Rabbi Michael Broyde / Before beginning any discussion on this topic, it is worth noting the obvious: Jewish law is made up of timeless principles and timely applications of these principles. Discussions of the interaction between timeless principles and timely applications frequently are disconcerting to Orthodox Jews because they wish for halacha to generate answers that are always timeless. In areas where the scientific and medical data is still evolving, this is virtually impossible. Hence, the word “tentative” is in the title. New data will certainly generate different answers. “Brain death” is a misnomer. Nearly everyone agrees that as a matter of Jewish law (as well as common sense), were full cellular death to take place in the brain, such a person would be dead.[1] Indeed, the common functions associated with human existence would cease after this event – which we can refer to as “physiological decapitation” – and human life would then cease.

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

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Time of Death and Jewish Law: Some Tentative Thoughts

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

Rabbi Michael J. Broyde

Rabbi Michael J. Broyde is a law professor at Emory University, a member of the Beth Din of America, and chairs the medical ethics committee of the Weinstein Hospice, the only Jewish hospice in Atlanta.

Rabbi Student asked for short postings on this topic, and as with all postings of less than 1,000 words on a complex topic, nuance is sacrificed for the sake of brevity.

Before beginning any discussion on this topic, it is worth noting the obvious: Jewish law is made up of timeless principles and timely applications of these principles. Discussions of the interaction between timeless principles and timely applications frequently are disconcerting to Orthodox Jews because they wish for halacha to generate answers that are always timeless. In areas where the scientific and medical data is still evolving, this is virtually impossible. Hence, the word “tentative” is in the title. New data will certainly generate different answers.

“Brain death” is a misnomer. Nearly everyone agrees that as a matter of Jewish law (as well as common sense), were full cellular death to take place in the brain, such a person would be dead.[1] Indeed, the common functions associated with human existence would cease after this event – which we can refer to as “physiological decapitation” – and human life would then cease.

But this type of complete brain death – what ought to happen after total cessation of any blood flow to the brain, or what happens after actual decapitation – is either very rare or non-existent. Study after study confirms that patients are declared brain dead under criteria far short of total and complete cessation of all blood flow to the brain, and microscopic examination of brain cells post mortem clearly shows that cellular life continues in the brain. This is why the President’s Council on Bioethics in its important January 2009 report sought to introduce a change in terminology from “brain death” to “total brain failure” without the word “death” or the even better classification of “irreversible apneic coma.”[2] The current state of medical literature makes it clear that “brain death” is now being used to describe a state in which the brain fails to provide direction and instruction to (among others things) the lungs to function, and thus natural respiration ceases. However, this diagnosis is not useful in cases such as hypothermia, drug intoxication or a stroke where equivalent symptoms exist due to these reversible conditions. Even when these criteria are met, the President’s Commission insists that the patient must additionally be in a “completely unresponsive coma,” demonstrate no “brainstem reflexes” and not have a “drive to breathe” during the apnea test.

What we commonly call “brain death” is now generally defended in medical, scientific and Jewish literature as a form of “respiratory death” in contrast to “cardiac death,” which is when the heart stops beating.

Whether this definition of death – the combination of permanent brain stem dysfunction and respiratory death (even when a ventilator is used), but not full brain death nor cardiac death – is sufficient as a matter of law, ethics and philosophy remains hotly disputed, both within and outside the Jewish tradition.

Indeed, the President’s Council on Bioethics clearly states:

In this chapter, we set forth and explore two positions on this philosophical question. One position rejects the widely accepted consensus that the current neurological standard is an ethically valid one for determining death. The other position defends the consensus, taking the challenges posed in recent years as opportunities to strengthen the philosophical rationale for the neurological standard.[3]

This debate exists in the Jewish tradition as well, focusing both on the technical Talmudic and post-Talmudic sources, as well as the larger set of issues. Like the medical and scientific literature, it is detailed and complex.[4] Indeed, a firm resolution of this matter with concrete Talmudic or logical proofs is difficult.

Given that reality of uncertainty, what is one supposed to do as a matter of normative practice?

Three options strike me as possible as a matter of halacha. The first, attributed to the contemporary sage Rabbi Aharon Lichtenstein, is to tell people that one is uncertain but to validate as reasonable other views alternatives, thus effectively permitting people who want to donate organs to rely on those authorities who permit such activity.[5]

A second approach is the one adopted by Rabbi Hershel Schachter, who also considers the matter to be uncertain as a matter of halacha. He rules that since the matter touches on the prohibition of murder, one must be strict for all views here and prohibit as a matter of functional Jewish law anything that causes death.[6]

My own intuition is unlike both of these great rabbis – poskim far more learned than myself. I’m more inclined to the view of the late Rabbi Shlomo Zalman Auerbach, which is that a person who is brain stem dead and on a ventilator must be considered as if he is alive as a matter of Jewish law, but, as a matter of end-of-life care:

…if a patient is diagnosed as brain dead by routine criteria, it is permissible to disconnect the respirator even though the patient has not been absolutely proven to be brain dead as required by halacha. If the heart stops for thirty seconds in a clinically diagnosed brain dead patient, the patient is dead according to halacha.[7]

As Rabbi Yitzchak Breitowitz notes:

R. Shlomo Zalman [Auerbach] does permit under these circumstances (a definitive diagnosis of brain stem death) shutting off the respirator. If no respiration or heartbeat is detected for a period of thirty seconds, the patient may then be halachically declared dead and his organs harvested…. In essence, R. Auerbach’s psak paves the way for the legitimization of heart and liver transplants even according to those views that do not accept brain stem death as definitive halachic death.[8]

Even this might not be entirely correct, as the presence of some hypothalamus function seems to have caused Rabbi Auerbach to step back from this ruling as a matter of medical fact.[9] But the basic insight central to his approach works in fact as a matter of halacha. This attempt to bridge the gap as a matter of halacha and medical science seems to me to be the best approach to this area.

What this means practically is that brain dead patients may be harvested for organs but not according to the standard protocol generally in place. The patient’s family, obviously emotional and distressed, must involve their rabbi who will advise doctors on the protocol appropriate for their faith, so that this urgent mitzvah can be performed in a religiously sensitive manner.

As with all matters of halacha and medicine, as the facts change, the reality needs to be reexamined.

