Rabbi Avi Shafran / Internal organs are most successfully transplanted when “harvested” from a ventilated patient, whose blood remains oxygenated and circulating. From the perspective of halacha, or Jewish religious law, that raises a serious question and, in its wake, ethical dilemmas. A diagnosis of “brain death” – when tests indicate that a person has suffered irreversible cessation of all brain function – is considered by contemporary medicine and secular law to be sufficient to constitute death, thereby permitting the removal of organs. In cases involving medical matters, scientific realities play an important role in the deciding of halacha. But Jewish law’s rules, judgments and definitions do not necessarily parallel those either of medical science or society. Machines and observations can measure electrical activity in the brain and “invoked potentials”; but the determination of when a soul has left a body is something less easily calibrated. To an observant Jew, halacha alone serves as the determinant.

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

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Life, Death and Halacha

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

Rabbi Avi Shafran

Rabbi Avi Shafran is Director of Public Affairs of Agudath Israel of America

Internal organs are most successfully transplanted when “harvested” from a ventilated patient, whose blood remains oxygenated and circulating. From the perspective of halacha, or Jewish religious law, that raises a serious question and, in its wake, ethical dilemmas.

A diagnosis of “brain death” – when tests indicate that a person has suffered irreversible cessation of all brain function – is considered by contemporary medicine and secular law to be sufficient to constitute death, thereby permitting the removal of organs.

In cases involving medical matters, scientific realities play an important role in the deciding of halacha. But Jewish law’s rules, judgments and definitions do not necessarily parallel those either of medical science or society. Machines and observations can measure electrical activity in the brain and “invoked potentials”; but the determination of when a soul has left a body is something less easily calibrated. To an observant Jew, halacha alone serves as the determinant.

While there are halachic decisors who maintain that lack of brain-stem function renders a patient dead, in the judgment of a majority of major decisors, “brain-dead” human beings whose hearts are still beating must be maintained on life-support. Renowned decisors who clearly forbade removing organs from brain dead patients include Rabbi Shlomo Zalman Auerbach, Rabbi Eliezer Waldenberg, Rabbi Aharon Soloveichik (who reported that his brother, Rabbi Yosef Dov Soloveichik, held the same position), zacher tzaddikim liv’racha. Contemporary poskim Rabbi Yosef Sholom Elyahiv, Rabbi Shmuel Wozner, and Rabbi Moshe Sternbuch, shlit”a, concur as well; as do Rabbi J. David Bleich and Rabbi Mordechai Willig, shlit”a.

While saving another’s life is a most weighty imperative, halacha does not permit one life to be taken to save the life of another – no matter how diminished the “quality” of the life of the former, no matter how great the potential of the life of the latter. “We do not push away one life for another one” is the halachic principle. Halacha, further, forbids any action that might hasten death, including the death of a person in extremis. For those who maintain that brain-death does not satisfy the halachic standard for establishing death, harvesting vital organs from a braind-dead patient is equivalent to murder.

Complicating—some would say driving—the issue is the fact that there is a large surplus of people in need of organs, and a dearth of suitable donors. According to the National Institutes of Health, more than 100,000 people are currently waiting for organ transplants, and close to 20 die each day because of organ shortages.

Those facts, some fear, combined with the acceptance (by the medical establishment and some halachic decisors) of brain death as the end of a life, may lead to a particularly slippery slope, at whose bottom lies the viewing of very old, yet unborn or very disabled human beings as mere organ repositories. This year, in fact, a small change may have signaled more sliding to come. The American Academy of Neurology, whose 1995 guidelines directed that tests to ascertain lack of brain function be performed twice on each patient, revised its suggestion, counseling that a single examination should be sufficient. There are now, moreover, physicians advocating the use as organ donors of people, including infants, with diminished brain function.

“Economic” and utilitarian concerns can play a role, albeit a rare one, in some halachic considerations. But they have no pertinence when at issue is the possible taking – even for a good cause – of a human life.

A further dilemma is presented by the idea, much proclaimed of late, that only those who are willing to have their organs removed in the event of their “brain death” should be permitted to receive organs removed from brain dead patients. Some Israeli media commentators are pressing for such an official national policy, and Israel has in fact already implemented a program allowing holders of donor cards to jump ahead of non-card holders (and their children) on organ recipient lists that are compiled in order of urgency of need.

There are many reasons, though, why a person might be unable to donate a vital organ. To take an obvious case, if a non-terminal patient has only one functioning kidney, no one would fault him for not offering it to a dialysis patient. Or if a patient had an infectious disease, no one would ask that he – or want him to – donate a compromised organ, even post-mortem. Yet no one would deny such unable-to-donate patients freely donated organs they needed.

What, though, if a person is bound by his religious beliefs – i.e. his conviction, say, based on his rabbi’s determination, that halacha defines death as cessation of heartbeat – to decline to be an organ donor at a state of “brain death”? Should he be disqualified as a result from receiving an organ – even an organ so procured?

He would not likely be justified — indeed, would arguably be acting in both a non-halachic and hypocritical way — to play a direct role in such procurement. But if a brain dead patient has been prepared for organ donation without the recipient’s encouragement, as a matter of course according to medical norms not consonant with halacha (or from a donor whose rabbinic authority hews to a halachic approach that permits organ donation in such a case), to offer his organs to whoever matches next on an urgency list and he is that person, would it be proper to apply an “if you don’t give, you don’t get” rule? Would it be just, or just spiteful?

Can a potential recipient’s religious beliefs – or, for that matter, his or her personal behavior – constitute valid grounds for penalizing him or her (or his or her child)? Lists of potential organ recipients are, rightly, compiled in order of urgency of need, not personal worth or religious convictions.

Legally speaking, denying someone a transplant simply because joining an organ-donation system would force him to dishonor his religious beliefs would clearly amount to a curtailing of his constitutional religious rights.

Even, though, approaching the issue from reason, not law, the only “justification” for denying an organ to someone who objects to how the organ was procured is a desire to punish the potential recipient for his beliefs.

Punishment should play no role in public policy, particularly when what is said to deserve punishment is a religious conviction.

(Next: Prof. Steven Resnicoff)

About Avi Shafran

66 comments

  1. there are several large mistakes in the bio:
    Rabbi Michael J. Broyde (1) is Director of Public Affairs of (2)Israel of America

  2. If the point of this post is to state that it would be unjust to withhold a BSD organ from someone in need who would not agree to donate his own in such circumstances, I would certainly agree.

    The new Israeli system, however, seems a just solution. Priority in receipt will be given to those who have agreed to donate themselves. Mida ke’neged Mida.

    But, I don’t think the strawman argument R. Shafran presents is the moral issue being debated in regard to the RCA Va’ad Halacha paper. But, what I find increasingly troubling is the absence of the principle explaining Eilu ve’Eilu. To wit:

    ושונין דבריהן ודברי בית שמאי
    ולא עוד שמקדימין דברי בית שמאי לדבריהן

  3. I missed the part where Beis Hillel called Beis Shammai’s view morally untenable.

  4. Actually, I think readers of the statement http://organdonationstatement.blogspot.com/ who don’t have chips on their shoulders would think it does abide with the talmudic principle I quoted.

