Professor Steven H. Resnicoff / If someone who is brain dead is halachically alive, a matter of significant halachic debate, secular adoption of the brain death standard could, in a number of ways, lead to the murder of Jews and non-Jews. A goses is someone who is dying and is imminently terminal. His life is likened to the flame of a flickering candle. It is forbidden to touch or move such a person for any purpose other than to help the goses, lest such touching or movement extinguish the flame. According to some rabbinic decisors, including R. Shlomo Zalman Auerbach, people on respirators who are believed to be brain dead have the halachic status of safek goses, to whom these prohibitions would apply. Nevertheless, upon a finding of brain death, secular law would allow a hospital certain rights such as to cease treatment or to extract organs. Consequently, the hospital conducts tests to determine whether the patient is or is not brain dead. Such testing is not designed to benefit the patient who is tested, but in order to authorize the giving of his organs—or his hospital bed—to someone else. According to R. Shlomo Zalman Auerbach, these tests, either because they inevitably involve some touching or movement of the patient, or because they involve the injection of radioactive material (even small amounts, and even through existing intravenous lines), are absolutely prohibited and involve possible murder.

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

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Problems Posed by the Brain Death Standard

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

Professor Steven H. Resnicoff

Steven H. Resnicoff is Professor at DePaul University College of Law and Co-Director of its Center for Jewish Law & Judaic Studies. He is a Yoreh Yoreh, Yadin Yadin ordainee of Rabbi Moshe Feinstein and a graduate of Yale Law School and Princeton College. This essay is adapted from a fully footnoted 1999 paper presented to the Association of Orthodox Jewish Scientists and published in Medicine and Jewish Law, volume 3.

If someone who is brain dead is halachically alive, a matter of significant halachic debate, secular adoption of the brain death standard could, in a number of ways, lead to the murder of Jews and non-Jews. A goses is someone who is dying and is imminently terminal. His life is likened to the flame of a flickering candle. It is forbidden to touch or move such a person for any purpose other than to help the goses, lest such touching or movement extinguish the flame. According to some rabbinic decisors, including R. Shlomo Zalman Auerbach, people on respirators who are believed to be brain dead have the halachic status of safek goses, to whom these prohibitions would apply. Nevertheless, upon a finding of brain death, secular law would allow a hospital certain rights such as to cease treatment or to extract organs. Consequently, the hospital conducts tests to determine whether the patient is or is not brain dead. Such testing is not designed to benefit the patient who is tested, but in order to authorize the giving of his organs—or his hospital bed—to someone else. According to R. Shlomo Zalman Auerbach, these tests, either because they inevitably involve some touching or movement of the patient, or because they involve the injection of radioactive material (even small amounts, and even through existing intravenous lines), are absolutely prohibited and involve possible murder.

Moreover, once a patient is deemed brain dead, secular law may permit doctors to take the patient’s vital organs. If brain death is not halakhic death, and the patient is still alive, the taking of such vital organs would surely kill him. In some jurisdictions, patients might be killed whether or not they, or any of their family members, consent to an organ donation. The law in the District of Columbia as of the writing of this paper, for instance, provides that if a brain dead patient’s family is unavailable and there is no evidence that the patient or his family opposes organ donation, the Chief Medical Officer may authorize donation of the patient’s organs. The rule of presumed consent in several foreign countries is that organs may be extracted from those who are brain dead unless the person has previously made specific objection. A number of U.S. states are considering enactment of the same presumption. Under halacha, a patient’s consent is irrelevant. A person cannot kill someone merely because the victim consents, even if the victim is conscious and gives consent at the time he is killed. How much more so is this true when the victim merely gave consent in advance at a time when he may not have fully appreciated the practical or halakhic consequences of the decision. Moreover, important circumstances or considerations may have subsequently changed. Even though the patient, if conscious, might not now agree to the procedure, he may not have taken the trouble, while conscious, to have legally altered his prior “election.”

In cases in which health care personnel would not extract a brain dead patient’s organs without consent, the person giving consent may well be guilty of violating the biblical prohibition against placing a stumbling block before one’s neighbor (i.e., the health care personnel) known as lifnei iver (Lev. 19:14). If, as a matter of halacha, the brain-death standard involves murder, similar questions regarding the above biblical prohibition, as well as associated rabbinic prohibitions, for the health care personnel themselves, depending on the various roles they play in the organ extraction process. Moreover, another biblical obligation, “Do not stand idly by the blood of your fellow” (Lev. 19:16), generally requires one to save the life of any Jews, including a brain dead patient, if he is still alive as a matter of halacha. Similarly, there is a duty to admonish fellow Jews and to try to prevent them from transgressing Jewish law. There are various ways in which these principles could be triggered when organs are extracted.

According to R. Shlomo Zalman Auerbach, a person who registers to be an organ recipient in Israel may also violate the biblical lifnei iver prohibition. Rav Auerbach believes that the extraction of organs from a brain dead patient violates the prohibition against committing murder. The general rule is that if a wrongdoer would violate halacha even without one’s assistance or participation, one who provides such assistance does not violate lifnei iver, although he might be guilty of a rabbinic infraction, a discussion of which exceeds the scope of this paper. The author known as Mishneh le-Melech, however, argues that if the wrongdoer would not sin without the assistance of some other Jew, then any Jew who so assists the wrongdoer violates lifnei iver. R. Auerbach assumes that the halacha is in accordance with Mishneh le-Melech. Furthermore, R. Auerbach contends that if no Jews would register as organ recipients in Israel, there would be so few potential recipients that it would be unlikely that organs would be extracted from brain dead patients. R. Auerbach argues that Jews who register in Israel as prospective recipients, by swelling the rolls of such recipients, cause the practice of routine organ extraction and violate lifnei iver. Implicit in R. Auerbach’s analysis seems to be the assumption that the culpability for violating lifnei iver by causing the doctor who extracts the organs to commit murder is tantamount to the culpability of murder itself. Otherwise, a patient with no other way to save his life should be able to violate the lifnei iver prohibition, following the general principle that one should violate the law rather than be killed.

Even according to R. Auerbach, if someone in Israel could receive an already extracted organ without having previously registered as a potential recipient, he is permitted to accept the organ. Moreover, R. Auerbach permits a Jew to register as a potential recipient in the United States, because he assumes the organs would be extracted from the donor, whether Jewish or non-Jewish, even if no Jews were to register. The direct donor-to-recipient match used in the organ transplantation process does not necessarily demand a different result. For example, one might argue that, were it not for the possibility of an organ transfer, a patient’s life might be terminated even sooner, by disconnecting him from a respirator immediately upon confirmation of brain death criteria. In any event, most rabbinic authorities permit persons to register as prospective organ recipients both in Israel and in the United States.

In the United States, current technology does not permit someone to effectively donate vital organs after halachic death since the organs deteriorate too quickly. Donating organs before halachic death is proscribed under halacha because it involves killing the donor. Halacha prohibits one from wrongfully taking, or causing others to wrongfully take, such organs from the donor. Nevertheless, merely receiving a vital organ that was wrongfully taken from someone before that person’s halachic death is permitted and, in fact, may be obligatory. Receiving an organ that was already taken from a patient does no further harm to that patient and may save the recipient’s life.

Some advocates argue that there should be a “price” for registering as a potential organ recipient. They suggest that, in distributing organs, preference be given to prospective recipients who have registered as donors, or even that non-donors be effectively excluded from receiving donations. It is contended that it is fair and right to require this so-called “reciprocity”—that one should receive an organ only if one is willing to give one. In my view, however, such an approach is fundamentally unfair and may well be unconstitutional. This so-called reciprocity does not, in fact, ask the same thing from everyone. If a person—such as a religious Jew—believes that brain death is not death, then requiring him to agree to be an organ donor coerces him to consent to being murdered. On the other hand, for someone who believes in brain death, the requirement is infinitely less important. Furthermore, it is halachically improper for a Jew in the United States to register as an organ donor if this consent is necessary for doctors to take his organs, because, by consenting, the donor violates the lifnei iver prohibition. Thus, the purported “reciprocity” rule would mean that a Jew could only obtain the benefit of obtaining an organ donation in exchange for an affirmative abridgement of his religious freedom. [See, generally, Steven H. Resnicoff, “Supplying Human Body Parts – a Jewish Law Perspective,” 55 DePaul Law Review 851 (2006)]

(Next: Rabbi Richard Weiss, MD)

About Steven Resnicoff

117 comments

  1. Gil, is this the promised RSZA piece?

    I’m sorry, but this does not seem to correspond to the very detailed discussions we have already had on RSZA thanks to the research of R. Spira. Net net: it is nowhere near as clear cut as Prof. Resnicoff summarizes above.