(Next: Rabbi Avi Shafran)

Footnotes:
[1] Even Rabbi Bleich – a fierce opponent of brain death – notes that this view has “a measure of cogency.” See his Time of Death and Jewish Law at page 131 (but see his note 4).
[2] See http://bioethics.georgetown.edu/pcbe/reports/death/chapter3.html
[3] http://bioethics.georgetown.edu/pcbe/reports/death/chapter4.html. . Let me add a fact that weighs on my calculus in this area and adds to my personal uncertainty. Nearly every person I respect as a Torah scholar of substance who is also well trained in the sciences supports the view that Jewish law ought to accept brain stem death when combined with respiratory failure, notwithstanding the opposition to this view by many eminent poskim. This compounds my uncertainty as to what the halacha really is.
[4] For an excellent review of the literature, see the fine review article by Rabbi Irving Breitowitz, with a short reply by Rabbi Moshe Tendler, and a further reply by Rabbi Breitowitz, initially published in the Orthodox Union’s magazine, Jewish Action. This can be found at: http://www.hods.org/pdf/Breitowitz%20Brain%20Death%20Controversy.pdf
[5] Listen to the nuance presented in the name of Rav Aharon:

Rav Lichtenstein recognizes, as does the RCA, that this is a complex issue in which there are differing views. His personal opinion is that he remains in doubt concerning the matter, and he does not rule that brain stem death is halachically death. However, when confronted with a situation of a family in great distress who were disposed to authorize the donation of the organs of their loved one — and who were relying on the position of an eminent authority such as Rav Shapira, who accepted the validity of brain stem death — Rav Lichtenstein affirmed their right to rely on this opinion. Further, he stated that if one accepts the opinion of Rav Shapira it is in fact a great mitzvah to donate organs.

http://www.thejewishweek.com/editorial_opinion/letters/inaccurate_report
[6] BeIkvei HaTzon, chapters 36 and 37.
[7] Dr. Avraham Steinberg, http://www.thefoundationstone.org/en/beitmidrash/general/3025-medical-halachic-decisions-of-rabbi-shlomo-zalman-auerbach.html
[8] See http://www.hods.org/pdf/Breitowitz%20Brain%20Death%20Controversy.pdf on the last page (pages are not numbered in sequence)
[9] See Nishmat Avraham (Hebrew) Volume 5 page 99 where a letter from Rabbi Auerbach is printed to that effect.

About Michael Broyde

48 comments

  1. “President’s Commission insists that the patient must additionally must in a “completely unresponsive coma,” demonstrate no “brainstem reflexes” and not have a “drive to breathe” during the apnea test”

    This is not the president’s commission, this is part of the standard protocol for declaring brain death.

    And can someone explain to me why this President’s commission paper keeps getting cited as if it is important and relevant to bioethicists? It is not. It was a document produced by a group of conservative bioethicists convened by President Bush and does not, in and of itself, represent any sort of consensus. This is not to say that everything cited in its name is tendentious, just that it should not be cited as some sort of authoritative document.

  2. But the basic insight central to his approach works in fact as a matter of halacha.

    This sentence is incomprehensible to me. I have a hard time understanding that paragraph at all.

  3. “Nearly everyone agrees that as a matter of Jewish law (as well as common sense), were full cellular death to take place in the brain, such a person would be dead.[1] ”

    R. Weiner wouldn’t necessarily agree.

  4. Translation (to me) – we don’t/can’t know what chazal would say about the “new” issues/facts. Each poseik uses his daat torah/halachic heart to figure out a paradigm which yields what hkb”h wants the halacha to be (based on meta issues such as doubt, how direct a source do you need….). As new facts come clear, these will be reassesed.

    and klal yisrael will vote with its feet(or hkb”h will paskin through history)
    KT

  5. I’d like to thank R’ Gil for this wonderful symposium. As in blogotime articles written yesterday are old, I’d like to apologize for the otherwise rude gesture of responding here to a comment made in another thread, actually, made on symposium contribution III.

    @just a yid wrote there:

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

    To tell you the truth, I have a life, too. After the arguments became circular, I turned my comments into a more comprehensive piece on my own blog, here and here.

    I should also again stretch that I was not the author of the VH paper, just the editor, and that I only represent my own views. I am also unable to respond to certain queries not because there is no good answer, but because it depends on still confidential information I am in no position to divulge. The VH will surely respond in due time.

    Regarding my own position, I wish to also stress that I do not claim that BD is invalid halakhicly, just that no sufficient proof can be brought from the sources, as there are no unambigious, undisputed sources in this matter. Hence, the halakhic acceptability of BD can only rest on the strongly opinion of the most major poskim, who can issue precedent setting rulings that will be widely accepted (a bit circular, but we do not have any formal poskim hierarchy). This does allow the matter to evolve in the future.

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

    The RCA’s statement came to clarify what had always been the case. The VH never wanted to issue the paper as a psak, and the RCA did not want to take a position. There are a number of obvious reasons for this. So the RCA took the pains to underline what the paper was about. Nothing new here.

  6. In fact, I should also point out, as you will find in many other comments I left in the blogosphere, that I wasn’t even the only editor of the paper. I just contributed (many hours), and neither had nor sought final editorial authority. I also tried very hard to only discuss information that is obviously out there, so as not to impute any views to either the VH or the RCA, and when I added “nofach misheli,” I took pains to repeatedly state so. My hope is that people take the paper seriously (even when they disagree) and understand the implications of whatever new insights or more thorough presentation the paper brings, regarding the key sources that were discussed.

  7. if i understand Rabbi Broyde’s approach, (based on RSZA ztl, possibly retracted partially) in a case of a brain stem dead patient, determined by accepted protocol (as say descibed by RMDT), correctly aministered, etc. we are permitted to disconnect the respirator, and then see if the patient ceases to breathe on his own and has no heartbeat for 30 seconds. then we can then treat him as halakhically dead. assumedly, we reconnect the respirator and organs can then be harvested.

    in a certain sense, we are trusting the science by only waiting 30 seconds, but not as fully as others who would not require this step / confirmation. I wonder if we implemented this procedure and after 100, 1000, 10000, etc. occurences no patient ever survived, might `we then reach a different halakhic conclusion?

  8. Glatt some questions

    Before beginning any discussion on this topic, it is worth noting the obvious: Jewish law is made up of timeless principles and timely applications of these principles. Discussions of the interaction between timeless principles and timely applications frequently are disconcerting to Orthodox Jews because they wish for halacha to generate answers that are always timeless. In areas where the scientific and medical data is still evolving, this is virtually impossible. Hence, the word “tentative” is in the title. New data will certainly generate different answers.

    ———————————

    In many ways, Rabbi Broyde’s first paragraph is more important than anything else he wrote (or what everyone else has written on the subject). It reinforces the fact that in a dynamic and changing scientific world, where new evidence is discovered, we cannot simply apply what past poskim have ruled, because we don’t know what they might have ruled had they had the latest scientific findings.

    It’s a critical factor, especially when people are quoting what RSZA, RYBS, RMF, and RAS have ruled on the subject. We certainly can learn from what they have stated…and try to apply their findings to the metzius of today as best as we can. But it is never an apples-to-apples application (I like that alliteration!), especially for a subject such as brain stem death and organ transplantation, where so much of the science and the techniques have changed.

  9. dr. bill: in a certain sense, we are trusting the science by only waiting 30 seconds, but not as fully as others who would not require this step / confirmation.

