement was necessary.

    Much, if not all, of the criticism about the paper that Rabbi Herring found so offensive would have occurred had the original paper been more balanced and complete.

  9. “Really Gil, the more this symposium goes on with no new contribution to the substantive issues that were being discussed before the symposium began, the more depressed I get.”

    So far, I and V were complaints about process, without addressing substance at all. And IV posited the existence of an elusive metaphysical event of death which, almost by definition cannot be used by poskim and doctors and doesn’t really answer any of the questions posed to the 2 primary sides of the current debate.

    On the other hand, II and III dealt with substantive points with immediate relevance both to the definition and actual practical implementation of brain death criteria.

    It’s funny how the debate plays itself out.

    Let’s all hope R. Broyde can save this “Symposium” from itself.

  10. It was an internal RCA document, never submitted to the public or the media but only shared with RCA members,

    If so, why was it not placed in the password-protected, members-only section of the RCA website along with “other extensive rabbinic and Torah resources”?

    It is available

  11. R’ Herring here: It was an internal RCA document, never submitted to the public or the media but only shared with RCA members, intended to further internal rabbinic discussion that would empower local rabbis to better discuss, debate, and decide how they would guide their congregants and others in extreme situations.

    RCA Press Release, January 7, 2011: The study disseminated by the Vaad Halacha was the product of many years of exploration by that committee and was meant to serve as an informational guide to our membership. …We will continue in the future to disseminate information representing various points of view on the issue of brain stem death in order to assist the members of our organization in the proper guidance of their communities.

    The Paper itself: In early 2006, the leadership of the Rabbinical Council of America commissioned its Vaad Halacha to investigate the issues pertaining to organ transplantation and to provide clarity and direction for its members. It was felt that much confusion existed regarding these issues, with rabbis themselves often not sure where to turn. Additionally, other leading organizations in the Orthodox community had turned to us for guidance.

    The paper seems to have been intended for dissemination outside of the RCA (which I feel was entirely appropriate given the serious topic and the possibility it can affect any of us). And as mentioned above, it was not put in the RCA’s member’s only section.

  12. Rabbi Herring- a serious paper can also be a ‘hatchet job’. I dont think anyone would deny Rabbi Bush the prerogotive to write a paper the way he wants, with the conclusions that he wants. No one who has read the paper can say that it comes with a psak halacha. HOWEVER, the paper only presents evidence that supports one side. The evidence in favor of brain death simply is not there. This is not what an evaluation is. An evaluation presents ALL the pertinent data, has some analysis and comes to a conclusion. As I have demonstrated, there is not a single statement of medical fact supporting brain death that is not immediately knocked down. The halachic opinions supporting brain death are subjected to scathing criticism and those supporting the circulatory definition are accepted at face value(for example,The paper states regarding a supporter of brain death, that: ” Several of the medical assumptions in Rav Eliyahu‘s writings do not seem to fit with commonly accepted knowledge and practice” However, the paper also quotes Rav Wosner, a proponent of cardiac death, and fails to note that he has written “[I]f the heart continues to work without mechanical support for a period of days, there [must] still be a connection preserved between the brain and the heart.” something that has been proven to be totally false, but the paper makes no mention of that). The paper does not reflect any sort of evaluation. It is a position paper. If it was intended for ‘educational purposes’, the only possible result of reading the paper would be to come to the conclusion that brain death advocates have absolutely no support. Furthermore, the reader would have no idea that a real evaluation would have included the missing half of the data. The paper gives no clue that other data exists that supports brain death. An honest label of “everything we can think of to oppose brain death” would have made the situation much more clear. The contents clearly did not fit the label.

    Of course no one reading the paper can say that it is a psak halacha. However, someone reading the paper, depending on its contents and then deciding on a psak to follow would hardly think of ruling in favor of brain death. The paper is totally stacked against brain death. In fact, the opinion has already been brought forth, by the style editor of the paper no less, an RCA employee, that the paper should indeed be used to limit the psak halacha that brain death is halachically acceptable. Rabbi Arie Folger wrote
    “The paper does not claim that major halachic authorities could not rule in favor of brain death; in fact, they could. However, the case for brain death is a difficult one, one that cannot be proven from the sources, and hence requires a decision that can only be rendered by precedent setting jurists, i.e. halachic authorities of the stature of R’ Moshe Feinstein. Until such rulings are forthcoming, the case for relying on brain death has indeed been severely restrained.”

    This was written this past week. Probably the first issue that should be addressed is why Rabbi Folger feels that Rav Gedalia Dov Schwartz, Rav Ovadia Yosef, Rav Amar, and others do not qualify as halachic authorities that can be counted on. In essence Rav Folger is saying that the Av Beit Din of the RCA cannot be used as guidance in psak in this matter.