  5. Rabbi Shafran wrote: “Those facts, some fear, combined with the acceptance (by the medical establishment and some halachic decisors) of brain death as the end of a life, may lead to a particularly slippery slope, at whose bottom lies the viewing of very old, yet unborn or very disabled human beings as mere organ repositories. This year, in fact, a small change may have signaled more sliding to come. The American Academy of Neurology, whose 1995 guidelines directed that tests to ascertain lack of brain function be performed twice on each patient, revised its suggestion, counseling that a single examination should be sufficient. There are now, moreover, physicians advocating the use as organ donors of people, including infants, with diminished brain function.”

    Realizing that death is defined by neurological criteria does not lead to a slippery slope. The American Academy of Neurology criteria were changed in response to the observation that there was no recovery after just one exam, and that two were not necessary. There was no change in what they were measuring, or the bottom line, just the realization that they were requiring more than what was necessary, based on many years and many patients. To claim otherwise is to either misunderstand or deliberately misstate the facts. (Rabbi Bleich records a similar change in criteria in ‘Time of Death’ where he states that halacha usually requires waiting 20-30 minutes after cessation of heartbeat to declare death. However, in situations where modern technology are able to more accurately confirm the lack of circulation, the waiting time can be less. It is the same process of using the same bottom line, but finding that different measurements achieve the same result.)
    Secondly, there have always been those who have wanted to withdraw care from people with all sorts of maladies, and this has nothing to do with accepting or rejecting brain death. It has to do with a quality of life discussion, which is totally seperate. This slippery slope argument has no basis in fact.

    By the way, for those who want to look at nuances of writing, one may wonder why this sentence was written the way it was: “Contemporary poskim Rabbi Yosef Sholom Elyahiv, Rabbi Shmuel Wozner, and Rabbi Moshe Sternbuch, shlit”a, concur as well; as do Rabbi J. David Bleich and Rabbi Mordechai Willig.” It seems that Rabbi Shafran doesn’t want to put Rav Bleich and Rav Willig in the same sentence as the others. Food for thought, or perhaps questions.

  6. Noam, also note who did and who didn’t get shlita put after his name. But in any event, R. Sternbuch supports brain death, as reported by Rabbi Steinberg in Assia.

  7. Ouch, Noam. In fairness, I don’t think he can help it.

  8. R Gil, let’s try this from a different angle: what makes you think someone like RSZA would necessarily oppose the description “morally untenable”? To give everyone’s favorite example, if you called a Chazon Ish position morally untenable, he’d say “in hachi nami.” So is doing so with the Chazon Ish no longer “elu v’elu?” So why isn’t it with RSZA?

  9. The argument against giving organs to those who refuse to donate is not an external punishment. It is based upon the idea that according to those who won’t give, the organ was obtained through murder. It should be a moral-ethical problem for the Rabbi Shafrans of the world.

  10. Would it be lifnei iver for me to encourage you to accept a donated organ, if you’re the only recipient?

  11. he did include RAS and (I think) RYBS in zecher tzadikim levracha

  12. Dr. Stadlan,
    Can you please clarify something which is not clear to me? I was under the assumption that very old people are not “good” organ donors. Is that correct?

  13. Regarding R. Elyashiv’s opinion: Does anyone know of any printed material from R. Elyashiv on this issue? Is there any way the public can determine if R. Elyashiv really understands what brain death is?
    Does anyone know which doctors assisted R. Elyashiv in this decision by supplying him with the relevant medical info?

  14. If you are going to name those who oppose the halachic use of brain stem death, it would seem appropriate in anything meant as a serious piece to name those posekim who are in favor.

  15. “While there are halachic decisors who maintain that lack of brain-stem function renders a patient dead, in the judgment of a majority of major decisors, “brain-dead” human beings whose hearts are still beating must be maintained on life-support.”

    I believe this to be factually incorrect. I think that most major decisors today do not believe that you have to keep these people on life support. In fact, many great poskim who do not hold of brain death also do not think you have to keep people alive artificially. Come to think of it, are there any poskim who hold that a brain dead patient, who can’t breathe on his own must be kep alive artificially? We have already seen that RSZA does NOT hold this position. There is a difference between not accepting brain death and holding that you have to keep these people artificially alive.

  16. >I missed the part where Beis Hillel called Beis Shammai’s view morally untenable.

    Maybe it was after Beis Shamai started killing members of Beis Hillel.

  17. To include RSZA among those who “clearly forbade” removing organs from brain dead patients is not totally accurate and thus casts a pale of double over Shafran’s entire essay.

    Further, it’s a red-herring to discuss “punishment” in regard to donation by those who won’t donate. (Not to mention the absurd comparison to a person who has only one kidney and CAN’T donate.) Forget punishment, it is completely morally untenable for one who believes that brain death is not death to accept an organ for himself or a loved one. Rabbi Shafran claims that this in this arena the ethics of the issue are purely decided by halacha. As such, one who receives a heart is clearly a murderer if that person holds that brain death is not death.

    And yes, all things being equal, when a donation committee must choose between two equal candidates, one of whom has a donor card and one who does not, there’s no question whatsoever that the one with the donor card should be preferenced. This is not “punishment”, it’s reward, and it’s simple, basic fairness.

  18. 1. The “if you don’t give, you don’t get [first]” rule is not made out of spite towards those who don’t give. It is meant to encourage giving. If it is as successful as intended, then there will be enough organs available, both for those who are willing to give, and for those who aren’t.

    2. I find the “I’m entitled to do whatever I want as long as I call it religion” argument quite distasteful. A person should be free to follow their religion, and also free to suffer the consequences for doing so. Perhaps R’ Shafran is correct that the constitution grants a special privilege to religious people of not letting the law interfere with their beliefs. But if so, this inevitably leads to anger, resentment, and disrespect towards religion by anyone who realizes they are not getting the privilege. In the context of Judaism in particular, this phenomenon is known as “hilul hashem”.

  19. WADR to R’ Shafran, the piece reads to me like what one might have written for a college debate class where he had been assigned the given: BSD is not acceptable for transplants, one may accept transplants. not that there’s anything wrong with that, but it makes it obvious that we’re talking advocacy, not intellectual analysis, not that there’s anything wrong with that.
    KT

  20. R’ Anonymous,
    Although you are a tzaddik gammur, and your points are well taken, since you this is a matter of life-and-death, I must respectfully challenge your comments at 12:10 a.m. and 6:53 a.m. this morning.