    I’m not sure what you mean, but I believe R. Broyde and RSZA mean that we consider cardiac death to be determinative (out of chumra) but we allow the person to die by removing the respirator and waiting. This is different from those who fully accept BSD and therefore do not wait for the heart to stop beating.

  10. Doron Beckerman

    It is also important to underscore, as Rabbi Broyde notes, that the 30 second timeframe was prior to RSZA being apprised regarding potential hypothalamus function beyond that timeframe.

  11. Surely it is also required in serious discussion that any dependency on scientific and technologic knowledge by RSZA, in the early 1990s, is calibrated to the present time.

  12. Why must we try to accommodate both sides due to uncertainty?

    Why not just pasken one way or the other based on the best available evidence?

  13. “I maintain that it could lead to the end of the Torah, God forbid, if we only decide issues that are written in the books. If new questions arise that are not in the books and we do not decide them – even if we have the ability to do so – in my opinion, this is forbidden because the Torah should also grow in our time. And someone who is able to decide questions that come before him after exploring and analyzing the Talmud and previous decisors with logic and vision, even if the issues are related to a new matter that the books did not address, is obligated to do so.” (Rav Moshe Feinstein, Iggros Moshe, Yoreh Deah 1:101)

  14. To our Rosh Yeshiva, R. Student,

    What RSZA means is that he interprets Chatam Sofer to rule that a brain dead patient who cannot breathe but whose circulation continues is legally considered to be lingering (out of doubt) on his last breath taken (even if that breath was taken many days ago), and is therefore *most probably* dead but still doubtfully alive. At the same time – based on Eli Hakohen – RSZA also believes that if a person’s entire brain (including all cells of the brain, including the hypothalamus) has died, then the person is physiologically “decapitated” and is definitely dead beyond doubt, even though circulation continues.

    As I pointed out in my comment on Jan. 25 at 10:13 p.m. at https://www.torahmusings.com/2011/01/brain-stem-death-sources-comments-questions/comment-page-2/#comments , it is possible to cogently argue on RSZA in two opposite directions. One could argue on RSZA – to the side of leniency (as RMDT and R. Broyde do) – that it should not be necessary for the hypothalamus to die, since secretion of a hormone into the bloodstream is not a form of motion. Only the brain cells that control corporeal motion need to die in order for a person to be physiologically decapitated as in the story of Eli Hakohen. One could also argue – to the side of stringency (as RHS and RJDB do) – that even death of every single brain cell will not suffice, because the Netziv and others have a different interpretation than RSZA of what happenned to Eli Hakohen. [I.e. according to the She’iltot DiRav Achai Ga’on as intepreted by Netziv and others, Eli Hakohen suffered cardiopulmonary arrest, and not mere physiological decapitation. According to this view, there is no such concept as physiological decapitation, and even death of all brain cells will not constitute death.] It seems to me we are left with a safek, and I do not see R. Broyde providing us with evidence how to adjudicate the safek. [All the same, I commend R. Broyde on a beautiful article that illuminates the matter. It could also be that, due to space limitations, R. Broyde was unable to present his evidence of how he adjudicates the safek, but that on a future occasion he will be able to do so.] In the absence of evidence how to adjudicate the safek, I am seemingly forced to conclude that the status of the brain dead patient remains a matter a safek piku’ach nefesh, even if every brain cell has died.

  15. R’ Skeptic,
    You correctly ask why we must try to accommodate both sides due to uncertainty. The answer emerges from the gemara in Shabbat 129a – when there is a dispute regarding piku’ach nefesh overriding Shabbat, and both sides are legitimates, we are obligated to follow the opinion that says to desecrate Shabbat. Thus, unless we can present evidence to refute and delegitimize the opinion of RJDB, we would have to desecrate Shabbat to maintain the brain dead patient, even if every brain cell has died. [I am not mentioning RHS alongside RJDB here, because even though RHS holds that the brain dead patient may be alive even if every cell has died, RHS also holds (based on his overarching approach on how to medically treat a gossess) that it is forbidden to desecrate Shabbat to care for a brain dead patient, as explained in my comment on RMDT’s article at 10:04 p.m. last night.]

  16. R. Spira,

    I think you missed my point. You are just quoting the idea that safek pikuach nefesh l’hakeil. But that is not what is happening here. We are not going strictly l’hakeil. Rather, the proposal is that we should accommodate both positions partially. But my question is why does R. Broyde feel the need to find an approach that maximally accommodates both sides, as opposed to just paskening one way or the other (like poskim used to do, even in similarly contentious issues)?

  17. R’ Skeptic,
    It’s an especially interesting part of the halachic process. IIUC everyone would agree if a poseik “learns a sugya up”(whatever that means :-)) and is 100% convinced of his result, he must paskin that way. (I’ve heard this from R’HS many times) If not we get into a 2 part question – part 1- how certain does he have to be (and is this a function of personality or fact)and how much weight to give to the Brisker/mishna brurah approach of being choshesh for all the shitot. This may be weighted by the stakes involved which could include the nature of the issue itself(e.g. life or death) and the meta issue of the ancillary impact(e.g. respect for the halachic system)
    KT

  18. On the other hand, all of these ‘compromise’ positions seem like they essentially concede brain death as death.

    Whether it is R. Lichtenstein’s view (where he cannot possibly believe the person is, in any way, alive and then allow someone to follow a view that he is dead), or R. Schachter’s (where, according to Gil, he allows one to accept organs and thus, again, appears to concede that the person was dead – barring some forthcoming explanation of how else this could be allowed) or the current view (where R. Broyde allows disconnecting someone with the expectation that it will cause the heart to stop). It’s hard not to think that everyone really concedes in brain death, but for a variety of social/political extra-halachic reasons (including the public’s respect for the halachic system, as Joel mentioned) very few poskim are willing to say it on record in clear language.

  19. Skeptic: I think you are totally misunderstanding these views. Rav Lichtenstein simply refuses to rule on the subject. Rav Schachter allows receiving organs for *other* considerations. And Rav Broyde / R. Shlomo Zalman Auerbach allows disconnecting someone as a matter of end-of-life treatment, i.e. allowing the person to die.

  20. Skeptic: Why must we try to accommodate both sides due to uncertainty?

    Why not just pasken one way or the other based on the best available evidence?

    Your second question answers your first. Because these poskim are not sufficiently certain to pasken one way or the other, they must accommodate both sides. Other poskim feel certain enough to pasken — some to one side and some to the other.

  21. Just a he’arah:
    “R. Shlomo Zalman Auerbach allows disconnecting someone” – this was a thought that he later retracted.

    Practically and ultimately, he DID NOT allow for disconnecting the ventilator.

  22. John Doe: Yes, he did retract it, as R. Broyde notes in this essay.

  23. lawrence kaplan

    FWIW, Rabbi Broyde’s proposal makes snse to me.

    Rabbi Spira, for all his impressive learning, is once again adopting an overly mechanistic view of pesak.