  2. At end of paragraph one-there is in fact NO touching of the patient when radioactive material is injected into the intravenous of the patient,to test if there is blood flow to the brain.

  3. daat y: Hence the “or” in that sentence.

  4. “He is a Yoreh Yoreh, Yadin Yadin ordainee of Rabbi Moshe Feinstein”

    It is curious that the words “Rabbi Moshe Feinstein” do not actually appear in the essay itself.

  5. I’m a little confused.
    Having read both essays by R’ Shafran and Prof. Resnicoff, I glean the following:
    1. RSZA would permit accepting an organ removed, if illicitly (bediavad? sort of?) from a BSD patient.
    2. R’ Shafran presents a similar view, stating that simply by being the “next person on the list” absolves the recipient of being a party in any way to the “murder” of the BSD patient.

    Did we not learn from Dr. Stadlan (and others) that the current organ donation system does not function this way?
    That before an organ is taken, a match is sought, without which there would be no incentive to remove it?

    Please correct me if I’m wrong.
    However, if the answer to both my questions is yes, then RSZA’s psak would not seem to apply. In addition, R’ Shafran’s characterization of the process is also problematic, in that it could include the scenario that there is a long list of potential matches, and if the non-BSD-believing-Jew just happens to be the next one on the list, one is still permitted to end the “life” of the BSD patient in order to save that of the Jew waiting in line.

    That RSZA’s permission here may be obviated does not bother me.
    R’ Shafran’s understanding of the halakha disturbs me both as a Jew and as a physician. I suspect it is that same approach that R’ Tendler and others feel is “morally untenable.”

  6. My first thought is that the laws of gosses may not be followed in patients who are dying a ‘cardiac death.’ If you are not sure if the person has lost their heartbeat, or circulation, you shouldn’t be allowed to touch their chest or feel their wrist for a pulse, or feel if the chest is moving up or down. You would also not be allowed to touch them to test for their temperature. Therefore, if we are going to be uniform in applying the laws of gosses to the potentially dead by both brain or cardiac criteria, we cant touch them until we are 100% sure they are dead. And, unless you have some non-contact way of testing to see if they are dead, you cannot be 100% sure they are dead. One may not be able to determine for quite some time. Obviously this is a problem for all potentially dead patients, not just those who may be dead by neurological criteria.

    Secondly, I would submit that determining if someone is alive or dead actually is of benefit to the person. If he is dead, he can be buried. There is also the obligation of ‘lo talin’.(admittedly this is an obligation on the living) Finally, as a matter of practicality, since fluids and other medications are constantly being injected into an IV of a patient in a coma, I am not sure how injecting a tracer is going to be different.

    A seperate but interesting question is if the laws of gosses should be different when a person is on a ventillator. Clearly the act of moving someone who already is intubated on a ventillator will not cause him to stop breathing, since a machine is already breathing for him. In fact, he may not breathe at all on his own to begin with. Therefore, if the only prohibition against moving the patient is that he may stop breathing, and that is not a possibility while he is on a ventillator, the point may be moot.

    Professor/Rabbi Resnicoff has told us his position when he writes: “current technology does not permit someone to effectively donate vital organs after halachic death since the organs deteriorate too quickly.” If one holds that cessation of neurological function is halachic death, then current technology indeed does permit vital organ donation after halachic death.

  7. There were, I believe, supposed to be 8, and now there is a “coming next”. So, how many will there be?

  8. “According to R. Shlomo Zalman Auerbach, these tests, either because they inevitably involve some touching or movement of the patient, or because they involve the injection of radioactive material (even small amounts, and even through existing intravenous lines), are absolutely prohibited and involve possible murder.”

    Back when they had to test whether people were dead before burying them, were they limited to holding a feather or a mirror to their nose, or could they do stuff like pulling their mustaches and so on?

  9. When I saw “Prof….” and “Problems with the Brain Death Standard” I said ‘oh a doctor who has problems with brain death? This will be interesting.” And then I find out that he’s a lawyer. Oh well, next time I suppose.

  10. This is a comment for R Spira (putting it here because I don’t know where else to put it). In a previous comment (which I’ve just spend quite a bit of time searching for, velo matzati) you wrote – I think! – that R Bliech quotes RSZA that a posek who himself holds lechumra on an issur drabbonon must inform the sho’el of the opinion lehakel because of the principle of safek drabbonon lehakel. If I’ve remembered this claim accurately, do you have the reference in RSZA’s writings and the secondary source from R Bleich handy and if you do, can you possibly post it again? Thanks and I hope this request is not too much trouble.

  11. Now that we have reached the end of the series, I would like to express my disappointment that none of the authors who argue that halacha does not recognize brains stem death but considers as alive (or possibly alive) a person who is neurologically dead but who is attached to a ventilator and heart pump addressed the fact that most Jewish funerals are held for people whose bodies have not yet decayed to the point where they cannot be hooked up to such machines.

    In discussions elsewhere, Rabbi Bechoffer asserted that, indeed, according to those posekim, death really means that circulation ceases and we do not choose to restart it artificially. I find this an extraordinary idea that is worthy of greater discussion than seemed possible in that forum. For those who accept brain stem death this is an easy question–there is no requirement to pump blood around a corpse. However, for those who do not, it would seem that the matter of when we are allowed not to connect someone whose circulation and respiration have ceased to support equipment would seem to be of great importance.

  12. >If a person—such as a religious Jew—believes that brain death is not death, then requiring him to agree to be an organ donor coerces him to consent to being murdered

    and allowing him to receive a transplant then means “murdering” someone else in order to harvest their organs.

    What possible hetter can then be for allowing a person to send their doctor to murder a BSD patient and collect their organs?!?!?

  13. What possible hetter can then be for allowing a person to send their doctor to murder a BSD patient and collect their organs?!?!?

    Someone else will kill them for their organs if we don’t, so we might as well benefit from the inevitable murder.

  14. Mike S – hopefully b’n I will soon have something which will clarify that topic.

    Having had some time to think, if we combine the laws of goses with the circulation definition of death, we get the following situation:

    there is a patient who we suspect might be dead(I assume based on lack of movement including movement associated with respiration). It is possible they are dead, but not certain. This would put them in the category of goses. Therefore we are not allowed to touch them to check if they have a pulse/signs of circulation. So, in fact we can’t check for pulse until we are sure they are dead, at which time there shouldn’t be any need to check. Anytime there is uncertainty whether the person is dead or not, they are a goses, and it is forbidden to check. Therefore the practical definition of death, for the vast majority of people(those who do not have monitors previously placed that measure blood pressure) is the cessation of observed respiratory and neurological movement.

  15. Only a law professor could come up with such a tortured conclusion. It reminds of the non-orthodox Jews in Long Branch, NJ who sued to have an eruv removed because it violated their religious freedom to be able to violate Shabbos by carrying if they so choose. PLEASE.

    One is free to practice their religion however they want, but choices of practice DO sometimes have consequences. If one believes in their religion then the consequences of their choices should be worn with pride.

    One of the main reasons I, as a sincerely orthodox Jew, choose to be an organ donor is that I could not abide the hyprocicy invovled were to have have to receive or have to choose for a loved to receive an organ if I believed that doing so would “kill” the donor.

    Lost on all of the author’s legal mumbo jumbo is a simple moral choice. The only thing truly unconstitutional would be if we forced a religious to TAKE an organ believing he’d be killing the donor.

  16. “Someone else will kill them for their organs if we don’t, so we might as well benefit from the inevitable murder.”

    At least be honest. What you’re really saying is: someone else will kill them for their organs if we don’t, so we might as well participate in their murder if we can benefit from it. Sounds a bit different. Really makes us the light unto the nations.

  17. The following news story has made national headlines, and I’m shocked that it hasn’t been picked up by the frum community during this time of intensive debate over BSD: “3-Year-Old’s Rare Condition Changing Medical Science” [http://www.wgrz.com/news/daybreak/article/108827/10/WNY-3-Year-Olds-Rare-Condition-Changing-Medical-Science].

    No…this is NOT a story from the Enquirer.

    Chase Britton is a thriving, happy, 3-year old New Yorker born without a cerebellum. He’s also is missing his pons, the part of the BRAIN STEM that controls basic functions, such as sleeping and BREATHING. The result: “Chase is changing what top doctors and researchers around the world thought they knew about the brain.” Dr. Andre du Plessis (Chief of Fetal and Transitional Medicine at Children’s National Medical Center in Washington, D.C.) opined that this is a case that is challenging fundamental principles. “I think the more we learn about these problems, we find out how little we’ve known all along,” said du Plessis, “and how things are not as clear-cut as we thought.”