    At 12:10 a.m. you state that R. Moshe Sternbuch equates brain death with death. Please see my comment on R. Broyde’s article, last night at 8:11 p.m., where I present R. Moshe Sternbuch’s responsum from two years ago, published in Teshuvot Vihanhagot Chelek Chamishi. R. Moshe Sternbuch seemingly rules like RSZA that a brain dead patient (where the hypothalamus still functions) is potentially alive, and that it is absolutely forbidden to harvest organs. There is, however, ambiguity in R. Sternbuch’s position as to what he will rule if all the brain cells (including the hypothalamus) have died, or if the brain dead donor announced in advance whether he is willing to be killed to save someone else’s life.

    At 6:53 a.m., you state that it is not necessary to keep the brain dead patient on life support. Although RSZA may agree with you, in practice I believe it is forbidden to follow this directive of RSZA. [Also, according to Dr. Zacharowicz, RSZA may have retracted.] Based on the ruling of the Mishnah Berurah’s Bi’ur Halakhah in Orach Chaim 329:4 that we are obligated to desecrate Shabbat to heroically prolong the life of a gossess (and compounded by RJDB’s analysis that brain dead patients are not even gossessim), we are seemingly directed by the gemara in Shabbat 129a that whenever there is a dispute among the poskim regarding piku’ach nefesh on Shabbat, we must follow in practice the opinion that says to desecrate Shabbat. Such is the value of the sanctity of human life. Please see my comment on R. Broyde’s article at 6:11 p.m. yesterday.

  21. It seems that Rabbi Shafran doesn’t want to put Rav Bleich and Rav Willig in the same sentence as the others. Food for thought, or perhaps questions.

    Noam, also note who did and who didn’t get shlita put after his name.

    Agree. Offensive, whether intentional or unwitting. If someone is worth citing as a halachic authority, then treat him like the other authorities. If you don’t think his opinion carries that kind of weight, don’t bother to quote him.

  22. Benny. Obviously the purpose of transplantation is to put a well functioning organ in place of one that isn’t working so well. As we get older, organs will sometimes not work as well, and as a matter of practicality, there is an age cut off for donation.

    Sources for opinions of Rav Elyashiv can be found in Nishmat Avraham. It is very well footnoted. I recall that he participated in a letter or two with RSZA and I think Rav Waldenberg. I don’t remember if he published a specific in depth teshuva.

  23. What was the purpose of this piece? To tell us that those who don’t give shouldn’t be discriminated against? In the hundreds, make that thousand, of comments on brain death and halacha that have been posted on this site over the past few weeks, has anyone argued that they should be discriminated against? Hasn’t the argument been from the other side; i.e., if you think it’s murder how can you, as a halachic and a moral matter, participate in that murder by accepting an organ transplant that requires a brain dead donor? And as to that issue, not a word from R. Safran. Very disappointing.

  24. I just want to reiterate the purpose of this symposium, as I explained in the introduction:

    “This TorahMusings.com symposium on brain death has two goals, neither of which is resolving the debate. The first is to conduct a calm and respectful discussion, lowering the temperature of debate so we can remain a united community even while disagreeing. The second goal is to present to the public experts who voice their learned opinions in a non-technical fashion. They may or may not convince you that they are right but they will hopefully convince you that reasonable people can disagree on this complex topic.”

    All of the essays were written for the media and general public, not necessarily readers and commenters of this blog.

  25. R. shafrsn writes: “Machines and observations can measure electrical activity in the brain and “invoked potentials”; but the determination of when a soul has left a body is something less easily calibrated. To an observant Jew, halacha alone serves as the determinant.”

    classic/textbook case of a midrashic/religious argument in the guise of normative halakha; rather illustrative of this genre of halakhic reasoning.

  26. “lowering the temperature of debate”

    Hirhurim on February 13, 2011 at 10:08 pm
    I missed the part where Beis Hillel called Beis Shammai’s view morally untenable.

    “All of the essays were written for the media and general public, not necessarily readers and commenters of this blog.”

    Another “an unfettered search for the truth” eh?

  27. I found the discussion of R. Elyashiv’s opinion in nishmat avraham: http://www.medethics.org.il/articles/NA2/NishmatAbraham.yd.339.asp

  28. Since R. Shafran has raised the issue “the determination of when a soul has left a body” again as a matter of halacha, perhaps he can explain my previously unanswered Am ha’Aretz question:

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

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

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

    I am happy to be educated – but, please include an explanation of why this seemingly very relevant sugya from Sanhedrin seems to have been omitted in the halachic discussion “the determination of when a soul has left a body”.

  29. On Rabbi Shafran’s instruction, I added the term “shlita” after Rav Bleich and Rav Willig’s names. He merely separated the elder Israelis from the relatively younger Americans.

  30. Joseph Kaplan: Hasn’t the argument been from the other side; i.e., if you think it’s murder how can you, as a halachic and a moral matter, participate in that murder by accepting an organ transplant that requires a brain dead donor? And as to that issue, not a word from R. Safran. Very disappointing.

    Joseph- I’m astonished you find this offering disappointing. To be disappointed you’d have had to have an expectation of anything different. R. Shafran’s job history as the spinmeister for the Agudah – motto; defending the indefensible R’ us – should have belied that prospect l’mafreiah. Since his standing is what it is, I assume the reason R. Gil invited him to contribute to a symposium such as this was not for his own thoughts but in the prospect that, as their flack, he would convey a deeper understanding of the perspective of the Agudah’s moetzes, assuming they have a consensus. He did not – or possibly they don’t have one. Perhaps that was your disappointment. And by the way, those excavating nuances of disrespect in his separation of the various halochic worthies between two different sentences should rather take note of the professional reflex in play here which chose to mention such as Rs Willig/Bleich/RYBS at all. When is the last time he mentioned any of them in a seemingly respectful context? Does the man know how to try play to an audience or what?

    Now, R Gil goes into high dudgeon every time someone suggests there is a teensy weensy moral issue in play here. R. Gil’s contributions to this aspect of the discussion might be summed up by “What, you’re calling RSZA p’soq morally untenable” neatly avoids addressing the core issue. Off-loading your moral sensibilities and obligation to have an opinion about right and wrong to others, and attacking those who have not done so, isn’t advancing any understanding here. I personally belong to the if-it-looks-like-a-duck-quacks-like-a-duck school and think people who have made moral judgments are doing what they should be doing and those appealing, or deferring, to others – the “g’doylim” – are not, especially when we might not know precisely what information or understandings others were, or are, working with.

    what’s quite astonishing in all this is ignoring the facts of organ donation – a valuable contribution to this symposium by Prof Prager. Prof Prager’s presentation made it clear there is an intimate connection between the donor and individual recipient. That while a donation might in any event be made to the next guy on the list, the particular circumstances – and implicitly the timing of the “murder”– are done specifically to save the life of the particular recipient donor it is going to. Such as R. Shafran – but also implicitly R Gil since he refuses to address the substance directly himself (what, you’re gonna call RSZA a..) thus continue to describe a process (“But if a brain dead patient has been prepared for organ donation without the recipient’s encouragement as a matter of course..”) which, according to Prof Prager, simply doesn’t exist. Since there is this tight connectivity between donor and recipient – the ”murder” is taking place for the specific person’s benefit, I do not think it even matters whether the timing is adjusted for specific recipients. But I wish prof Prager or someone else knowledgeable would clarify that issue as well. Do the circumstances of the individual recipient tailor the time of ventilator shut-off (or timing of the exsanguination) by any amount at all under any circumstances? If so, I can’t even imagine what potential limmud would disallow a donation while allowing an acceptance.