  24. I thank Mori ViRebbi R. Kaplan for his kind words and important rejoinder. The same way I am cautious not to contradict my Rebbi R. Kaplan, R. Broyde may wish to consider avoiding contradicting the Rebbeim who ordained him Yadin Yadin (RJDB and RMW), unless he can present evidence to do so. Neither RJDB nor RMW permit removing an organ from a brain dead patient, even after 30 seconds of cardiac arrest. Again, I am sympathetic to the fact that R. Broyde was only apportioned 1000 words, and that he will need a more expansive forum to present his case.

  25. lawrence kaplan

    Rabbi Spira: Please feel free to contradict me. On matters of halakhah le-maaseh you know vastly more than I do.

  26. lawrence kaplan

    Re the key issue. It seems to me that though Rabbi Broyde may have received his Yadin Yadin from RJDB and RMW, he is a knowledgeable enough of a posek to differ from them if he thinks his reading of the sources warrants it.

  27. “I think you are totally misunderstanding these views.”

    I wasn’t arguing about the understanding of the view — I was stating the impression that they create. If we wait for the heart to stop as a chumra, then as a matter of din we don’t care whether the heart stops. Otherwise it’s not a chumra. And as for R. Lichtenstein, if he can in good conscience advise people that organ donation from a brain dead patient is desirable, then again as a matter of practice it’s not possible that he would have a doubt that this is not murder (If it was, could we imagine him sanctioning it?) So even if the precise nature of each position is technically not accepting brain death, the impression created is that the poskim (de facto) do accept it.

    This impression is all the stronger because we have yet to hear a precise articulation of how the circulatory-criteria would work in all of the practical cases that Dr. Stadlan and others have raised, nor have we heard a carefully argued ethical case to justify take/not give. If we had those in print, then I could banish my sneaking suspicion that everyone really accepts brain death or relies on the fact that others due in full knowledge that there is no other practical definition to use, but say otherwise in order to preserve the halachic process and not to appear like they bowed to public pressure.

  28. http://www.yutorah.org/lectures/lecture.cfm/716089/Rabbi_Hershel_Schachter/Time_of_Death:_Cardiac_Death_in_Jewish_Law

    Based on what RHS comments here–I don’t know that he would say he agrees with the point leading up to footnote one.

  29. In the YU lecture by Rav Shachter above I found his analysis of the Rabanut Roshit decision of enabling heart transplants difficult to understand.Instead of discussing their many published articles(See Assia Sefer 7) explaining their halachic decision he quotes oral comments of a relative of the then Chief Rabbi Shapira ,who he disagreed with that relatives comments.

  30. I thank Mori ViRebbi R. Kaplan for his kind words (-and for giving me far more generous a compliment than I deserve, in the same way Mosheh Rabbeinu gave Yehoshu’a more honour than Yehoshu’a actually deserved, as per the Mekhilta to Exodus 17:9). Vihamevarekh yitbarekh.

    Also, my apologies for not addressing R. Broyde with sufficient reverence. Although I am a devotee of RJDB (and – until further evidence from R. Broyde will be presented – I am unable to accept R. Broyde’s prescription to remove organs after a 30 second cardiac arrest in brain dead patients), I do acknowledge that R. Broyde is a Gavra Rabbah.

    R’ Skeptic and R’ John Doe,
    Thank you and yi’yasher kochakhem for requesting an elaboration on RSZA’s approach to deactivating a lifesupport machine. Essentially, this issue is another outstanding dispute between RMF and RSZA (-in addition to the two RMF vs. RSZA disputes that have already been well documented in the pages of this website: viz., how to interpret the Chatam Sofer’s reference to circulatory arrest, and how to interpret the Noahide Code prohibition against homicide), as follows.

    RMF believes (IM YD 3:132, CM 2:73, and oral ruling as reported in R. Mordechai Tendler’s interview on HODS website) that to remove a patient from a ventilator is a potential act of homicide, which is always forbidden (-obviously unless the patient is either completely weaned from the ventilator or completely dead, in either of which cases it is entirely innocuous to remove the patient from the ventilator). RMF envisages the machine as an extension of the patient himself.

    By contradistinction, RSZA reasons that these machines – which did not exist in the time of Chazal – are not an intrinsic part of the patient who is attached to them. Therefore, stopping the machine is like stopping the banging of a woodchopper described by the Rema in Shulchan Arukh YD 339:1. It is not an act of homicide. Of course, in normal patients, even RSZA agrees that one may not deactivate the lifesupport machine, since that would be a violation of “lo ta’amod al dam re’akha” (in allowing the patient to die). But since, in RSZA’s view, a brain dead patient is most probably dead and only doubtfully alive, and moreover the brain dead patient faces an unimpressive quality of whatever “safek gossess life” he possesses, RSZA permits deactivating the ventilator of a brain dead patient. [RSZA vociferously refuses to allow removing organs, because that would be doubtful murder. But there is nothing wrong, in RSZA’s opinion, with deactivating a machine that Chazal didn’t use to treat gossessim in their days. This stands in sharp contrast to the position of RJDB, who requires heroically prolonging the lives of all gossessim, including brain dead patient, with the latest technology available. (Actually, brain dead patients aren’t even gossessim according to RJDB, which merely reinforces RJDB’s stringent approach). Somewhere in the middle is RHS, who forbids deactivating the machine, but does not require maintaining the machine (and indeed forbids desecrating Shabbat to maintain the machine).] The pesak halakhah of RSZA to permit deactivating the ventilator is recorded in Shulchan Shelomoh, Erkei Refu’ah II, pp. 16, 18, 22, 28-31, 42, 48-50.

    In my opinion (S. Spira), a careful reading of all those passages in the Shulchan Shelomoh reveals that RSZA never retracted his permission to deactivate the ventilator. He only retracted permission to remove organs after 30 seconds of asystole, because he discovered that the hypothalamus can survive a 30 second cardiac arrest. But the principle of permission to deactivate the lifesupport machine was always espoused by RSZA. [Needless to say, I personally think it is absolutely forbidden to follow RSZA on this (since there is safek piku’ach nefesh engendered by the opposing opinion of RMF who forbids deactivating the lifesupport machine of any doubtfully living patient). Moreover, following the cue of RJDB, I would desecrate Shabbat to have a brain dead patient heroically maintained on a ventilator, unless evidence can be advanced to soundly refute RJDB. But for the sake of intellectual honesty, I must admit that RSZA disagrees with RMF & RJDB, and to that effect RSZA allows deactivating the ventilator.]

    However, I am now aware of opposition to my reading of RSZA. There are those who claim that RSZA retracted his permission to deactivate the ventilator. See footnote 15 at
    http://www.institutefordayanim.com/DisplayQuestion.asp?ID=208
    [I can’t comment further. I have no inside information.]