    Of course Rav Folger stated that this position is his own. However, that does not preclude it from also being the position of Rabbi Bush. Regardless, it is clear that this document can, and already has been used to affect psak halacha. There would be no reason to write this document if it wasn’t going to be used to aid in psak. In fact, it was designed to aid in psak. The only aid it provides, as written, is to oppose brain death. It is not only opposition though. As Rav Folger has written, it is delegitimization. The document, unless opposed could and would be used to state that using brain death was not an acceptable halachic position. It is quite understandable that there would be quite a lot of opposition for all the reason enumerated above.

    As you know and were copied on the emails, I asked Rabbi Bush to either send out all the relevent medical information that I had supplied(and not just the part that supported Rabbi Bush’s views) or to inform the membership who had received the paper that even though my name was listed as a contributor in footnote number 1, I did not agree with the content of the paper. Rabbi Bush refused to do either. If there is no way to reach the audience of the paper through the RCA channels, the only option is via media outside the RCA. I think the only surprise is that someone somewhere made the assumption that people wouldn’t notice that a paper as one sided and mislabelled as this was being circulated, and that those who could identify the problems would stay silent. I think the truth and the whole truth deserves a better presentation that what Rabbi Bush presented. No one denies him the right to his views and to publish what he believes, but it isn’t right to wrap it in an aura of evenhandednes and fairness. This is a serious complex subject, and the RCA members and the people who depend on their rabbonim deserve better.

  13. R’ Gil,
    Did you inform this respected rabbi that this is a “Symposium on the Ethics of Brain Death and Organ Donation” and not a “Symposium on the Ethics of public discussion”?

    The same question goes for the contribution of R. Glatt.

  14. I have not read the entire RCA paper nor am IO qualified to have an opinion on this matter. However, I was horrified by the flippant manner at which R. Bush disregarded the psak of R. Morderchai Eliyahu z”l, R. Avrom Shapira z”l and R. Shaul Yisraeli as if these eminent poskim were a bunch of local yokel pulpit rabbis.
    I dont expect much from R. Herring, but the failure to acknowledge and apologize for the short comings of this paper only serve to undermine the cause of cardiac death in the wider population.
    This is the sort of circle the wagon’s policy the eating away at the RCA and orthodox leadership in general.

  15. You know, there have been a lot of Jewish leaders in our history that commented on how unfit for leadership they were and how unlucky their generation was for being stuck with them.

    To which I respond: at least they had someone actually stepping up to the plate. Something is always better than nothing. We have nothing.

  16. @MDJ wrote: Most of us do not care whether the paper is the “official” RCA position. The problem is that a “resource” for rabbis provided by an official RCA arm was so skewed and incomplete.

    Me: Did you also complain thus when some understood the RCA as being in favor of relying on BD? The VH paper can be seen as pulling the RCA back to a neutral position by being a counterweight against the push from the opposing view.

    @Dr. Stadlan quoted my interpretation of the paper, namely that while it is not a formal psak, it does show that there is a lot less support for the pro BD position. Well, as you correctly cite, I am representing only my own private view, and have in fact neither been authorized by the VH or the RCA nor have I asked to represent them in this matter; I just want people to read the paper with an open mind and see its serious implication (and then, they are still free to do as they feel convinced to).

    Regarding your question/accusation, no, I do not claim that the major figures you mention are not world class poskim. I have the greatest regard for our Av Beis Din, as well as the other gedolim you mention. However, as the paper shows, there is a documented chain of dependence on previous piskei din, and it has been demonstrated that many who permitted BD did so because they believed RMF ruled in favor. As the VH paper shows, there are serious reasons to doubt RMF related to BD proper.

    I also think your arguments would be taken a lot more seriously if you would sop imputing dishonesty or disrespect to the VH (and to me).

    As the VH paper has already generate much vigorous discussion (some much too vigorous, as R’ Herring documents), the possibility exists that we will soon see a flurry of literary activity from the poskim you mentioned, as well as many others, who, if they allow BD, will not base themselves on a rare case where the brain has become liquefied, nor be talking about unlikely cases where the heart stopped beating before the onset of BD, but about garden variety cases we constantly face. Likewise, those who accept the physiological decapitation should tell us that they do so regardless of the existence of residual blood flow and continued functioning of the hypothalamus, rather than addressing cases where neither are present. For additional issues that need addressing, please see the VH paper.

    I do not think we can deny that the VH paper raises very serious questions and shows that relying on BD is surely not a slam dunk. But the paper forces no one to accept its view, there is no organization that is bound to follow it by authority, and Dr. Stadlan is free to continue advocating relying on BD. As a matter of honesty, however, he should preferably hesitate when quoting those poskim whose support of BD has been seriously put into question by the VH. (I wrote “hesitate,” not “abstain,” as he is free to argue against the VH).