  31. >On Rabbi Shafran’s instruction, I added the term “shlita” after Rav Bleich and Rav Willig’s names. He merely separated the elder Israelis from the relatively younger Americans.

    And forgot to write “shlita” after them. Sure, if you believe that.

  32. Mechy, the “disappointing” was directed to R’ Gil who had promised us a solid piece on the no to giving/yes to receiving position. The amount of hard work that Gil puts into this blog which so many of us find worthwhile is enough of a basis for me to be disappointed; I don’t, however, disagree with your comments re R. Safran.

  33. I was going to say what Mechy said. Thanks for nailing it first.

  34. R’ Mechy Frankel,

    Your points are well taken. And I agree with you; based on my comments earlier at 8:09 a.m., I would recommend that the various branches of the United States government (judicial, legislative, and executive) convene to draft a constitutional amendement imposing a moratorium on all cadaveric organ transplants until further notice. [My preference would be that the constitutional amendement should also demand that all healthcare workers are obligated to heroically maintain all BSD patients on a ventilator, heart-lung bypass or ECMO machine.] However, in fairness to the Mo’etzet Gedolei Torah of the Agudath Israel, it is relying on RSZA’s novel proposition that the Noahide legislature/judiciary is empowered to modify the parameters of homicide for Noahide healthcare workers. I personally would be too hesitant to rely on RSZA’s novel proposition regarding the Noahide Code because he is challenged by RMF. I would say “mai chazit” – we cannot sanction registration for organs and possibly be guilty of geram retzichah, when RMF challenged RSZA’s interpretation of the Noahide Code. However, I fully understand that the Mo’etzet Gedolei Torah of the Agudath Israel wants to take more time to study this carefully, since lives are at stake (on both sides). As we are told in Pirkei Avot 1:1, “be deliberate in judgement”. The Mo’etzet Gedolei Torah needs time to deliberate, and most likely needs to meet face-to-face with all the Gedolim specified by the recent RCA statement.

    Regarding the Agudath Israel’s separation of the RIETS poskim from the other distinguished poskim – one should agree with it and take it as a compliment to RIETS and as a Kiddush Hashem. For as HaRav HaGa’on RMDT commented in the 1988 symposium (immediately after RHS finished his lecture), “I don’t think there’s any Torah institution anywhere in the world where such a discussion could take place, except here Yeshivas Rabbeinu Yitzchak Elchanan”. In other words, RIETS has rightfully established itself as a leader by combining the study of Torah with the study of worldly reality. Indeed, it is clear from RMF’s many responsa in IM that he was most grateful to his distinguished son-in-law (she’yibadel lichaim) RMDT for not only being a Torah scholar but also a connoisseur of worldly reality. Thanks to his son-in-law RMDT, RMF was able to deliver accurate piskei halakhah. [However, I hasten to note that on the particular issue of the interpretation of Chatam Sofer, RMF’s ruling must be regarded to have been overturned by RSZA, and thus a BSD patient must be treated as potentially alive in practice (even though *most probably* he is dead in theory)].

  35. Lawrence Kaplan

    Gil: Are you and Rabbi Shafran sure that Rav Sternbuch is older than (“the relatively younger”) Rav Bleich? RJDB, by the way, was born in 1936. I guess that makes me a baby.

  36. Seems he is. Born in the 1st quarter of 1926 in Hackney, London: Moses Schterenbuch (mother’s maiden name Pines) per FreeBMD.

  37. Question for R’AS – Assuming one can take organs, why don’t the religious elents in Israel push for the triage to be done along the lines of the priority categories called for by halacha as listed in Horiyot? and if the answer is In Minchat Shlomo Tanina (2-3) siman 86 R’SZA in discussing medical triage says (my translation) – see mishneh and gemara in horiyot….but I think in our time it is very hard to conduct ourselves according to this – could he please explain why.
    KT

  38. “I would recommend that the various branches of the United States government (judicial, legislative, and executive) convene to draft a constitutional amendement imposing a moratorium on all cadaveric organ transplants until further notice. [My preference would be that the constitutional amendement should also demand that all healthcare workers are obligated to heroically maintain all BSD patients on a ventilator, heart-lung bypass or ECMO machine.]”

    R’ Spira: I understand that you are a serious talmid chacham with a tremendous amount of knowledge. But I must say that it is difficult to take you seriously when you write things like this.

  39. IH, i think your proof from the gemara in sanhedin vis-a-vis the soul is a good one. however, why chazal did not use a departing soul as a definition of death, is more fundamental: it provides no method for being determined. chazal prefered more practical definitions that derive from traditional mimetic practice.

  40. The United States Constitution has nothing to do with anything here, Shalom. It doesn’t forbid murder either. These are all state issues. And if you think organ donations are about to banned because a bunch of Orthodox Jews are, frankly, navel-gazing (let’s be honest- what do you think this looks like to the rest of the world?)…well, you know the rest.

  41. Dr. Bill: thank you. I agree with your conclusion, but since 2 of the 8 “symposium” authors (R. Weiner and R. Shafran) have linked the metaphysics into the halacha, I assumed they had a different understanding of the contradiction inherent in the Sanhedrin sugya I quoted. Perhaps I was mistaken.

  42. IH, thank you for your comments. part of the reason that midrash, even conceptual/theoretical analysis of a halakhic sugya according to some or metaphysics is deemed inadmissable (or at the very least suspect) in a halakhic discussion is precisely because it has not been vetted and is often open to entirely personal interpretation; in this case, a rather weak interpretation as you point out. i normally suspect those who employ such arguments as attempting to assert a view that reflects a religious or personal pespective, clothed in halakhic sounding garb.

  43. ” The American Academy of Neurology criteria were changed in response to the observation that there was no recovery after just one exam, and that two were not necessary.”

    This is correct. A study published last month showed that of 1,229 adult and 82 pediatric patients diagnosed as brain dead on a first neurological examination, the number who were not diagnosed as brain dead on a second examination was zero.

    http://www.neurology.org/content/early/2010/12/15/WNL.0b013e3182061b0c.abstract

    ” if a brain dead patient has been prepared for organ donation without the recipient’s encouragement”

    As has been repeatedly said here by myself and others, for some cadaver organ transplants that DOES NOT HAPPEN. EVER.