    In any event, RSZA’s position regarding lifesupport machines is also evident in another responsum (p. 33 of the same volume of Shulchan Shelomoh) where he addresses the case of a patient who has been placed on a heart-lung machine to undergo open-heart surgery. At the end of the surgery, the physicians realize that the patient will never return to independent heartbeat, and is now completely dependent on the machine for artificial circulation. RSZA rules that the patient is halakhically dead, and it is permissible to deactivate the heart-lung machine, because the machine is extrinsic to the patient.

    Parenthetically, it seems to this me that the conflict between RMF and RSZA perfectly mirrors their celebrated dispute as to whether one may fulfill the mitzvah of megillah reading on Purim by hearing a microphone-amplified reading. RSZA, in his Shu”t Minchat Shelomoh I, no. 9, views the microphone-amplified sound as an artificial voice that is disassociated from the original speaker and is therefore unsuitable for the mitzvah. However, RMF, in his IM OC 2:108 and 4:126, posits that a microphone-generated sound may indeed be considered to be an extension of the original speaker. He argues, based on the physics of acoustics, that the entire phenomenon of sound represents a chain reaction of indirect causation. This is reflected in the finding that sound is perceived an astonishing one million times slower that light. [Speed of light = 3 * 10^8 m/s. Speed of sound at room temperature = 340 m/s.] The delay indicates a process during which air molecules must bump into other air molecules as the sound wave is actually carried to the human ear. Hence, there is nothing “artificial” in adding an extra step to the chain reaction in the form of a microphone. Mutatis mutandis, R. Auerbach regards the lifesupport machine as being artificial and extrinsic to the patient (and hence removable without the charge of homicide) and R. Feinstein regards the lifesupport machine as an extension of the patient (whose removal occasions the charge of homicide).

  31. Point of clarification to my last comment: In my opinion, the same way (apropos the gemara in Shabbat 129a) one should apply RMF’s opposition to RSZA in the case of the ventilator to require (as a matter of safek piku’ach nefesh) maintaining a brain dead patient on the ventilator, one should also apply RMF’s opposition to RSZA to the case of a heart-lung machine or ECMO machine to require (as a matter of safek piku’ach nefesh) maintaining the brain dead patient on the heart-lung machine or ECMO machine.

    Whether RJDB agrees with me regarding the heart-lung machine or ECMO machine is unclear at this moment in time (-though I hope that RJDB will clarify this in the future). Sometimes RJDB implies that only spontaneous heartbeat is a sign of life; other times RJDB implies that even artificial circulation is a sign of life. See my comments on Jan. 18 at 1:32 p.m. and Jan. 20 at 10:00 p.m., online at https://www.torahmusings.com/2011/01/news-links-31/comment-page-2/#comments

  32. Lawrence Kaplan

    Rabbi Spira: Assuming your reading of RSZA is correct, why should we not be allowed to deactivate the ventilator of a BSD person on account of sefek sefeka? Maybe he is dead a la RMF (oontra RSZA,) and even if he is alive he may be detached from the ventilator a la RSZA (contra RMF).

  33. My head is spinning.

    I like to sing, “Oylam ha’bah gitte zach, lernin Torah besser zach.”

    After this brain death, heart deathdebate, now I’m not so sure.

  34. OMG, I just noticed the title of Rabbi Professor Broyde’s article: “Some TENTATIVE Thoughts”. Can you imagine when he gets serious?

  35. Leon Zacharowicz MD

    The representation of Rav SZ Auerbach ztl was his position after he was (mis)informed that the hypothalamus was not a part of the brain itself, and before
    he was informed the hypothalamus was actually an integral part of the brain, as Rabbi Broyde himself
    sensed, and in footnote [9] he correctly cites a letter of Rav SZ Auerbach ztl printed in Nishmat Avraham. One needs to see the latest edition of Nishmat Avraham (Hebrew).

    The letter by RSZA was written in Av
    5753 (Summer 1993) and is printed in vol 2 (to Yoreh Deah chapter
    339) of the latest edition on page 468. RSZA wrote that afterwards he became aware that in the patient we discussed, who has no heartbeat and one then waited 30 seconds, it is still possible that the hypothalamus is still alive. If such a
    patient would then be connected to a respiratory machine, and the
    heart will be pumped, the patient can continue to function for
    several days. Rav Auerbach ztl writes that he is in doubt because it may be that in such a case it is no longer sufficient to wait 30 seconds but rather one must wait sufficient time until the hypothalamus is certainly dead. Therefore one is not allowed to harvest organs after the 30 second wait.

    Rav Auerbach ztl concluded: “therefore I write explicitly that I retract what I wrote previously and it is as if I did not write anything”.

    I am not sure we can extrapolate further without the halachic ruling of a recognized halachic authority, on a matter of such potential magnitude.

    Respectfully,

    Leon Zacharowicz

  36. Someone has brought to my attention that yet again Dr. Leon Zacharowicz is accusing HODS of being dishonest because we listed Rabbi Moshe Sternbuch, an Ultra-Orthodox Charedi Rabbi from the Edah Charedit, as accepting brain-stem death. On this forum, Dr. Zacharowitz wrote to me; “Why do you continue to incorrectly list Rabbi Moshe Sternbuch as a supporter of ‘brain death’?”
    I do so because that is his position. He has stated his position privately to many people, such as to Rabbi Avraham Steinberg and to Rabbi Moshe Peleg, the official Rabbi of Sharei Zedek Hospital. Their testimonies are recorded in the latest edition of ASSIA and can be found – as usual – on the HODS website. http://hods.org/pdf/RavSternbuch%202%20pages%20optimized.pdf
    Moreover, Rabbi Moshe Sternbuch from the Edah Charedit publicly stated that he accepted brain death as halachic death at the Yarchei Kallah program in Jerusalem in the presence of the many attendees, including Rabbi Yaakov Weiner. This really surprises me because Dr. Zacharowicz has often said in this symposium and in other blogs that he is heavily involved with Yarchei Kallah and he has a very close relationship with Rabbi Weiner and they often talk about brain death. Is it possible that Rabbi Weiner would not have shared this earth-shattering news with Dr. Zacharowitcz?
    [For the record, Rabbi Moshe Sternbuch said that he did not trust secular doctors in the diagnosis of brain death and feared they wouldn’t do the proper testing.]

  37. For the record, I’m in favor of organ donation. I have an old Casio I don’t use too much, and some day, I might donate it.

  38. Some of you might be interested in seeing the questions Rabbi Bush posed to the Chief Rabbinate of Israel and its responses to him. You can find them on the HODS website.
    http://hods.org/pdf/Bush%20Questions%20to%20Chief%20Rabbinate%208%20pages%20Optimized.pdf

  39. Doron Beckerman

    Mr. Berman,

    Can you please explain how what you wrote here:

    http://www.jewishideas.org/articles/done-brain-death

    regarding R’ Shlomo Zalman Auerbach’s opinion makes any sense?