    Please, someone explain to the chevra — in light of this revelation (coincidentally?) occurring at this time — why all of the advocates of BSD who decry their critics as being ignorant of advanced scientific knowledge are not, in fact, guilty of tremendous hubris. Chase Britton proves that so many modern, sophisticated neurologists and neurosurgeons who are certain of BSD are in fact only big on ego, while yet mired in a poverty of knowledge. The Ribbono Shel Olam created the most incredibly complex and MYSTERIOUS organ in the human brain…of which modern science appears to know pretty much bupkis. In light of Chase Britton, BSD advocates cannot be trusted and BSD must, at this time, be rejected.

  18. Shua: Thank you for that story. However, science changes based on confirmed and extensive studies, not news reports. There may be more here than a reporter, or even a doctor, initially sees. Experts need time to review this case.

  19. “BSD advocates cannot be trusted and BSD must, at this time, be rejected.”

    I see no moral issues with people who are machmir on both donation and receipt. The RCA Va’ad Halacha, though, on p. 68 of their report implies (through selective quotation) that it is permissible to receive even though it is prohibited to donate” and that is the crux of the firestorm.

    Echoing the passive “have been taken” from p.68; I conclude that “mistakes were made” and the need for clarification by the RCA Va’ad Halacha remains critical to mitigating the mess that has emerged from the publication of their paper.

  20. Shua, even from the little we can glean from the articles on the web, this is basically unrelated to what we’re discussing. Chase is missing specific parts of his brain that general control specific functions, not his entire brain. It’s a well known fact that the brain is very adaptive and parts of the brain can “learn” to take over functions. However, the discussion here is about people who are completely brain dead, where there is no brain function and blood flow the brain has ceased.

    Like Gil said, halacha deals with what we know now, just the halacha in Yoma dealt with what they knew then. Today, we would never leave a person in the rubble on Shabbos based on the tests mentioned. Someday, we may learn something new about the brain that will change our current halachic practice, but that’s what can be great about halacha. It’s adaptive.

    Truth is, I personally believe that this will all become moot in a few years as we develop artificial organs that will function better than transplanted ones.

  21. > “Experts need time to review this case.” (Hirhurim)

    >> Of course they do…but the implications of this case are enormous. It is not merely that brain stem cells are dead — the pons is missing entirely, and yet the child breathes. The cerebellum is missing entirely, and yet the child has cognition and emotions. It is Dr. Du Plessis’ admission — “we find out how little we’ve known all along, and how things are not as clear-cut as we thought” — that should be humbling, to say the least. The bottom line is that BSD is NOT a slam-dunk! Clearly the jury is still out. Until a great deal more research is done we must proceed on the side of extreme caution so as not to become a ‘nation of murderers (G-d forbid) in a rush to be PC and do ‘our share’ to provide organs for donation. The question is: are the adamant pro-BSD advocates willing now to eat humble-pie and back away from their wholly misplaced certitude and moral superiority?

  22. IH: Page 68 is part of the section on RSZA. I don’t see any implication on what is or is not allowed, in general, just on RSZA’a opinion. And even there, the paper is careful to limit itself to a case in which the donor’s life is not taken.

  23. “At least be honest. What you’re really saying is: someone else will kill them for their organs if we don’t, so we might as well participate in their murder if we can benefit from it. Sounds a bit different. Really makes us the light unto the nations.”

    Thank you for the re-phrase. But in essence, that is the argument. I haven’t seen anyone in this Symposium articulate anything better.

  24. I guess i am one of those who shua thinks is big
    on ego. The bottom line is function, not a specific piece of anatomy. The child in the story has the functions that we associate with the pons. From a brain death point of view it doesn’t matter if the pons is where it is supposed to be or not(the cerebellum is mostly for coordination and plenty of people are alive with very damaged cerebellums) When we test for brain death we test for function

    It is well known that there is great neural plasticity in kids, so that different parts of the brain can take over the function of damaged parts. Unfortunately this doesn’t happen in adults much. While the story is quite interesting, i fail to see what impact it has on the current debate. My best guess as to what happened to the child is that he had a stroke in utero. The cerebellum, pons, and some parts of the brain that allow for vision are all supplied by the same artery. Cessation of blood flow to that artery could cause this. What is fascinating is that the function of the pons would be picked up by some different neural tissue, and that other parts that could have been affected by the same artery were not. It would be good to have more info, and hopefully more will be published so that this isn’t just a media story. Of course there is the possibility that the problem is not as dramatic as portrayed, and it is a media creation. Unfortunately this is not uncommon.

  25. MICHAEL:

    “the discussion here is about people who are completely brain dead”

    i thought the discussion is about brain stem death?

    SKEPTIC:

    “Someone else will kill them for their organs if we don’t, so we might as well benefit from the inevitable murder.”

    i can understand benefiting from a murder that has been committed, but an inevitable murder? can i rob a bank if i know that someone else is planning on robbing it? i might as well benefit from an inevtiable robbery?

  26. > “Like Gil said, halacha deals with what we know now…” (Michael)

    >> Yes indeed, but what Dr. DuPlessis concludes from the Chase Britton case is that what we know now is not only know so little, but the little that we think we know may be totally in error. Is this not enough, perhaps, to challenge the entire organ donation concept l’chatchila as it relates to any speculative definitions of “death?” And given the revelation of our contemporary ignorance, mustn’t BSD be (at lest for now) be treated as suspect?

  27. “Page 68 is part of the section on RSZA. I don’t see any implication on what is or is not allowed, in general, just on RSZA’a opinion. And even there, the paper is careful to limit itself to a case in which the donor’s life is not taken.”

    The text is self-evident:

    “In a December 1991 letter to Rav Feivel Cohen, Rav Auerbach wrote that despite the fact that he cannot support ’brain death’ to permit organ donations, nevertheless, it is permitted to receive organs that have been taken from such patients.”

    Why was it included if the topic of receipt of BSD organs is extraneous to the paper? AFAIK it is the only such mention of the topic.

    Many people have independently found this aspect of the paper troubling. The need for clarification by the RCA Va’ad Halacha remains critical to mitigate the mess that has emerged from the publication of their paper.

  28. “Thank you for the re-phrase. But in essence, that is the argument. I haven’t seen anyone in this Symposium articulate anything better.”

    I agree. But that’s the trouble; nothing better has been articulated, and the blase attitude about participating in murder is not comforting to say the elast.

  29. Abba, the term “brain stem death” came to be used to replace the more generic “brain death”. “Brain death” was often used to describe people who were in a vegetative state, something that nobody would consider to be halachicly dead. Brain stem death includes the entire brain which again has nothing to do with the story Shua mentions.

  30. >”I guess i am one of those who Shua thinks is big on ego.” (Dr. Stadlan)

    >> I wish you would have put a smiley face after that comment. But, no…I was only thinking about the class of relevant medical personnel and not about any one individual. But…as they say…if the shoe fits? 😉

    In any event, I do appreciate your explication of a theory as to what occurred in the Chase Britton case…but I do hope you agree that a great deal of study needs to be done. I do not know if you agree with Dr. DuPlessis conclusion: concerning the human brain, the only thing medical science should know is just how little it knows!

  31. There still seems to be denial on the part of those defending the RCA Va’ad Halacha paper, so I again want to offer a helicoptor synopsis in the spirit of having an organized, focused and coherent discussion, “lowering the temperature of debate so we can remain a united community even while disagreeing”.

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

  32. Well of those 3, this Symposium has directly addressed only the first, whereas most of the comments (and thus interest?) have been about the second and third.

  33. With great respect to the doctor, we do know a lot about the brain. I agree that there is much that we don’t know, but in my humble, low ego opinion, we know enough to identify death by neurological criteria based on the halachic opinions that have been written 

    I had to search my phone for the icons. By the way, the from what I saw, the doctor quoted is not a neurological specialist.

  34. This is an extraordinarily poorly reasoned piece, astonishing in someone of who has negotiated such an educational orbit. I don’t think most people have great intellectual problems with BSD vs rejection of BSD, especially as we have become educated to the fact of death as a process. We all recognize the existence of different but defensible positions. But the crux of the issue here is precisely the connectivity between donor and recipient – the donor-to-recipient-match – and the halokhic, and more critically moral, acrobatics to forbid the one as murder while simultaneously allowing the benefit of the crime. So to airily dismiss the issue in an off-handed hypothethical – “For example, one might argue that, were it not for the possibility of an organ transfer, a patient’s life might be terminated even sooner, by disconnecting him from a respirator immediately upon confirmation of brain death criteria..”. Why yes, one might argue that. And one might equally well argue the opposite, that we now choose to murder him at a specific time determined by the particular need of the intended beneficiary, at least we would so argue if prof resnicoff’s hypothetical scenario reflects a potential reality, which I don’t actually know.