    A donor heart is only removed beating, from a breathing body. And the time of the removal is set by the transplant team for the convenience and well-being of their particular patient. If you accept anything other than brain death as halachic death, to transplant a heart you murder the donor in order to save the life of the recipient. This reality continues to be ignored by essays such as this one.

    “I would recommend that the various branches of the United States government (judicial, legislative, and executive) convene to draft a constitutional amendement ”

    The executive and judicial branches have nothing to do with constitutional amendments, only the legislative branch. I doubt you could even find anyone to introduce such a measure.

  44. R’ Joseph Kaplan,

    Thank you for your kind words. Vihamevarekh yitbarekh. You are correct to question my proposition, which therefore requires further elaboration. My proposition is divided into two parts: (a) a constitutionally-enshrined moratorium on cadaveric transplants, (b) a constitutionally-enshrined requirement to medically prolong the existence of BSD patients.

    (A) My proposition for a moratorium on cadaveric transplants is prima facie surprising because it goes directly against what RMF advocated in his original responsum devoted to the topic. Namely, in IM YD 2:174:4 (final paragraph), RMF encourages cadaveric transplants as a lifesaving mitzvah (which it truly is, as HODS has beautifully educated the public on its website). However, because of the intrinsic uncertainty in the definition of death that has accumulated in the responsa literature in the four decades that have elapsed since the authorship of RMF’s original responsum (which interestingly enough corresponds to the dictum “a person does not understand his Rabbi’s opinion until after forty years”, as per the gemara in Avodah Zarah 5b) – in particular the apparently unresolved dispute between RMF/RYBS vs. RSZA in how to interpret Chatam Sofer – RMF’s enthusiastic endorsement of cadaveric organ donation appears to have become like the law of a “ben sorer umoreh”, viz. entirely true in theory but logistically impossible to implement in practice. Therefore, my proposition becomes sensible.

    (B) My proposition for a constitutional requirement to medically prolong the existence of BSD patients is prima facie surprising, seeing as I never established any Torah source requiring Noahides to save the lives of other human beings. To be sure, Noahides may not murder, and thus organ harvesting from a BSD patient or even deactivating the ventilator of a BSD patient is problematic for Noahides, and should be addressed by a constitutional amendment. But why should there also be a constitutional amendment requiring Noahides to actively take heroic measures to prolong the life of the BSD patient? Just because Jews are commanded in the mitzvah of piku’ach nefesh and safek piku’ach nefesh, who says Noahides are equally so commanded? In fact, in a 1989 lecture, RJDB indeed claims that there is no obligation for Noahides to save the lives of other human beings (-only to refrain from killing other human beings).
    http://www.yutorah.org/lectures/lecture.cfm/711770/Rabbi_Dr._J._David_Bleich/Withdrawl_of_Treatment_I_of_II

    However, I think a source requiring Noahides to save the lives of other human beings emerges from a responsum by R. Eliashiv in his recently published Kovetz Teshuvot III, nos. 69 and 124. There, R. Eliashiv points out that the phrase “vachai bahem” (in Leviticus 18:5), which is the source for piku’ach nefesh and even safek piku’ach nefesh overriding Shabbat (as per the gemara in Yoma 85b), is applied by the gemara in Sanhedrin 59a to Noahides. Although the gemara in Sanhedrin addresses the mitzvah of talmud torah and not the mitzvah of piku’ach nefesh, R. Eliashiv argues that it stands to reason that if Leviticus 18:5 applies to Noahides in the sense of talmud torah, it should equally apply to Noahides in the sense of piku’ach nefesh. Tashbetz III, no. 37 (s.v. viharamban) understands Yoma 85b to constitute an obligation; where one is entitled to violate a commandment to save a life (either one’s own or someone else’s), one is obligated to do so. Ergo, combining R. Eliashiv with the Tashbetz, it would emerge that Noahides must also save lives.

    R. Eliashiv is clearly disputing Minchat Chinukh no. 296 (sec. 3 in the Makhon Yerushalayim edition), who claims that Yoma 85b is irrelevant to Noahides. Likewise, Chiddushei R. Akiva Eger on Shulchan Arukh YD 62 cites Teivat Gomé as denying the Noahide applicability of Yoma 85b. However, with all due reverence exhibited before the great luminary R. Akiva Eger, a careful inspection of Teivat Gomé reveals that his meaning is more accurately captured by Pithei Teshuva to YD 155, §4, where Teivat Gomé is described to have been in doubt on this point. In any event, R. Eliashiv torpedoes the proof from Exod. 4:24, such that Yoma 85b may plausibly be construed to envelop Noahides.

    Actually, this question may be inherent in Tosafot to Sanhedrin 59a, s.v. leika mid’am dili’Yisrael sharei. There, Tosafot express a doubt whether a Noahide obstetrician may kill a fetus to save its mother. RJDB (Contemporary Halakhic Problems IV, pp. 194-196)offers six possible dimensions to explain the doubt with which Tosafot is grappling. [N.B. In my opinion, there is a logical inconsistency in the way RJDB presents the series of sfekot; the sfekot should be resequenced as 1-2-6-5-4-3.] Explanation no. 3 of RJDB (which in S. Spira’s opinion should be resequenced as explanation no. 6) is that Tosafot are uncertain whether a Noahide is commanded to save the life of a fellow human being. [According to the aforementioned Minchat Chinukh, a Noahide is not; according to Shu”t Ko’ach Shor, no. 20, p. 33a, a Noahide is.] Ko’ach Shor (and possibly Tosafot) would thus serve as a precedent for R. Eliashiv. [Apparently, RJDB was unaware of this point when he delivered his original 1989 lecture.]

    Moreover, even RJDB in that 1989 lecture implicitly concedes that a Noahide society must heroically prolong the lives of its BSD members, if for no reason other than the fact that some of the citizens (in today’s cosmopolitan world) are Jews. The Jewish citizens must fulfill their duty of piku’ach nefesh and safek piku’ach nefesh. Since there cannot be discrimination in today’s cosmopolitan world, all BSD lives – Noahide as well as Jewish – must saved.

    [This latter point can be compared to the mishnah in Bava Batra 7b which authorizes citizens of the same city to legally compel one another to erect fortifications as a protection against the future possibility of marauding armies. Despite the fact that there is no foreseeable danger to the city at the present time, even a single citizen may demand that this expensive protection be provided, whereupon no one else may excuse himself from paying his share of the cost on the plea that he chooses to accept the danger of being ransacked. The reason is simple: the purpose of society, as part of an unspoken implicitly binding contract that exists among its constituents, is to promote the public welfare by providing certain services- one of them being protection from invasion. By the same token, the members of a society may compel one another to build hospitals. This provision applies fully to a Noahide society because the obligation to obey an existing legal contract is subsumed under either the Noahide commandment against theft (according to Rambam, Hilkhot Melakhim 9:14, as elaborated by Shu”t Chatam Sofer 6:14) or the Noahide commandment of justice (according to Ramban to Genesis 34:13, as elaborated by the same Chatam Sofer). Indeed, R. Shlomo Goren (Meshiv Milchamah I, pp. 30-39) demonstrates that when a person has accepted a societally imposed duty to protect the lives of others, he is legally responsible for negligence in the execution of those duties as though he directly harmed those who are dependent on his professional diligence. Although, in context, R. Goren speaks of a military commander, his remarks obviously apply to civilian healthcare workers as well. This principle would then obligate the hospitals of a Noahide society to provide the best services possible, and since the Jewish members of society need hospital services which prolong the existence of BSD patients, and since it is not possible in today’s society to discriminate between Noahides and Jews, the hospitals should – logically speaking -prolong the lives of all BSD patients.]