    Quote:

    Rabbi Auerbach, after initially rejecting brain-stem death, ultimately accepted it as halakhic death after the famous sheep experiment showed that a decapitated (thus ‘brain-stem dead’) pregnant sheep attached to a ventilator could have its blood pressure and heart beat maintained and fetus kept alive. He did, however, require proof that every cell in the brain was dead.

  40. I thank Mori ViRebbi R. Kaplan for the excellent question regarding a sfek sfeka likula to permit deactivating the so-called “lifesupport” machine (be it a ventilator, heart-lung bypass or ECMO) on which the existence of the brain dead patient is being heroically maintained.

    Actually, to strengthen the question before I answer it, one could cogently posit that – at least when every brain cell (including the hypothalamus) in the brain dead patient has died – there is actually a sfek sfek sfek sfeka likula to permit deactivating the machine, as follows:

    (a) Safek likula #1: Perhaps – as RMDT and the Israeli chief rabbinate argue – the Chatam Sofer was completely mistaken to specify circulatory arrest in his responsum, such that irreversible respiratory arrest and unconsciousness themselves suffice to establish death. [The nature of Chatam Sofer’s mistake would have been to accept Rashi to Yoma 85a (as interpreted by Chakham Zvi), Chiddushei HaRan to Chullin 32b, Rabbeinu Bachya to Deuteronomy 6:6, Rambam in Moreh Nevukim (cited by Chatam Sofer), Ramban to Genesis 45:26, and Shulchan Arukh Orach Chaim 25:5, all of which refer to cardiac activity as a sign of life. Perhaps all those sources should be dismissed, since those authors may have failed to understand the nature cardiac activity. See my comment on Jan. 24 at 7:30 p.m., at https://www.torahmusings.com/2011/01/statement-re-statement-re-brain-death/ , regarding what Galen and others understood vis-a-vis the heart and vis-a-vis circulation.]

    (b) Safek likula #2: Even if the Chatam Sofer was correct to specify circulatory arrest in his responsum [because of the gemara in Niddah 69b that only decomposition is a certain sign of death, and/or because the Rishonim specified in (a) should indeed be taken at their face value], and as per the explanation of R. Shabtai Rappaport that circulation is considered the effect of the last breath taken, so that as long as the circulation continues, the benefits of the last breath taken are still enjoyed by the person, perhaps the circulation that persists for many hours and days/weeks/months after brain death is no longer legally considered to be a manifestation of the last breath taken. [This will depend on the dispute regarding cow lactation on Pesach, as explained in my comments on Dec. 23 at https://www.torahmusings.com/2010/12/death-by-neurological-criteria/ ]

    (c) Safek likula #3, even if the Chatam Sofer was correct to specify circulatory arrest in his reponsum, and even if the Halakhah follows those poskim who will consider the continuing circulation as a manifestation of the last breath taken no matter how much time has elapsed (which is indeed RSZA’s position), perhaps a patient will no living brain cells is “physiologically decapitated”, apropos one side in the longstanding dispute among the Acharonim of how to interpret the story of Eli Hakohen. [See my comments on Dec. 27 at https://www.torahmusings.com/2010/12/death-by-neurological-criteria/ ]

    (d) Safek likula #4, even if the Chatam Sofer was correct to specify circulatory arrest in his reponsum, and even if the Halakhah follows those poskim who will consider the continuing circulation as a manifestation of the last breath taken no matter how much time has elapsed, and even if the Halakhah follows the Netziv et al. that there is no such concept as physiological decapitation, still perhaps the Halakhah also follows RSZA that deactivating a lifesupport machine which did not exist in the time of Chazal is not considered an act of homicide.

    So, with the quadruple safek likula, why should one not actually deactivate the lifesupport machine?

    The answer is that – as per the mishnah in Yoma 83a (and its attendant codification in Shulchan Arukh Yoreh De’ah 329:4) – when it comes to piku’ach nefesh, no matter how many doubts we have to the side of leniency, we are halakhically obligated to champion the possibility (however meager) that the patient may be alive, and we are obligated to attempt to save the patient.

    Complementing this answer is the point that RJDB communicated to me in an e-mail on Sept. 9, 2009, that “mai chazit” prohibits a potential act of homicide, even when there is ostensibly a sfek sfeka likula to permit it.

    And thus, it would seemingly emerge that a brain dead patient is *most probably* dead, and *most most probably* there is no problem in theory with deactivating the machine, but in actual halakhic practice the duty of safek piku’ach nefesh seemingly obligates us to overlook the four sfekot likula and to heroically maintain the BSD patient on the machine, to restart the machine if the machine accidentally fails, to resuscitate the BSD patient if the patient (while on the ventilator) enters circulatory arrest, and to desecrate Shabbat wherever necessary to orchestrate the above interventions. That is, unless halakhic evidence can be presented to transform one of the four safek likula points above into a vadai kula.

  41. Yi’yasher kochkha, Dr. Zacharowicz, for the excellent evidence that you present that RSZA may have retracted his permission to deactivate the ventilator. Although I am unable to confirm or deny this evidence (seeing as it is at variance with the material I have before my eyes in the Shulchan Shelomoh, but also recognizing my limitations as someone who has no absolutely inside information from RSZA’s entourage), I certainly applaud your halakhic argument to maintain the continued existence of the BSD patient, and – in light of my comment above at 5:38 p.m. – it seems to me that you are entirely correct. Namely, seemingly, [whether or not as a matter of historical fact RSZA actually retracted], we in actual practice must maintain the BSD patient on the machine, be it a ventilator, heart-lung bypass or ECMO. [Of course, I’m not too sure about the heart-lung bypass or ECMO, pending further clarification from RJDB of whether artificial circulation is also a sign of life. If artificial circulation is indeed a sign of life, then we have to delay funerals until the body decomposes, as Dr. Stadlan pointed out. But, maybe “ein hakhi nami”, let the law pierce through the mountain.]

    At the same time, for the sake of intellectual honesty, I do have to admit that *most probably* the BSD patient is already dead, as RSZA himself wrote. But such is the nature of the mitzvah of piku’ach nefesh; even when the patient is most probably already dead, we are solemnly commanded by G-d to extend the existence of the patient. One might choose to invoke the parah adumah philosophy of “gezeirah hi Milefanai, vi’ein lekha reshut liharher achareha”. Additionally , one might rationalize the duty by employing the philosophical approach of RJDB in Bioethical Dilemmas I, pp. 113-129.

    Seemingly confirming the above approach is the following responsum by R. Aaron Soloveitchik dated 9 Adar 5756 (Feb. 29, 1996), published by RJDB in Bioethical Dilemmas I, p. 71:

    “It is my unmitigated, convinced opinion that a doctor must do his utmost to treat terminally ill patients. This is true whether doctors believe that the patient can survive for even an extremely brief period of time, or even if they believe that the patient is brain dead. The situation of a goses does not even have to be considered since today very few, if any, patients manifest the symptoms of a goses. Even in a case where the patient has been unconscious for a year or more, pulling the plug constitutes an act of homicide. Anyone who commits such a crime violates the Biblical prohibition of lo tirzah.”