  35. To R.Gil,10:39 p.m.
    RSZA stated the Halacha of not touching a gosses or safek gosses.
    That is all he stated.By injecting through the intravenous ,one is not touching the gosses and therefor should be permitted.Radioactive test materials do not kill but in this case test if blood is going to the brain..If they did kill anyone for example having a bone scan or cardiac thallium stress testing would have died from the testing.

  36. daat y: By injecting through the intravenous ,one is not touching the gosses and therefor should be permitted.

    I seem to recall him specifically referring to injections — זריקות.

  37. Legal fictions aside, it amazes me that people can even entertain the notion that “merely receiving a vital organ that was wrongfully taken from someone before that person’s halachic death is permitted and, in fact, may be obligatory,” but it is forbidden to provide organs.

    While a “reciprocity” requirement may or may not be unconstitutional, antisemitic speech is not unconstitutional, and life in the 21st Century requires reciprocity.

  38. shua cohen, we know a great deal when we declare someone dead; according to experts a properly administered test for BSD and the cessation of the ability to breathe has NEVER been found to be incorrect. regardless of whether BSD/the inability to breathe defines halakhio death, it does talk to the current state of medical knowledge. the gemara talks about checking the cemetary. given what medicine now knows, i have not seen that practiced. clearly there is alot we do not know, but chazal functioned with much, much less medical knowledge. poskim today are required to do the same.

  39. just another yid

    To Shua Cohen on February 14, 2011 at 10:20 am:

    Perhaps one of the Dr’s reading the blog can correct me, but it seems based upon various medical website’s that the Pons are involved in sensory analysis and motor control, NOT respiration. It is the Medulla that is involved with respiration.

  40. To “Just another Yid:”

    I’m sort of perplexed since googling “pons function” will result in innumerable hits, like the following:

    “There are two centers in the pons that affect respiration.
    * The apneustic center in the lower pons that seems to stimulate and prolongs inspiration thereby controlling the intensity of breathing.
    * The pneumotaxic center located in the upper pons that inhibits inspiration. It decreases the depth and frequency of breaths.

  41. Dr. Stadlan wrote: “…different parts of the brain can take over the function of damaged parts. Unfortunately this doesn’t happen in adults much.”

    Dr. Bill wrote: “…according to experts a properly administered test for BSD and the cessation of the ability to breathe has NEVER been found to be incorrect.”

    Clearly, in the case of Chase Britton, respiration occurs without the presence of the pons, indicating that another part of his brain has had to have taken over that function. Granted that such “neural plasticity” is not COMMON in adults. But, can we now say with any degree of certainty that it’s not possible? Perhaps over a lesser or greater amount of time, while assisted by a respirator, the brain will find a way to take over the function of a “dead” pons (as it has effectively done in young Chase), or any other part of a “dead” brain stem. If so, any properly administered test becomes meaningless at the time it’s given, IF the brain can learn to compensate over time.

    As a non-medical person, I’m just speculating here, given the proposition that according to current medical knowledge of the brain, Chase Britton should at best be a vegetable, if not dead.

  42. just another yid

    To: Shua Cohen on February 14, 2011 at 2:24 pm

    According to the encyclopedia Brittanica:
    “pons, portion of the brain lying above the medulla oblongata and below the cerebellum and the cavity of the fourth ventricle. The pons is a broad, horseshoe-shaped mass of transverse nerve fibres that connect the medulla with the cerebellum. It is also the point of origin or termination for four of the cranial nerves that transfer sensory information and motor impulses to and from the facial region and the brain. The pons also serves as a pathway for nerve fibres connecting the cerebral cortex with the cerebellum.”

    It does not say anything about respiration.

    By the way, I did the the Google search using the search parameter you suggested “pons function.”

    The first result says Pons are involved with sensory analysis and motor control.

    The second result is a Wiki article , which does mention respiration – “The pons contains nuclei that relay signals from the forebrain to the cerebellum, along with nuclei that deal primarily with sleep, respiration, swallowing, bladder control, hearing, equilibrium, taste, eye movement, facial expressions, facial sensation, and posture,” but based upon the other articles, I am not sure if this is correct. Hence, my request for a Dr. to explain more clearly.

    The third result says “The main function of pons is to basically act as a highway for relay of many signals to and from the cerebrum and the cerebellum….The primary function of pons is also to act as a motor relay center…”

    The fourth result says: “The pons is involved in several functions of the body including: Arousal, Controlling Autonomic Functions, Relaying Sensory Information Between the Cerebrum and Cerebellum and Sleep”

  43. shua cohen, did anyone declare chase Britton brain dead based based on an established protocol? i therefore fail to see the relevance; there is much science does not know. (a more relevant issue would be aborting a fetus with conditions similar to Chase were that known early in the pregnancy?) BTW, many comments on blogs can also not be explained by any known logic; they still manage to appear. as dr. stadlan explained, the protocols test function/what not how or why. i would argue we do not absolutely know why certain conditions are irreversible; but we always act on what we know.

  44. Just another Yid:

    Okay…let’s be even more specific. Googling “pons” + “respiration” results in 516,000 hits connecting the two. Again, as an example:

    “Impulses from a breathing center in the pons turn off the inspiratory center before the lungs get too full. A second breathing center in the pons stimulates the inspiratory center to prolong inhaling when needed.”

    Methinks you are overly resistant to this reality.

    R

  45. Shua, Yes, we can say in the case of brain death that we are certain it won’t happen. Another part of the brain will NOT take over respiratory function, at least in my opinion. 

  46. > “I would argue we do not absolutely know why certain conditions are irreversible; but we always act on what we know.” (Dr. Bill)

    >> Alas we are arguing in circles…the Chase Britton case demonstrates that what we THINK we know is often in error (and history is replete with examples of scientific fallibility, especially in the knowledge and practice of medicine), or is at best a safek…and we know how halacha treats a safek when it comes to pikuach nefesh. As I believe R. Shapira has stated over and over again, many (most?) poskim hold a BSD patient a safek mais, and not one from whom we should start extracting organs — quick, before we discover the true resilience of the brain and the reversibility of what we’ve declared to be “irreversible”!

  47. I find it very interesting that both this article and the one by R. Shafran are based on RSZA’s opinion, but fail to mention the fact that RSZA made a clear distinction between Israel and the US, i.e. between if the doctor & BSD-patient are jews or goyim:
    בחוץ-לארץ, הואיל והרופאים והחולים רובם ככולם נוכרים, שמתנהגים על פי המדע הרפואי והערכאות שלהם – מותר ליהודי להיות מושתל, ולקבל איברים להצלת נפשו, אפילו אם ידוע שתורם האיברים הוא יהודי.
    http://www.daat.ac.il/daat/kitveyet/assia/kviat-2.htm

    Why don’t R. Shafran and Prof. Resnikoff mention this important detail?

  48. just another yid

    To Shua Cohen on February 14, 2011 at 3:08 pm

    I am unable to find scholarly / legitimate sites stating that PONS have anything to do with respiration, rather it is the Medulla which controls respiration.

    Note, the Brain Stem has three components – midbrain, pons, and medulla. As such, the question should be – when BSD is determined, does this mean the medulla has stopped functioning? I hope a Dr. can answer this.

    See here from the World Federation of Societies of Anaesthesiologists – http://totw.anaesthesiologists.org/2008/10/14/brainstem-death/

    “The brainstem is the physical link between the cerebral cortex and the spinal cord and it consists of the midbrain, the pons and the medulla. Most of the cranial nerve nuclei are contained here…the pons contains the reticular activating system that is vital for cortical arousal and conscious awareness, whilst the medulla contains centres that control cardio-respiratory function.”

  49. One comment, and I forgot who made it, got me thinking, and I’d like to take it a couple steps further.

    A Jew is on the fence, re: BSD vs. Cardio-Pulmonary Death. But, the Jew does recognize that the nuclide test has a perfect record in diagnosing irreverable cessation of brain stem activity (not sure if there are any other perfect tests), and according to some serious poskim, including Rav Moshe Tendler, BSD means halachic death.

    Without deciding whether to accept BSD as halachic death, the Jew thinks, as per the comment, I, voluntarily, want to donate my organs to another human being if I am ever diagnosed with BSD, without regard to whether BSD actually constitutes halachic death. So the Jew contacts Robbie Berman, and he inserts a HODS card in his wallet (and why is it only rabbis who get their pictures on the web site; baal ha’battim are gornish? 🙂 )

    What impediment, if any, in halacha is there for the Jew to say and do such a thing? My hunch is, not any. To the contrary, it can be a kiddush Hashem for one Jew to sacrifice his life for another.

    Thoughts?

  50. shua cohen, we know we cannot do anything nor has any such patient ever recovered on their own. we know “what”; we may not know “why.” chazal declared shabbat over because of “what” they observed; some/many did not know the “why” correctly. you keep talking about “why” as if it mattered; halakha does not always work based on understanding the “why”, only the “what” that is before us.