    For this reason, in my opinion a constitutional amendment makes sense, if (and only if) we should conclude that according to Halakhah a BSD patient is possibly alive.

  45. R’ Nachum and R’ Charlie Hall,
    Thank you for your kind words and important rejoinders. You are both right; we Jews are a vanishingly small minority on the world stage. And, as you say, we are essentially engaged in “navel gazing” here (-indeed, the navel is one of the opinions in Yoma 85a)! But my feeling is that we – as the privileged bearers and ambassadors of the Torah – have a disproportionate influence on the American legal system compared to our demographic insignificance, as explained by R. Zevulun Charlop in his article at http://www.yutorah.org/lectures/lecture.cfm/704396/Rabbi_Zevulun_Charlop/God_in_History_and_Halakha_from_the_Prospective_of_American_History
    It’s precisely for this reason that, in the original 1988 symposium, HaRav HaGa’on RMDT remarked that the nations of the world are watching the proceedings carefully, and are saying to themselves “rak am chakham vinavon hagoy hagadol hazeh”.

  46. lawrence kaplan

    Shalom: As my brother said nicely and Nachum said not so nicely, your proposal is completely divorced from reality. Even if Jews have disproportionate influence on the American legal system, this does not mean–to say the least–that the US will sdopt a constitutional amendment going against all current medical pracitce because of what you think a mahloket between RMF and RSZA requires of Noahides. You are invaluable as a source of halakhic information, but a posek has to have a sense of the reality of the situation confronting him.

  47. With all due respect to the author, I am very unimpressed by this article. It stoops to fear mongering instead of focusing on the serious religious/moral/halachic issues. To suggest or imply that following the poskim that consider brain steam death as halachic death will lead to taking organs from living children or adults considered unfit/inferior borders on offensive.

  48. I’m not so dismissive of the constitutional amendment suggestion of Reb Spira. Procedurally, the constitution is not the way to go; federal legislation is.

    I also respectfully disagree with Reb Spira’s substantive proposal, i.e., a moratorium on cadaver organ donation, and all health care workers are required to utilize heroic efforts to maintain BSD patients. I’ve learned the past few years, in the child abuse arena, that most often, compromise and consensus are cherished American values. Where “even” many orthodox Jews are accepting BSD, Congress and the American people will never accept this proposal.

    Nevertheless, I share the concerns of Rav Gedalia Dov Schwartz, Rav Moshe Sternbuch, and others. I don’t trust all the doctors, when they declare BSD. That’s why Rav Schwartz, although he believes in BSD, won’t sign a HODS card, as I think I learned here. Federal regulation of declaration of BSD may be one answer to this problem.

  49. Lawrence Kaplan

    Ellliot Passik: You say you are not so dismissive of Rabbi Spira’s constitutional amendment, but your own idea of federal regulation of the declaration of BSD is far far removed from Rabbi Spira’s suggestion. It is the difference between a proposal which takes account of reality and one which doesn’t.

  50. eliot pasik, i agree with you that beyond stating BSD or any other abstact definition, specifying a precise, audited procedure should be (by law). how this happens may differ by state. as i understand it, in israel the procedure to determine, not just the definition, is written into the law. i was told that in NJ the rules of the organ recieving organization(s), require a strict procedure. i do not know what occurs in other states. i also do not know if this is appropriate for federal or state jurisdiction. i can easily imagine procedures and rules being violated without strict, auditable, guidelines.

  51. Just an idea, but seeing as how there is no diminishment in life span or health for those who donate kidneys, if the Orthodox had a policy of donating kidneys in large numbers, this could downplay the potential argument that religious Jews aren’t pulling their own weight in regard to receiving organs from others.

  52. Shachar Ha'amim

    ““Economic” and utilitarian concerns can play a role, albeit a rare one, in some halachic considerations. But they have no pertinence when at issue is the possible taking – even for a good cause – of a human life.”

    The above is simply not true. See e.g. pages 56-57 of this book. http://www.daat.ac.il/daat/vl/rakmesirut/rakmesirut01.pdf

    There are clearly cases where utilitarian concerns do play a role in granting precedence in saving lives. One could even argue that as applied to the question at hand, if a BSD patient can save more that one life (i.e. mutiple recipients of organs) then the halacha advocates that the multiple lives be saved rather than the attempts to possibly resucitate the BSD patient.

    I would also add that Rabbi Safran’s arguments for not allowing non-donors to receive, and his claims that it might be unjust to grant precedence to donors are simply specious. they have no basis. even someone with sick and decrepit organs can sign a donor organ card. it is up to the transplant doctors to decide whether they can be used or not.
    there is no way to categorize what is clearly an incentive system as “punishment”. Also it is very difficult for me to fathom how one who is receiving an organ can somehow not “play a direct role in such procurement”? By being the recipient s/he is playing a “direct role in the procurement”.

  53. Shachar Ha'amim

    re: my comment above – I’m not suggesting that someone be murdered to save multiple lives. what I’m saying is that taking everything into account, the BSD versus the multiple recipients might fall into the category of many vs. one triage situations

  54. Mistabra – I absolutely agree.

  55. Some thoughts after writing this comment chain:

    Gil, you wrote in the intro that one of the two goals of this symposium was “to conduct a calm and respectful discussion, lowering the temperature of debate so we can remain a united community even while disagreeing.” This is an achievable goal in the blog entries themselves — assuming the writers could reach eachother’s essays and respond to them. But unless you adopt a far heavier hand at moderation, experience has shown that this is not achievable in the comment chain. (But then the same comments will be made, just on other blogs, and with discussion of moderation policy thrown in as well likely involving words like “draconian” and “censorship”.)

    On each post were people who were disappointed the essay didn’t say more, or address the point they wanted to see addressed. Okay, reality doesn’t always match expectations. But this gives you license to ridicule the author for it? This has been a pattern since R’ Dr Glatt’s first essay, and hasn’t let up.