  17. Rabbi Folger. lets face the facts. You wrote: ” hence requires a decision that can only be rendered by precedent setting jurists, i.e. halachic authorities of the stature of R’ Moshe Feinstein. Until such rulings are forthcoming, the case for relying on brain death has indeed been severely restrained.” You know that Rav Schwartz came out publicly, AFTER the va’ad paper, in favor of brain death. Yet, you wrote the word “until”, which implies the event you reference hasn’t happened. The only conclusion possible is that you feel that Rav Schwartz is not a ‘precedent setting jurist’. So, to make it simple, just answer the question: Is Rav Schwartz, a precedent setting jurist or not? Is Rav Ovadia Yosef a precedent setting jurist? Please dont hide behind wording. If you are going to post a position, either defend it or retract it. And please dont argue that you are waiting for a statement AFTER the va’ad Halacha paper came out. Rav Schwartz clearly came out after the paper came out, and I think it would show some hubris on your part that a posek would feel obligated to respond to the va’ad Halacha paper, flawed as it is.

    And by the way, you dont write that people can feel free to do what they do, you wrote, that the position is “severely restricted.”

  18. By the way, I have pointed out a myriad of problems with the circulation definition(which you were unable to address). I have not had the temerity to state that one cannot rely on those poskim who support circulation until they address the issues I have raised.

  19. Likewise, those who accept the physiological decapitation should tell us that they do so regardless of the existence of residual blood flow and continued functioning of the hypothalamus, rather than addressing cases where neither are present.

    But, as I presume you know, R. MDT does address this very explicitly:

    But to find that I had to go to the extensive efforts of googling ‘tendler hypothalamus’. Perhaps if the authors of this paper had googled ‘Ovadia Yosef Mavet Mochi’ (in hebrew) they would have come across a view of a very major posek who holds of brain death that they, conveniently, forgot to mention.

  20. Helicoptering up, it seems to me that we have 3 major discussions that are overlapping and weaving among all the multiple Hirurim blog threads:

    1. The long-standing halachic debate itself (i.e. is Brain-Stem Death = Halachic Death?)
    2. Halacha vs. Morality (e.g.
    3. The integrity of the Va’ad Halacha’s paper to its stated objective of “an unfettered search for the truth”

    On his blog today, RNS also has a helpful summary of a major subtopic of (1): but, it seems to me, that is not what the passion/heat in these discussions is about – although it is essential to the larger issue.

    It seems to me that the passion in this debate raises a sociological question about the future of American Orthodoxy. To those of us who are attuned to power politics, a reading of this debate is that the right-wing of the RCA attempted to shift the momentum in a long-standing debate and it has backfired spectacularly. Once this became clear, the broader RCA governance decided not to risk hastening the bifurcation of the American Modern Orthodoxy as institutionalized in the RCA through its January 7th Statement. But this has not proven sufficient.

    The ball is squarely in the Va’ad Halacha’s hands to find a graceful resolution.

  21. lawrence kaplan

    It would be really nice if someone– anyone–would speak for the Vaad Halakhah.

    Am I wrong, or is it correct that no one has responded to the questions Dr. Stadlan raised regarding circulatory definition of death?

  22. lawrence kaplan

    IH: “The right wing of the RCA” More specifically, the students of RHS.

  23. Where is Rabbi Bush a musmach from?
    Whom does he consider his Rebbi?

  24. Daat y,
    From his Shul’s Website:
    “His own philosophy was influenced greatly by the principles championed by R. Samson Raphael Hirsch, HaRav Avraham Y. Kook, and Rav Josef B. Soloveitchik — the latter of whom was his rebbe.”

  25. I second Prof. Kaplan’s question – and add the following: it appears to me that only those in favor of BSD address both the halakhic AND scientific/medical issues. The opposition to BSD uses Mesora of psak, without fully explicating their position with respect to the medical realities, except to point to their own doubts about the scientific basis for BSD. They also appear to ignore the relationship, interpretive or otherwise, between the science of BSD and the Talmudic support cited by R’ Tendler and others.
    It surprises me that our jurists, our poskim, would miss these points. My suspicion is that they do not. I personally sat in a shiur of one of the RCA’s top poskim/dayanim, where he acknowledged the views of both R’ Moshe (and he seemed to agree with R’ Tendler’s representation of R’ Moshe’s psak) and RSZA. He personally sided with RSZA, mainly because he felt “unsure,” and that he did not feel that his shoulders were broad enough to accept BSD as halakhic death.
    I wonder if it is this fear that drives the anti-BSD camp – if so, that would make a lot of sense. I just wish they would say so.

  26. I wonder if it is this fear
    which fear?

  27. Lots of valid points in Rabbi Herring’s article. As the RCA exec vp, it is his role to say these kinds of things ala the President’s call for civility, and yes, I am being serious.

    My take on Dr. (Rabbi) Glatt’s similarly toned article was different, because as a public voice on medical ethics, and as an acutal medical practitioner, we all kinda expected more meat and potatoes, as I first put it. But his points were valid too.

  28. MDJ-Thanks.

  29. lawrence kaplan

    MDJ: I note– also from the shul website — that Rabbi Bush’s sefer received haskamot from RHS and RMW. Not that there’s anything wrong with that. (So much for those who think I know absolutely nothing about popular culture!)

  30. lawrence kaplan

    Not so bad. Less than 20 years behind the times!

Leave a Reply

Subscribe to our Weekly Newsletter

The latest weekly digest is also available by clicking here.

Subscribe to our Daily Newsletter