  51. Shua, also as a non-medical person I would say to you that you’re being obstinate. Again, there is no comparison to Chase’s case and what we’re talking about here. Chase has a brain where parts have been damaged and others have taken over for the damaged parts. We’re talking about a person with ZERO brain function.

    Bring us an article of someone who was decapitated who’s elbow has taken over control of his brain stem functions and then you’ll have something.

  52. “Someone else will kill them for their organs if we don’t, so we might as well benefit from the inevitable murder”

    That logic would permit receiving the organs from the Chinese death row inmates.

  53. Charlie: I believe I heard Rav Schachter say on a YUTorah audio that accepting Chinese organs is technically permissible but we might forbid it for public policy reasons.

  54. Then, Gil, the same should logic should apply no matter what the source.

  55. IH: I was obviously not quoting him verbatim.

    Michael: Isn’t that, in and of itself, a public policy decision?

  56. Now you lost me.

    At the very least, as a “public policy decision”, no orthodox Jew should take an organ for himself or his family that he believes necessitates “murdering” the donor even though it might be “technically” ok to do so.

  57. “Charlie: I believe I heard Rav Schachter say on a YUTorah audio that accepting Chinese organs is technically permissible but we might forbid it for public policy reasons.”

    I find this a pretty awful statement unless he equates morality with public policy. I therefore suggest that you make sure about what he actually said and then tell us. I hope it wasn’t this.

  58. “I believe I heard Rav Schachter say on a YUTorah audio that accepting Chinese organs is technically permissible but we might forbid it for public policy reasons.”

    Now we are finally making progress. It’s good to see clearly where everyone stands.

  59. One comment, and I forgot who made it, got me thinking, and I’d like to take it a couple steps further.

    A Jew is on the fence, re: BSD vs. Cardio-Pulmonary Death (CPD). But, the Jew does recognize that the nuclide test has a perfect record in diagnosing irreverable cessation of brain stem activity (not sure if there are any other perfect tests), and according to some serious poskim, including Rav Moshe Tendler, BSD means halachic death.

    Without deciding whether to accept BSD as halachic death, the Jew thinks, as per the comment, I, voluntarily, want to donate my organs to another human being if I am ever diagnosed with BSD, without regard to whether BSD actually constitutes halachic death. So the Jew contacts Robbie Berman, and he inserts a HODS card in his wallet (and why is it only rabbis who get their pictures on the web site; baal ha’battim are gornisht? 🙂 )

    What impediment, if any, in halacha is there for the Jew to do such a thing? My hunch is, not any. To the contrary, it can be a kiddush Hashem for one Jew to sacrifice his life for another.

    I would really like to hear the thoughts of some of the All-Star BSD/CPD team members here.

  60. R’ IH and R’ Sed,
    Thank you for your kind words (at 10:03 p.m. and 5:26 a.m., respectively). The requested reference from RSZA is available at
    http://www.hebrewbooks.org/pdfpager.aspx?req=15096&st=&pgnum=302

    Regarding this, RJDB writes as follows (Contemporary Halakhic Problems V, p. xiv):

    “Although the matter is not quoted by any of the poskim it seems to me that a person intellectually convinced of the correctness of his own position may not himself inform an interlocutor that another more highly regarded authority if of an opposite view, but must refer the individual to that authority directly. There is a talmudic controversy with regard to whether the taste of the gid ha-nasheh is sufficiently pungent so that, if cooked with other food, it renders such food non-kosher. R. Ammi regarded such food to be prohibited. Nevertheless, the Gemara, Hullin 99b, reports that when a person brought such a matter before R. Ammi he would refer the person to R. Yitzchak ben Halov who would rule permissively. Quite obviously, R. Ammi regarded R. Yitzchak ben Halov as at least his equal and as a person whose opinion might be relied upon. Why did he not simply inform the interlocutor that, although in his own opinion the food is not permissible, the interlocutor might in good conscience rely upon the lenient view of R. Yitzchak ben Halov?

    “The talmudic narrative seems to reflect two distinct canons of psak: (1) One decisor may refer with equanimity to a person whose antithetical view is within the parameters of elu ve-elu divrei E-lokim hayyim. (2) The same decisor dare not himself utter the word “muttar” in the name of another person unless he believes that to be true. Perhaps it is the phrase “zekenekha ve-yomru lakh” (Deut. 32:7) that requires the zaken to announce his own opinion rather than the opinion of another. Cf., however, R. Shlomoh Zalman Auerbach, Minhat Shelomoh, I, 44, who, while not directly contradicting the foregoing, opines that in cases of controversy regarding a matter of rabbinic prohibition, the posek must inform the interlocutor of the dispute and of the principle that the permissive view may be relied upon. If that is correct, why then, according to the authorities who maintain that the prohibition of ta’am ke-ikkar is rabbinic in nature, did R. Ammi not himself inform the people in question of the opinion of R. Yitzchak ben Halov and advise them that safek de-rabbanan le-kula?

    “The same point seems to be reflected in the narrative recorded in Hullin 48a regarding the kashrut of an animal whose lungs had areas filled with pus. The Gemara relates that when a case of that nature came before R. Yohanan he would send it to R. Judah ben Simeon who would rule that it was permitted. Rashi comments that R. Yohanan himself maintained that the animal was not kosher but declined to forbid its use because he was not in possession of a received tradition to that effect. But, if R. Judah ben Simeon’s opinion could be relied upon why did R. Yohanan himself not make that information available?

    “More cryptic but equally germane is the narrative recorded by the Gemara, Hullin 44b. An animal with a severed trachea was brought before Rav. Rav proceeded to examine the outer circumference of the trachea with a view to pronouncing the animal non-kosher if the greater part of the outer circumference had not remained intact. R. Kahana and R. Assi objected: “But have you not taught us, Master, to examine it on the basis of the greater part of the hollow [i.e., the inner circumference]?” Thereupon, Rav sent the matter to Rabbah the son of Bar Hana who examined the inner part of the circumference and, finding the greater portion to be intact, ruled the animal to be kosher. In this case, Rav was apparently prepared to ruled in accordance with the stricter view but, when reminded by his students of his own earlier held permissive view, refused to state that the lenient view might be relied upon and instead put the person consulting him to the trouble of himself seeking out the scholar who would rule permissively.”

  61. i am amazed, by what is quoted from r. shachter. if something is technically permissable and ASSUMING the person will die absent the organ, we have a case of choosing death for a public policy reason? sounds a tad convoluted.

    if it is considered murder, then i understand not taking an organ. OTOH, if in fact we take an organ from a chinese prison whenever the situation is life-threatening, then we are in a yet worse situation than the one Rabbi Tendler and others bemoan.

    even following the rather tenuous logic of CR sacks and prof. resnicoff, surely they would not apply that to an organ producing enterprise?

  62. Umm it would be suicide. Suicide is assur. Saving someone’s life is not doheh suicide. Really not sure what you’re getting at.

  63. Jon_Brooklyn: Yes, that’s my question, which I should have articulated better. If the BSD = halachic death poskim are wrong, is it prohibited suicide for the Jew on the fence about BSD = halachic death to direct, in his health care proxy, that his organs may be donated if he is diagnosed by the nuclide test with irreversible cessation of brain stem activity?

    My non-halachic feeling is, No. Is it prohibited suicide to be a war hero? I recall some recent episodes. An Israeli hesder student blocked a door with his body, absorbing the terrorists’ bullets, and ultimately dying, enabling his peers to escape. An Israeli college professor in Virginia also blocked a door with his body, absorbing bullets fired by a madman, and ultimately dying, while his students escaped by jumping out a second floor window. No rabbi would ever classify these war heroes as suicides.

  64. In addition to Reb Jon, I would like to hear from the other Rebs on this site.

  65. I would like to offer a small correction to Elliot Pasik’s hypothetical. The diagnosis of irreversible cessation of brainstem activity requires a number of parts: 1. determination by testing(clinical examination including apnea testing) that the brain stem is actually not functioning 2. ruling out any possible conditions that can mimic the findings in number 1 3. imaging evidence such as CT or MRI that are consistent with massive brain damage. Then, and only then, is a blood flow study such as nuclear medicine imaging confirmatory that the brainstem has irreversibly ceased to function. By the way, other blood flow studies such as CT angiography are equally accurate. (There have been article written that claim in fact that the confirmatory tests are actually not necessary as a general rule, only in specific circumstances). The bottom line from the point of view of this discussion is that through testing, it can be assured that the brainstem has irreversibly ceased to function.