    [S. Spira’s observation: In my opinion, HaRav HaGa’on R. Aaron Soloveitchik’s last sentence is too strong, at least when applied to the BSD patient. After all, there is a sfek sfek sfek sfeka likula to theoretically justify terminating the lifesupport of the brain dead patient, as described in my comment above at 5:38 p.m. How, then, can we accuse someone who deactivated the machine of violating “lo tirzah”? However, in actual practice (for the reason explained at the end of that same comment of mine at 5:38 p.m.), R. Soloveitchik seems absolutely correct that we must behave *as though* the BSD patient is alive, and *as though* terminating the BSD patient’s lifesupport would be “lo tirzah”. In summation: Seemingly, the BSD patient must be heroically maintained on the machine.]

  42. This debate reminds me of the following story.

    A few meshichistim were arrested for defacing a plaque on 770 Eastern Parkway memorializing Rav Menachem Mendel Schneerson, ztl. They tried to scratch off the ztl. Even though the Rebbe appeared dead, they insisted he was alive.

    A few weeks later, a PETA spy caught on video, at the Rubashkin plant, a slaughtered cow that was still staggering. The Orthodox Union responded that while the cow looked alive, it was really dead.

    The kibbitzers noted: they’re telling us the rabbi looks dead, but is really alive, and the cow looks alive, but is really dead. Maybe Chabad needs a new moshiach, and the OU needs a new mashgiach.

  43. And now to address the discussion between Robert Berman and Dr. Zacharowicz (highlighted by Robert Berman’s comment earlier today at 9:15 a.m.) as to the position of R. Moshe Sternbuch regarding BSD. R. Moshe Sternbuch has written a responsum devoted to the subject of brain death in his recently published Teshuvot Vihanhagot, Chelek Chamishi (which was published 2 years ago in 5769).

    Firstly, I emphasize that both Robert Berman and Dr. Zacharowicz are tzaddikim gemurim. Both of them are accurately highlighting distinct elements of R. Sternbuch’s nuanced responsum on the subject of brain death.

    And now, turning to the responsum itself, on pp. 586-590 of that volume. The first part of the responsum repeats verbatim what R. Sternbuch originally publicized in 5729 (1969/1970). R. Sternbuch also paranthetically adds (now several decades later) that one should consult his 2002 responsum in Teshuvot Vihanhagot IV on the topic of brain death. [It is freely available at
    http://www.hebrewbooks.org/pdfpager.aspx?req=20027&st=&pgnum=295 ]

    The second part of R. Moshe Sternbuch’s 5769 responsum in Chelek Chamishi (beginning on p. 589) addresses the 2008 brain death legislation that was passed by Knesset. I will translate this second portion of the responsum, simply in order to be concise at this particular moment:

    “Behold, recently the government here in the land of Israel legislated a statute that a human is called dead when his brain stem ceases to function, and then one may harvest organs. This is against the opinion of all the Gedolei Haposkim who agreed that since the the heart still functions when it is transplanted, then he [the donor] is considered alive, and he who harvests his organs is killing a soul. And who knows if we sufficiently protested against this legislation? And the truth is that this legislation is inherently mistaken even according to their [i.e. the legislators’] opinion, since even if the brain stem does not function, still a part of the brain called the “hypothalamus” functions, which is a portion of the brain that – thanks to the miracles of HaKadosh Barukh Hu – functions to maintain body temperature, and this is a sign that the body is still alive. And see at length in the book Minchat Shelomoh by the Ga’on R. Shlomo Zalman Auerbach, Vol. 2, ch. 86, who writes that even after the brain and heart cease to function, still it is possible that the hypothalamus lives, and if the patient will be connected to the ventilator, he will be able to continue and function many days. See there. May Hashem have mercy that we have reached this stage that we cannot live in the land, for we are in the hands of the [well-meaning] physicians who determine death even when [the patients] still live for a few more moments, and in any event we require protection so that we can be saved from the physicians’ [mistake].

    “And know you, that one cannot say that even though we have explained at length that that when he is brain dead his [Torah] law is that he is alive, still he is like a treifah. See Rambam Hilkhot Rotze’ah 2:38 and Chazon Ish Yoreh De’ah 5:3. And the opinion of the Me’iri, Sanhedrin 72a, and Minchat Chinukh, no. 296, is that if [enemies] say “give us one of you, and if not we will kill you all”, and among them [the victims] is a treifah, it is permitted to surrender the treifah. And seemingly from their words [i.e. the words of Meiri and Minchat Chinukh] it is likewise permissible to kill a treifah in order to save a healthy patient. And so it should be permitted to harvest his heart [from the BSD patient, who is like a treifah] in order to transplant it in someone to live chayei olam [indefinite life]. However, first of all, some Gedolei Ha’acharonim dispute this. See Noda Bi’yehudah Maharura Tinyana Choshen Mishpat no. 59, who holds as obvious that even though one is not liable to capital punishment for killing a treifah, nevertheless it is forbidden to kill a treifah in order to save a healthy patient. And some Gedolei Ha’acharonim agree with him [the Nodah Bi’yehudah]. Also, since even ancillary prohibitions of bloodshed are yehareg vi’al ya’avor, behold this [act of killing a treifah] is no less than an ancillary prohibition, and so there is no permission to kill him for the sake of saving a life. And see further in our words [in Teshuvot Vihanhagot] Vol. 1, ch. 858, that even if there is no law of yehareg vi’al ya’avor in killing a treifah, nevertheless if he was not forced [by outside human gangsters imposing under force majeure] to kill the treifah, but rather he himself voluntarily healed himself by murdering the treifah, this is forbidden, because the treifah is not obligated to surrender his life in order to save the life of another person. For behold the opinion of the Radbaz is that even in his limbs where there is no piku’ach nefesh, one is not obligated to surrender them in order to save a friend’s life. And some say even one’s money one is not obligated to give [to save another person’s life] except because he [the patient who is saved] will be able to repay afterward. And in any event, it appears that everyone agrees that a treifah is not obligated to surrender his life. And see also there [in Teshuvot Vihanhagot I, no. 858] what I wrote that even those who permit killing the fetus to save the mother even without the reasoning of rodef, still agree that a treifah is superior [than a fetus] because he [the treifah] is called “adam”. And see also the Or Gadol [first chapter] who writes that even according to the Minchat Chinukh it is only permitted [to surrender the treifah to save the others] when the endangered person himself surrenders the treifah to save his own life, but not when an external person like a physician [sacrifices the treifah to save the other person] and so on. And see also in our words [in Teshuvot Vihanhagot] Volume 4, ch. 323m where I wrote that it seems clear that everyone agrees that it is forbidden to kill a treifah in order to save the healthy patient. And the Meiri only permitted surrendering [the treifah to an outside oppressor], but not to actively kill [the treifah] with one’s hands. And see Minchat Shelomoh Vol. 2, ch. 86, of the Ga’on R. Shlomo Zalman Auerbach, who concluded that it is unthinkable that a patient may heal himself by murdering a treifah, and that which the Minchat Chinukh permitted to surrender the treifah, when they [the outside gangsters] say “give us one of you and if not we will kill you all”, and one of them is a treifah, that’s only because in any event the treifah will die [if the oppressors capture the whole group], and see further there what he wrote about this.