    On this post, much was made of the words, “Contemporary poskim Rabbi Yosef Sholom Elyahiv, Rabbi Shmuel Wozner, and Rabbi Moshe Sternbuch, shlit”a, concur as well; as do Rabbi J. David Bleich and Rabbi Mordechai Willig, shlit”a.” Me, I read them as “those on the right take the more conservative approach, as do these noted Mod-O poseqim.” But really, I didn’t pay too much attention to the exact wording altogether. However, there appears to be a habit among many MO Jews to downright hunt for things to be insulted over. I can’t figure out any other reason why a sentence that ended in an honorific (as far as you saw) would have been taken as a slight.

    And this then spins out of control into a general condemnation of Agudah. Frankly, I hope this comment chain stays on line for a long while. Whenever I hear a Mod-O Jew criticize the right for their lack of “eilu va’eilu”, I can point them to it to show that the MO camp is no more accepting of plurality. It’s actually worse in the MO case, since they’re claiming a greater acceptance as being part of the platform!

    Last, I’m dismayed by the amount of antinomianism I am finding from MO authors. Yes, the idea that halakhah might imply that we are allowed to receive organs but not to donate (or extract, BTW) them seems morally problematic. But to say that compells a given halachic answer? Might as well argue that there can’t possibly be agunos, nor mamzeirim, that we can’t stand in the way of a kohein who wants to marry a giyores, that driving to shul on Shabbos is logically justified by the need to get people to shul at all, etc… Halakhah is halakhah, and at times we must submit with a “teiqu”. Perhaps this is one of these times, perhaps not. But to say that someone must give a pesaq they don’t find halachically sound because you don’t like the moral outcome otherwise? Isn’t that a distinctly Conservative legal process?

    -micha

  56. Yes, the idea that halakhah might imply that we are allowed to receive organs but not to donate (or extract, BTW) them seems morally problematic. But to say that compells a given halachic answer?
    ===================================
    As in there can’t be anything forbidden to Non-bnai brit that is permitted for us? As in meta rulings that reflect the sakkanah/hatred that we will be in if a practice is established that casts us unfavorably in non-bnai brit eyes?
    KT

  57. Micha- I authored the comment pointing out Rav Shafran’s diyyuk between the chareidi and the MO. Just so you know, the shlita was not there initially and was added afterwards. Those who have read R. Shafran’s works know that he very carefully writes what he means, and means what he writes. It is his job to be a master of communication. Therefore, when there is a demarcation between the chareidi and mo poskim, and one group gets shlita and another doesn’t, it is reasonable to ask why. Otherwise we have to posit that R. Shafran is guilty of shoddy writing, which is certainly not his mo(modus operandi ). There have been enough attempts by the right to deligitimize the left that raising the question is certainly reasonable. I think that given past writing, i am sorry to say that rav Shafran doesn’t deserve the benefit of the doubt.

    Regarding point two, of course Halacha is the bottom line. How to determine the Halacha, how much to take into account science, logic, metahalachic issues and other considerations winds up being the point of contention. Brain death is different from all the other issues you listed in that there is a perfectly acceptable halachic approach that doesn’t result in logical incoherence or thorny ethical problems. Unfortunately at this point many poskim chose or are choosing to advocate a position that does not seem logical, in consonance with science, and produces other difficult issues, some of which have been under intense discussion. I agree that people should chose to donate organs only if they believe it is the halachically correct approach, not for other reasons.

  58. Noam, I intentionally didn’t name names. But since you took blame… R’ Shafran was attacked before anyone knew that Gil added the shlit”a. You wrote, “It seems that Rabbi Shafran doesn’t want to put Rav Bleich and Rav Willig in the same sentence as the others. Food for thought, or perhaps questions.” It was only because you raised the topic that Gil mentioned that he added the “shlit”a”. You’re trying to get off the hook using excuses you didn’t know at the time. But the whole approach of diyuq halashon in an essay written for a blog, inspecting nuances… There is a witch-hunt mentality in Mod-O, looking for things to be offended over.

    As to my other point, you decided for the posqim in question that “there is a perfectly acceptable halachic approach that doesn’t result in logical incoherence or thorny ethical problems.” How do you know they find it acceptable? You mooted the halachic discussion by saying that those within that discussion are supposed to consider both sides viable. And thus, the halachic process exhausted, we can look at metahalachic issues. But it isn’t exhausted because those who disagree with relying on BSD don’t consider it even a viable shitah. They see it as advocating murder, or at least possible murder, and thus outside the pale of consideration. BSD is eliminated on halachic grounds, not allowing our intuitive sense of moral issues (“natural morality”) to come to play.

    Side point: We are talking as though the atypical case is the normal one. Most people on life sustaining equipment are not good candidates for organ donation, even if we had a 100% sign-on rate. The typical case in which BSD is an issue does not involve organ donation.

    -micha

    PS: Am I the only one who keeps on seeing reference to Berkley Standard Distribution Unix when that acronym (BSD) is used?

  59. For the record, I only added shlita after Dr. Stadlan brought it to my and R. Shafran’s attention.

  60. Micha. I have no idea what you mean in your first paragraph. As R. Gil has noted, r. Shafran wrote the sentence without the shlita, and my comment was in response to that original posting. I take full responsibility for what I wrote and am not looking for excuses or ‘trying to get off the hook’. I think you misunderstood what I wrote completely. Obviously you have your thoughts regarding MO/chareidi relations, and I have mine. It is true that Mo may be hypersensitive to insult, but on the other hand, enough attempts have been made on the part of chariedim to deligitimize MO that it is reasonable to ask a question. Rabbi Shafran, as the spokesperson for the Agudah can certainly be expected to write what he means, and can also be expected to be a master of the English language.

    Regarding point two. You don’t have to accept brain death. However, those who do not can be reasonably expected to address all the side issues that accompany that position; it produces logically incoherent results, it conflicts with known scientific ideas, and produces ethical/moral problems such as the accept but don’t donate issue.

    I am not arguing that brain death has to be accepted because of morality arguments. It is accepted by many because they feel there is sufficient halachic justification.

    Regarding your side point, there is a huge difference between being in life support, by which I assume you mean a ventillator, and being possibly brain dead. A very significant percentage of those who are dead by neurological criteria are candidates to donate organs.

  61. Dr. Stadlan didn’t bring the “Shlit”a” to your attention. Anonymous did.

    Dr. Stadlan pointed out the very separation between the UO and YU Rabbis by a semicolon. Horrors!

  62. Shalom Aleikhem Dr. Stadlan,
    Thank you and yi’yasher kochakha for your important response to R’ Micha. In the recent comments on Professor Resnicoff’s article, R’ Elliot Pasik has discovered a halakhic rationale to accept organs – R. Moshe Sternbuch’s novel position that a person may agree to sacrifice his own life in order to save others, if so authorized by a Beth Din on a case-by-case basis. As I indicated in response to R’ Elliot Pasik, I personally am too frightened to follow R. Sternbuch on this count (seeing as RSZA rejected R. Sternbuch’s approach), and I would think that a Beth Din that says to do so should not be heeded, apropos “ein shali’ach lidevar aveirah”. However, R’ Elliot Pasik has outmaneuvered me, and now the RCA will have to deal with the halakhic evidence that R’ Elliot Pasik has uncovered (-as well as the proper interpretation of the gemara in Shabbat 129a). Presumably, the RCA will need to contact R. Moshe Sternbuch directly to elucidate the matter further. According to R. Sternbuch, it is entirely ethical and moral to accept an organ, when authorized by a Beth Din on a case-by-case basis.