  66. Elliot Pasik,
    Please see Assia,2008,volume 21,3-4,page 108 where there is a discussion by Harav,Hagaon Naftai Bar-Ilan,(great grandson of the Netziv) that if someone is considered a “treifa” and previous to this he gave rermission to donate his heart ,under certain circumstances he can donate under brain and brainstem death criteria even to those who do not follow BD.

  67. while i appreciate the arguments about heroic suicide, one can easily differentiate based on level of certainty, the person himself making the decision, and a number of other arguments. i would not assume that one can voluntarily terminate their life to save another. but in the case at hand, according to those who uphold BSD, life is over; all that is left is the mitzvah to save another.

  68. thank you r spira (I am not a rabbi). I really appreciate your going to the trouble of getting the references and typing all that out for me! Much appreciated.

  69. In Sefer ASSIA 9,p.367 Rabbi Dick also discussed this issue with some similar conclusions,under certain circumstances.

  70. response to Shua Cohen- I am sorry to say but you are missing the point completely. In CHILDREN, different parts of the brain can sometimes take over for other damaged ones. However, it requires that there be UNDAMAGED brain present. This does not happen to any significant extent in adults.

    In the situation you described, assuming it is accurate, the function of the pons has been assumed by some other part of the brain. If we thought that chas v’shalom the patient was brain dead, we would test for the function of the pons. The tests depend on FUNCTION, not at looking at a MRI scan or CT to see if a particular part of the brain is there or not. It doesn’t matter what part of the brain is performing the part of the pons. Either the function is there or not. In the situation of such overwhelming brain injury that there is no brain stem function, it is not reasonable to think that another part of the brain is all of a sudden going to take over the function of the horribly damaged brainstem. There isn’t a significant amount of healthy brain, and THIS sort of platicity doesn’t happen in adults, and I doubt that it would happen after a child was born. So for all these reasons, the case that has been brought is interesting, but has no impact whatsoever on the topic of brain death. platitudes about how much we know or dont know are good sound bites, but the bottom line is we know enough to realize that case has zero implications on the topic

  71. Daat y, responses appreciated. A health care proxy explicitly declaring the declarant’s acceptance to donate organs, upon the diagnosis of BSD, may be the way to go, for the altruistic Jew who, literally, wants to die in a blaze of glory. That brings us back to Rabbi Moshe Tendler’s health care proxy, originally adopted by the RCA, and long available on its web site. That health care proxy, paralleled by Dr. Emanuel’s Harvard proxy, listed, item-by-item, the health care treatments to be accepted or rejected. I haven’t seen it in a while, but if the acceptance of BSD and organ donation aren’t there, it can easily be added. The RCA/R’ Tendler proxy was, however, replaced by the Agudath Israel halachic living will, renamed by the RCA as “Halachic Health Care Proxy”. You pick a rabbi to make your health care decisions. I submit that the original R Tendler/Emmanuel style proxy was more in keeping with the overall hashkafa of the RCA/modern, centrist orthodoxy; while the Aguda form is authoritarian. This switch deserves a second look.

  72. >Charlie: I believe I heard Rav Schachter say on a YUTorah audio that accepting Chinese organs is technically permissible but we might forbid it for public policy reasons.

    If he actually said this, then I just lost most of the respect I used to have for R’ Schachter.

  73. Lawrence Kaplan

    Sed: Welcome. You are obviously new here. My former student R. Spira, in his truly inimitable fashion, refers to everyone as “R.”

  74. Shachar Ha'amim

    I agree with Michael – this is avery tortured piece and confuses many issues.

    For example – yes, different jurisdictions have different rules and one must be aware of them. But it is relly very tortured to suggest that somehow the decision to donate is abrogated b/c of changes in circumstances.
    Would the esteemed professor be ready to challenge the validity of a duly signed and witnessed will signed 20 years ago b/c the testator “merely gave consent [to the grant in the will] in advance at a time when he may not have fully appreciated the practical or halakhic consequences of the decision. Moreover, important circumstances or considerations may have subsequently changed. Even though the [testator], if [alive], might not now agree to the [grant], he may not have taken the trouble, while [alive], to have legally altered his prior “election.”?? Really, as a legal professional I’m sure he would suggest to 999 out of 1,000 potential clients that they would be absolutely delusional to try and challenge a will on such grounds in most jurisdictions!!

    Or the idea that somehow it is “lifnei ivur” for health care professionals to implement the wishes of dead patients who signed donor cards. Like I pointed out on Rabbi Broyde’s piece, the issue here is whether one is allowed to sacrifice one’s life to save the life (or lives) of another. Even if one suggest that BSD is not halachically death, 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 machloket rishonim 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
    In theory one could discuss organ donor cards even in a scenario where everyone considers 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? how does all of this become lifnei iver??

    And same response to the R. Safran piece regarding the discrimination “issue”. The arguments against not allowing non-donors to receive, and the claims that it might be unjust to grant precedence to donors are simply specious. they have no basis. there is no way to categorize what is clearly an incentive system as “punishment”. Would the esteemed professor suggest that someone who is religiously opposed to insurance schemes also be treated equally when it comes to transplants even though s/he has no insurance to cover such transplants and the peripheral costs (e.g. flights, transport, etc.)? Indeed we know that this is not the case – if you don’t have health insurance in most cases you don’t get a transplant. Is this also unconstiutional?

    there are more problematic arguments in this piece, but I’ve gone on long enough…

  75. Shachar Ha'amim

    I have to make one more point – the first part of the article doesn’t connect with the second part. The other goes through a whole long reasoned argument about why taking organs from BSD is tantamount to murder and then starts to argue about why receiving is permitted. These two don’t conne t. I re-read it and now I understand – the first part is really about why one is not allowed to donate. I.e. one can’t donate, b/c harvesting organs is murder. But if the murder is done already then one can receive.
    But like I pointed out the issue of donating has NOTHING to do with murder – it has to do with the permissibility of suicide to save another’s life.
    This is where the “lifnei iver” issue comes from. The esteemed professor needs to find a lever with which to bring the issue from suicide to save a life into the realm of “murder” – i.e. causing someone else to commit murder.
    I have to say that this is really twisted reasoning – to bring all the reasons that are really reasons why one can’t be a RECIPIENT and then change it them to reasons why one can’t be a DONOR, and then IMMEDIATELY follow through to why one then can really indeed be a RECIPIENT, nay even have constitutional RIGHTS to be a recipient. This is way out there folks!!

  76. Shachar Ha'amim

    Elliot Pasik and jon-brooklyn – on the issue of suicide to save the life of another person read chapter 7 of this book by Prof. Nahum Rakover

    http://www.daat.ac.il/daat/vl/rakmesirut/rakmesirut01.pdf

    it is certainly not as b&w as jon_brooklyn makes it out to be.
    or on the flip side of how he put it – there is a mahlokes about what exactly the nature of the prohibition of suicide is. according to some rishonim and poskim saving a life is docheh the prohibition for suicide (whatever the prohibiton may be). Even according to those hold hold that suicide is a capital crime, the saving of a life may be docheh suicide. and even those who do not hold like this, might hold that saving more than one life is docheh the prohibition of suicide

    which is why – amongst other reaons – the folks in Assia (the names thnat were mentioned are claerly in the Rav AY Kook/Mercaz HaRav circles) suggest that one can take the beating heart of a “treifa” who agreed to donate his organs – EVEN IF THEY DON’T AGREE WITH BSD AS THE STANDARD OF DEATH.

  77. Perhaps a just resolution to the ” don’t give/take”discussion would be when a would-be non-BSD receipient receives the phone call that a donor is available, he should ask are there any other organs being transplanted. If yes(as in 85-90% of cases),he should accept if not he should decline .RCA and similar organizations could suggest this.

  78. c y
    Two problems with this:
    1) The call goes to the doctor, not the patient. The doctor then calls the patient, and would not, in general, know anything about the other organs.
    2) Even the person making the call to the recipient’s surgeon mihgt not be im a position to know about the other organs. More importantly, that information is dynamic, so that the answer they give might not ultimately be correct, leading either to unnecessary refusal or “illegitmate” accpetance of a transplant

  79. “Perhaps a just resolution to the ‘don’t give/take’ discussion would be” if you believe it’s murder don’t be participate in any way. That is, i think, our usual reaxtion to participating in murder.

  80. Shachar Ha'amim

    c y – that doesn’t work. You are extrapolating to the case of being a recipient what I said are the issues with being a donor. No one is ripping any hearts out here – I am suggesting that one is allowed to donate and the issue of donating isn’t murder but rather suicide to save other lives. One can certainly qualify their donor card/instructions by stating that they will only donate if multiple lives might be saved. I would even suggest that in such case they check of the “family rabbi consult” provision on the Israeli donor card and they will still get the benefit of being advanced on the waiting list and the family rabbi can indicate to the doctors that the patient is willing to donate if there are multiple recipients.