    “But still this requires clarification, what will be the law if a person reveals his view explicitly, that if he should chas vichalilah experience brain death, that he announces in advance that he is prepared to give his heart in order to save the life of another patient, since his life [as a brain dead patient] has no more quality, and also his life is only for a small amount of time, therefore he is prepared to surrender his life in order to save someone else who will survive many years. The foundation of the question is whether even though it is forbidden to kill a treifah in order to save a healthy patient, nevertheless if the treifah himself volunteers to surrender himself to death in order to save another whole life, it is permissible to kill him [the treifah], since rescuing the life of his fellow for chayei olam [indefinite life] is preferable to his life which is only chayei sha’ah [transitory life], it [should be] permissible for him surrender his life in order to rescue his friend, even though he [the treifah] is not obligated to do so, and therefore it is forbidden to save the healthy patient at the expense of the treifah against the wishes of the treifah. But if he [the treifah] volunteers, it [should be] permissible to kill him. For since he [the treifah] is not considered a “nefesh”, even though he is included in the prohibition of murder, still one who kills him is exempt [from capital punishment by Sanhedrin], and there is no theft here of his life or limb, since he [the treifah] wants it, and so the interdiction against killing him in order to save the healthy patient [should be] permitted. And therefore it is permitted for a patient to say to a physician – especially a Noahide physician – “since in any event my life [if I will experience brain death in the future] is so meager in quantity and quality, I surrender my life to so-and-so.” And this matter requires analysis. And see the Minchat Shelomoh there [Vol. 2, ch. 86], that his opinion is that even if the treifah agrees [in advance] to surrender his life in order to save his friend, this is forbidden, since he [the brain dead patient] is not the owner of his own life. And see there further what he [R. Shlomo Zalman Auerbach] wrote as an additional reason to prohibit this.

    “And in particular there is reason to analyze, if the patient wants to surrender his heart to save a talmid chakham, for it appears in Sefer Chassidim (ch. 698) that an enemy who seeks to kill one of two individuals – one of whom is normal and the other of whom is a talmid chakham – it is a mitzvah for the normal person to say [to the terrorists] “kill me instead”, and likewise we find Rabbi Reuven Itztrobili asks that they [the enemy] should kill him and not Rabbi Akiva. And in the Migdal Oz of the Ya’avetz [R. Jacob Emden], he writes based on this Sefer Chassidim, that if one knows clearly that one’s friend is a greater talmid chakham and tzaddik, then he is permitted to surrender himself to be killed in order to save his friend [who is superior in scholarship and righteousness.] And they relate regarding the saintly Belzer Rebbe, zekher tzaddik vikadosh liverakhah, that when the Nazis – may their name be blotted – searched for him, the Gabbai endangered himself and said that he was the Rebbe.

    “However, there is room to distinguish [our case of brain death from what the Sefer Chassidim discusses], because [perhaps] only the person himself is allowed to endanger his own life in order to rescue a talmid chakham, because since here the prohibition is one of suicide, here we can say it is not [halakhically treated as] suicide, but rather an action of sustaining the life of the talmid chakham with his own life. But [in the case of brain death] to endanger the life of one’s friend with his [advance] permission in order to save the life of a talmid chakham, here there is room to say that this is forbidden, since he is not authorized to transgress the interdiction against murder, even with the permission of the homicide victim. And therefore only in this case [of surrendering to an outside oppressor] did the Sefer Chassidim write [that one act leniently], for the case is only from the perspective of the Jew whether he may surrender himself, this the Sefer Chassidim permitted. But here [in the case of brain death], where the question is from the perspective of the physician whether he may take the life of the patient with his permission, this is forbidden. Regarding application to Noahides, see our discussion in Teshuvot Vihanhagot Vol. 3, no. 362.

    “In any event, in our case it appears that we should not permit except with the ruling of the Beth Din that needs to adjudicate on an ad hoc basis (“kihora’at sha’ah”) the Halakhah, since this may come to excesses, and there is no room here to elaborate further.”

    [End of quotation from second portion of R. Moshe Sternbuch’s responsum]

    In summation, we see that R. Moshe Sternbuch:

    (a) Agrees with RSZA’s interpretation of the Chatam Sofer, that continued circulation in a BSD patient is potentially a sign of life.
    (b) Emphasizes that if the hypothalamus is alive, the patient is potentially alive, as RSZA declared. It is not clear, though, what R. Moshe Sternbuch would say if all brain cells (including the hypothalamus) would die. Does he agree with RSZA that the patient is certainly dead, or will he follow RHS and RJDB that the patient is still potentially alive? [In other words, how does R. Moshe Sternbuch interpret the story of Eli Hakohen?]
    (c) Raises the possibility that perhaps, when the individual announces in advance that if he should experience brain death in the future, he is willing to be killed in order to save someone else’s life indefinitely. R. Moshe Sternbuch notes that RSZA certainly forbade this arrangement, but he himself (R. Moshe Sternbuch) is uncertain.

  44. Today is Valentine’s Day. Should we avoid discussing cardiac death because of chukas goyim?

  45. Shachar Ha'amim

    I don’t understand RAL’s point on donors. I can understand the reluctance to accept BSD as a valid criteria regarding acceptance of donated organs, by why is this an issue regarding donating??
    The issue of donating revolves around whether “vechay bahem” is a chovah or reshut – i.e. is one allowed to sacrifice one’s life to save the life of another. It is a mchloke rishinim and there are even opinions (such as R’ AY Kook) that are of the view that even according to the Rambam who holds that it is assur to forsake one’s life, one is allowed to sacrifice one’s life to save the life of another (even in peace time). Also there are are grounds to suggest that even if one is forbidden to sacrifice one’s life to save the life of another, one is still allowed to sacrifice one’s life in order to to try and save the lives of many – which would have ramifications for multiple recipients from one donor – or even as a systematic perspective on the whole organ donor system.
    see chapter 7 of this book
    http://www.daat.ac.il/daat/vl/rakmesirut/rakmesirut01.pdf

    So I don’t see the difficulty that RAL has and why Rabbi Broyde states “thus effectively permitting people who want to donate organs to rely on those authorities who permit such activity.” This is not a BSD issue.
    In theory one could discuss organ donor cards even in a scenario where everyone considered BSD not to be halachic death – perhaps only leaving the discussion of a question as to whether or not someone can serve as a shaliach to implement another’s clear wishes and desire to sacrifice his/her own life in order to save the life (or lives) of another?

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