  63. RSS: I’m not sure what your opening comment has to do with the rest of your paragraph. (Is it just a missing carriage return?)

    I didn’t comment on the halakhah, I commented on the commenting here. I said I found people overly willing to vilify the other — the same community who claim to be victims of that other’s lack of tolerance. I also criticized the basic antinomian tone of many of the comments. There are valid halachic arguments either way, but once you criticize someone’s pesaq for their standing on what they think is legally compelling in the face of morality… Aren’t we supposed to subjugate our intuitive natural morality to the halachic process?

    I do not know the medicine, and do not know the halakhah. If I were to post on the issue itself, it would only be to point out how much hasn’t been made clear. Not to take a position myself.

    -micha

    -micha

  64. Thank you, R’ Micha, for requesting a clarification, which is definitely merited, since my comment yesterday was ambiguous. [My apologies for this.] The purpose of my comment yesterday was two-fold:

    (a) To acknowledge the important halakhic as well as scientific case that Dr. Stadlan has presented. Hence, I congratulated him in my opening sentence.

    (b) At the same time, as the next step in the halakhic dialectic of shakla vitarya, to endeavour to uphold your position R’ Micha. Namely, now from R. Sternbuch it emerges that even though BSD patients may be alive, one may still accept organs from donors who previously announced their willingness to commit suicide for the sake of saving others. As mentioned, I personally would never have fathomed such a halakhic conclusion is possible, and certainly RSZA opposed such an conclusion, but R’ Elliot Pasik is correct that R. Sternbuch has now challenged RSZA and thinks that a Beth Din is allowed to advocate such a suicide-for-the-sake-of-saving-others approach on an ad hoc basis. This is something the RCA will have to address in communicating with R. Sternbuch to clarify the meaning of his responsum. [Examples of specific questions I would pose to R. Sternbuch if I were R. Bush: (1) Is this a Beth Din of any three individuals, the same way we convene a Beth Din on Erev Rosh Hashanah in order to perform Hatarat Nedarim? Or is this a Beth Din of Dayanim Musmakhim? If the latter, is Yoreh Yoreh sufficient, or is Yadin Yadin also needed? (2) What are the particular criteria the Dayanim are supposed to employ on an ad hoc basis to decide whether an individual may commit suicide to save someone else’s life? (3) How can R. Sternbuch deviate from RSZA, in light of the gemara in Shabbat 129a?]

    I agree with you fully that we as Orthodox Jews subjugate our emotions to the divine law manifest in Halakhah. Indeed, Shulchan Arukh Orach 25:5 says so explicitly (-interestingly enough, the same passage of Shulchan Arukh that refers to the significant roles of the brain and heart so central to the BSD discussion). That, by way of homiletics, explains the gemara in Berakhot 6a

    “And all the nations of the world shall see that the Name of G-d is proclaimed upon you, and they shall revere you”: We learned in a beraita: Rabbi Eliezer says, these are the tefillin in the head.

    Namely, a person who constantly carries inside his head the message of the tefillin, to subjugate his emotions to the Halakhah, will command the respect of all humanity.

  65. ISRAEL’S NEW LAW GIVING PREFERENCE TO PEOPLE WHO HAVE ORGAN DONOR CARDS
    Below is a letter published in the 5 Towns Jewish News a few weeks ago by Dr. Leon Zacharowitz followed by my rejoinder to him on this issue.

    More On The Organ Debate

    Dear Editor, I wish to bring to your readers’ attention a scary development. For the past several years, Agudath Israel of America and other chareidi groups have been fighting for equality under international and national law with regard to end-of-life matters. This equality is about to change. As of January 1 of next year, Israeli residents who sign an organ donor card—permitting doctors to remove vital organs at their discretion should they be labeled “brain dead”—will be moved to the front of the line to receive organs should they themselves ever need an organ. Conversely, those who for whatever reason do not sign such a card will be moved to the bottom of the list should they ever need an organ.

    While this has limited significance to most Israeli chareidim—since they follow the piskei halachah of Gedolim such as Rav Shlomo Zalman Auerbach, zt’l, and yl’t Rav Elyashiv, shlita as well as other leading poskim who forbid the receipt of organs in Eretz Yisrael—this new law may serve as a precedent worldwide. Unchecked, this law will overturn centuries of medical ethics, wherein the decision regarding who should get care depends solely on the medical condition of the patient.

    For example, under the new law, a thief or murderer who has in the past signed an organ donor card will almost certainly be given preference over a Hatzolah member, the head of a soup kitchen, or any of the myriad of charedim who contribute all sorts of benefits to society—simply because they signed this card, whereas the charedi declined to do so, having accepted the halachic ruling of their posek. If this is not religious discrimination, what is?

    I strongly advise readers who live in Eretz Yisrael or have relatives who live there to contact the Members of Knesset of the religious parties and ask what if anything is being done to counter this dangerous law. Time is not on our side. The time to act is now.

    Respectfully,
    Leon Zacharowicz, MD
    Member of the Executive Committee of the Arichas Yamim project of Agudath Israel of America
    Co-founder of the International Yarchei Kallah in Medical Halacha

    Dear Editor,

    One who thinks a brain-dead person is alive, and nonetheless puts himself on a list asking doctors to murder the brain dead patient and take out his organs is committing an act which is morally repulsive and halachically untenable. In addition, in spite of Dr. Zacharowicz’s hyperbolic claim that the new Israeli law will move those who don’t have an organ donor card to the bottom of the organ waiting list, it is simply not true. The Israeli algorithm that calculates a person’s place on the waiting list is combined of many factors such as length of time on the list, the person’s dire medical need, etc. Only when two people have the same ranking on the list, the person who has an organ donor card will be given preference.

    Moreover, in spite of Dr. Zacharowitcz’s logic, the principles of justice and fairness dictate that one who refuses to donate organs to society should not benefit by taking organs from society. You can’t have your kugel and eat it too. Furthermore, Dr. Zacharowicz’s cry of religious discrimination is spurious. This new law applies to anyone in Israel who doesn’t have an organ donor card, including the many secular Israelis who are too squeamish, too selfish, or too lazy to register for an organ donor card.

    Perhaps if Dr. Zacharowicz lived in Israel instead of Long Island, he would feel the acute need for organ donors in this country. Perhaps he would meet, as I do, the many people on the list who die due to the dearth of donors and then he too would understand why this law was enacted. The test of integrity is the willingness to pay the price for one’s principles.

    Robby Berman, Jerusalem,
    Founder and Director, Halachic Organ Donor Society

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