    My argument is that the esteemed professor and the aguda spokesman extrapolate the reasons that should be argued for not being a recipient to not being a donor, and then argue that it is still OK to be a recipient. As Joseph Kaplan put it – murder is murder.

  81. Doron Beckerman

    I don’t know for sure what Rav Schachter meant regarding the Chinese organs, but it may very well be something along the lines of the Chazon Ish (Moed 38:4) regarding use of electricity generated by Jews via Chilul Shabbos –

    “… if this is done in the electric power station on Shabbos by a Jew who does not observe Shabbos, one may not derive benefit from it; and even if it is in a manner that there is a Hetter to use it based on [narrow] law, one may not use it because using it entails the prohibition of a Chillul Hashen, because he does not care about the honor of heaven, since it is for public use, and the one working there on Shabbos is doing so rebelliously Rachmana Litzlan, and one who derives benefit from his action testifies, Chas Veshalom, that his heart does not feel pain over Chillul Shabbos, and may it be [Hashem’s] will that they do complete Teshuvah quickly.”

    [This was the gist of the proclamation of Rav Elyashiv on the matter of the Chinese organs, although, IIRC, he did not cite the Chazon Ish].

  82. Elsewhere, Reb Spira translated the words of Rav Moshe Sternbuch, as follows, which do appear to support the argument that a Jew can, in advance, declare his willingness to donate his organs if he is correctly diagnosed as BSD:

    “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.”

    One possible, tangible benefit of this symposium would be a further RCA halachic analysis of this particular issue of permitting “heroic suicide”. If permissible, the RCA Health Care Proxy can be modified accordingly. The Jew need not decide whether BSD = halachic death.

  83. http://www.yutorah.org/lectures/lecture.cfm/732611/Rabbi_Hershel_Schachter/Medical_Ethics_-_Organ_Transplantation_#

    “If we should assume that the physician is in violation of retzicha to kill the brain dead patient by taking out his organs, so he violated retzicha when he did that, is there anything wrong with the patient receiving this organ? So Rabbi Tendler built up a whole argument which has merit that one is not permitted to save his life at the expense of someone else’s life. There seem to be sources in the gemara that might indicate that, but that’s not the generally accepted view. Most of the rabbonim will say that you’re not permitted to kill the patient, but once the doctors are going to kill the patient anyway, and you have a whole list of people who are interested in using his heart, his organs, whatever, you can put your name on the list as a recipient, if they’re anyway going to kill him. There was merit to Rabbi Tendler’s argument; there are sources that seem to indicate like that; that if that is an act of murder, then you’re not allowed to save your life at the other fellow’s expense, but bottom line we don’t pasken like that. It is assumed that it is permissible.”

    “Many argue the point that if it’ll become public knowledge that Orthodox Jews don’t permit donating organs, then the world will not give us organs, when we’ll be dying they won’t give us organs. Look, we’re not allowed to permit retzicha in order to save people’s lives; if they won’t give us organs, they won’t give us organs. What can we do? If you’re not allowed to, you’re not allowed to.”

    “Q: The Chinese recently have been shown to be executing prisoners and then using the organs for transplant; so in that case would they be acceptable? A: Strictly speaking they are acceptable. Look, if it saves someone’s life, you can do it, even if they’re doing something wrong by killing their prisoners, but still: once you have an organ. The question is, maybe as a matter of public policy, maybe we shouldn’t support their atrocities; the world has to decide whether yes or no”

  84. R’ Elliott Pasik and R’ Shachar Ha’amim,

    Thank you and yi’yasher kochakhem for raising the important question of whether a person may volunteer to sacrifice his life in order to save others, and therefore whether one may sign an organ donor card. Although, as you indicate, some distinguished scholars (such as R. Shmuel Eliyahu in his HODS responsum at http://www.hods.org/pdf/ShmuelEliyahu.pdf and, as R’ Aiwac has reported, R. Michael Avraham in an article in Techumin 29) do permit this course of action, RSZA disagrees. Here is what RSZA rules:

    “It is true that a safek chai is overridden for the sake of a vadai chai, and likewise a treifah person is overridden for the sake of a normal person, but this is only when there is a link between the two, and they are dependent upon one another, even if there is no law of rodef. And likewise in a situation where if they do not kill the safek or the treifah they will both die, like in the episode of Ula in Tractate Nedarim 22a it is permissible to hasten a dying patient’s death in order to save oneself from being killed. However, one may not actively kill a treifah or a safek gossess for the purpose of prolonging the life of another person, just as it is unthinkable that a patient be permitted to prolong his life by killing a treifah, even according to those who permit a person to save his life at someone else’s financial expense.

    Therefore even if the patient himself gave permission and instructed in his life to remove from him his organs while he is safek chai in order to save others, we do not listen to him, for even though it is permitted for a person to endanger himself in order to rescue one who is drowning in the sea, still it seems to me that a perosn is not an owner over his life. And even according to the Sefer Chassidim [no. 698] who writes that if enemies come to kill one of two people [one of whom is a talmid chakham], that it is a mitzvah for a normal person to ask that they should kill him and not the talmid chakham, that’s when they are both in the same danger and he [the normal person] is giving his life for him [the talmid chakham], but not when one nonchalantly abandons his life [S. Spira’s liberal translation of “mafkir stam et chayav”] for every human being – where it could be even the Sefer Chassidim will not permit it, and especially since in our case it is possible that if we could ask him [the organ donor] at the last moment [when he is brain dead, and right before his organs are harvested] it could be that he would retract his previous words and he would not want it.”

    (Shulchan Shelomoh, Erkei Refu’ah II, p. 43)

    And then another responsum by RSZA (on p. 44 of the same volume), explaining why we cannot rely on Nedarim 22a to justify organ donation:

    “The episode of Ulla is no proof at all, because Ulla saved his life from a gangster who was standing next to him. And if Ulla had not told the gangster ‘go finish the killing more quickly’, the gangster would have killed Ulla, and therefore he [Ulla] was considered anoose (under force majeure) over this. By contradistinction, [if one registers for an organ] everything is being done with voluntary will [of the recipient]. This is comparable to that which Rambam rules in Hilkhot Yesodei HaTorah ch. 5 that if one transgresses a “yehareg vi’al ya’avor” under force majeure one is exempt from punishment because the transgressor did not act voluntarily, but even so Rambam rules there that if a sick patient saves his life with avodah zarah [or one of the other two yehareg vi’al ya’avor interdictions] we execute the transgressor because he acted voluntarily. [I.e. the person registers for an organ willingly; no gangster compelled the person to register. The person registered merely to escape death at the hands of illness. Therefore, the organ recipient is morally culpable for causing the “safek death” of the brain dead patient (on the side of the safek that the brain dead patient is not already dead).]

    And likewise it is in Shulchan Arukh Orach Chaim 204:8 that if a Jew was forced [by gangsters] to eat, even though he enjoyed the food, he does not recite a blessing because he was forced over this. But even so if a sick person eats non-kosher food, he is obligated to recite a blessing over the non-kosher food since he is doing so voluntarily, see Mishnah Berurah §25. And so it seems here as well. [I.e. the person registers from the organ to escape illness rather than a gangster, and so is certainly culpable.]”

    In summation: there are two fundamental reasons why RSZA prohibits harvesting the organs from a BSD patient *even when* the patient granted advance consent for his organs to be harvested:

    (a) The Sefer Chassidim’s advocacy of sacrificing one’s life to save a talmid chakham applies only to surrendering oneself to an evil terrorist who is intent on murdering someone. Here, in the case of BSD, there is no evil terrorist intent on murdering anyone. The healthcare workers are righteous people whose goal is to save human life. If one tells the healthcare workers – please impose a moratorium on organ transplants because (although most probably a BSD patient is dead theory) we are not certain on how to apply the definition of death in practice (and so there is safek piku’ach nefesh here for the BSD patient) – no one will be murdered. Yes, eight other patients will die from organ failure, lo aleinu, but no one will be murdered. [For the same reason, I think that R. Kook’s hetter to sacrifice oneself can be deflected. R. Kook was addressing one Jew sacrificing his life – like Esther – to save many other Jews from being murdered by an outside terrorist like Haman. But R. Kook never permitted one Jew to sacrifice his life to save other Jews from dying of a natural illness. Such suicide is forbidden, and – moreover – a healthcare worker who participates is such suicide is himself guilty of murder. The consent of the murder victim does not mitigate the obligation we have of safek piku’ach nefesh toward to the murder victim (i.e. the BSD patient).]

    (b) The Sefer Chassidim’s advocacy to sacrifice oneself in order to save a talmid chakham possibly only applies when the person is conscious until the last moment it is possible to retract. This way, we know the hero is rendering the choice from his own free will. But in the case of the BSD patient (if one should assume that the BSD patient is doubtfully alive), we don’t know whether the patient has retracted his consent before the organ transplant. [For the same reason, I think R. Kook’s hetter to sacrifice oneself can be deflected. R. Kook was addressing one Jew willfully sacrificing his life with free choice – like Esther – to save many other Jews. Until the last moment that she entered Achashverosh’s chamber, she was conscious that he was sacrificing her life (and for that reason was reciting chapter 22 of Psalms according to the gemara in Megillah 15b, as a plea to HKB”H that she be successful in saving the Jews). But R. Kook never permitted an outside party to assume that an unconscious Jew wants to still sacrifice his life to save many others, even if the Jew announced that willingness many days ago, while he was still conscious.]

    As for R. Moshe Sternbuch, he vacillates whether to rule like R. Shmuel Eliyahu or whether to rule like RSZA. It seems to me, therefore, that in light of the considerations of “mai chazit” as well as safek piku’ach nefesh for the BSD patient, we are forbidden to harvest organs even if he signed an organ donor card in advance. For this reason, I applaud the actions of the wife of the Israeli soccer star who declined to allow her husband’s heart to be transplanted. She was seemingly fulfilling the mitzvah di’oraita of safek piku’ach nefesh vis-a-vis her husband (even though, in principle, most probably her husband was dead. But the point is that there was seemingly a small chance her husband was still halakhically alive, and therefore a mitzvah di’oraita of safek piku’ach nefesh. And – as per RSZA’s approach – the husband seemingly did not have the authority to allow himself to be doubtfully murdered, even if he signed an organ donor card in advance.) Only if HaRav HaGa’on R. Shlomo Moshe Amar can refute RSZA’s interpretation of Chatam Sofer is it possible to treat the BSD patient as definitely dead. But as R. Yigal Shafran indicated in his HODS interview, such a refutation does not seem likely in the future, or to quote R. Shafran verbatim: “ee efshar livatel et hapeshat shel HaRav Eliashiv”. [R. Eliashiv follows RSZA’s interpretation of Chatam Sofer.]

  85. “I find this a pretty awful statement unless he equates morality with public policy. I therefore suggest that you make sure about what he actually said and then tell us. I hope it wasn’t this.”

    Joseph Kaplan, you can see above that that is precisely what he said.

  86. Unfortunately I do. The line that gets me is: “The question is, maybe as a matter of public policy, maybe we shouldn’t support their atrocities.” So now it’s a “maybe” of whether we can “support . . . atrocities.” Makes feel proud that at least we raise that “question.” (Need an emoticon for sarcasm.)

  87. Shalom Aleikhem R. Beckerman,
    Thank you and yi’yasher kochakha for raising the excellent question of why R. Eliashiv prohibits receiving an organ from an already-executed Chinese prisoners, even when the dangerously ill patient will die. The answer is – as explained in my comment on Jan. 9 at 2:06 a.m. at https://www.torahmusings.com/2010/12/brain-death-in-the-news/ – the basis for R. Eliashiv’s permission to receive organs from BSD patients is that R. Elaishiv asserts there is no prohibition of geram retzichah when the victim is a treifah or gossess bi’yidei adam. [R. Eliashiv assumes that a BSD patient has the status of a treifah or gossess bi’yidei adam.] However, the Chinese prisoners are clearly not treifah or gossess bi’yidei adam. The Chinese prisoners are completely healthy, and so it would be geram retzichah for a person to register for an organ from a Chinese prisoner. [As noted in my comment there, it seems to me that R. Eliashiv’s approach is subject to refutation (-apparently RSZA himself rejected it), and that it is forbidden to register for organs, even if they come from a gossess bi’yidei adam or treifah. Hence, my recommendation (if the Gedolim should arrive at a consensus that the status of BSD patient is doubtful, and moreover that it is questionable whether RSZA’s interpretation of the Noahide Code is correct) for a moratorium on all cadaveric organ transplants.]

  88. Reb Spira’s quick and highly informative response is, once again, much appreciated and highly enlightening. The teshuva of Rav Auerbach, ztl, appears fascinating, and invites careful study and concentration, both of which I don’t have available right now. Nevertheless, Rav Sternbuch clearly appears comfortable in weighing in on the issue of “heroic suicide”, and is clear in allowing on an ad hoc basis, by beis din. That Rav Sternbuch is saying it, particularly in a formal written teshuva, positively influences me because thanks to the Daat Torah blog (R’ Daniel Eidensohn), I’ve become somewhat familiar with his way of thinking. Rav Sternbuch has been a good voice on child abuse. The widow of the Israeli soccer star holds like Rav Auerbach. Those of us who wish to hold by Rav Sternbuch, RCA poskim, and/or others, should be able to do so.

  89. Doron Beckerman

    R. Spira,

    Thank you for your distinction between BSD patients and the Chinese organs. However, see here for what RYSE actually said:

    http://rotter.net/forum/gil/7561.shtml

  90. Doron Beckerman

    I do think that by “public policy of not supporting their atrocities” he meant something along the lines of RYSE and the CI.

  91. R’ Elliot Pasik,

    Thank you for your kind words and important response. You posit that “those of us who wish to hold by Rav Sternbuch, RCA poskim, and/or others, should be able to do so.” I respectfully disagree with the methodology of pesak halakhah that you have presented. On the contrary, the gemara establishes in Shabbat 129a that when there is a legitimate dispute among poskim regarding piku’ach nefesh overriding Shabbat, we are obligated to follow the opinion that says to desecrate Shabbat to save the patient (-which, in this case, seemingly is the BSD patient who previously signed an organ donor card). Moreover, the principle of “mai chazit” dictates that a healthcare worker cannot perform an act which may possibly constitute homicide. Only if we can delegitimize RSZA’s approach (be it his approach to the Chatam Sofer or his approach to the Sefer Chassidim) can one accept the claim that a Beth Din could authorize a healthcare worker to remove organs from a BSD donor who previously signed an organ donor card. Otherwise, what good does the directive of the Beth Din do? “Ein shali’ach lidevar aveirah” (as per the gemara in Kiddushin 42b) – no one should listen to such a Beth Din.

    Obviously, I am respectfully challenging R. Moshe Sternbuch here (-just as R. Moshe Sternbuch is respectfully challenging RSZA). I agree with you that this Beth Din approach of R. Moshe Sternbuch is a highly significant issue which the RCA paper completely overlooked, evidently due to the very recent nature of the publication of Teshuvot Vihanhagot, Chelek Chamishi. On this count alone, the RCA needs a sequel.

  92. Reb Spira: “On the contrary, the gemara establishes in Shabbat 129a that when there is a legitimate dispute among poskim regarding piku’ach nefesh overriding Shabbat, we are obligated to follow the opinion that says to desecrate Shabbat to save the patient (-which, in this case, seemingly is the BSD patient who previously signed an organ donor card).”

    But the gemara does not deal with the BSD patient, a treifa, who has previously declared, in writing, his informed consent (secular legal phrase) to engage in a “heroic suicide”, once being definitively diagnosed with BSD.

    Reb Spira: “Moreover, the principle of “mai chazit” dictates that a healthcare worker cannot perform an act which may possibly constitute homicide.” But its not homicide, as per very serious poskim, across the spectrum.

    We agree: RCA needs to examine this issue.

  93. Yi’yasher kochakha, R. Beckerman, for providing us with the original responsum of R. Yitzchak Zilberstein. I think the responsum is somewhat ambiguous but could be interpreted to agree with my analysis.

    Namely, R. Zilberstein writes that R. Eliashiv told him that *even if* we should assume that – because of dina dimalkhuta dina – the capital cases judged by Chinese courts are correct and that the Noahide Code entitled the Chinese judicial system to execute the criminals in principle, nevertheless in practice the fact that the organs are sold on the international market casts aspersions upon the objectivity of the Chinese judges to authorize the execution of a particular criminal, since the Chinese judge is a “noge’a badavar” (realizing that executing this particular criminal will enrich the Chinese financial treasury), as per Shulchan Arukh Even Ha’ezer 17:14.

    [Furthermore, continues R. Eliashiv (quoted by R. Zilberstein), the gemara in Chullin 92b establishes that the Noahide Code prohibits selling human flesh in the marketplace, a notion of human dignity that is also reflected in Ezekiel 39:1. (S. Spira’s observation: this consideration is seemingly not relevant in a situation of piku’ach nefesh. The only issue is geram retzichah, addressed in the previous paragraph.)]

    Therefore, concludes R. Zilberstein: “According to the principle of the law it is not necessary to be concerned that the organs originate from executed criminals. However, if there are rumours, one must avoid travelling there.” I (S. Spira) would interpret this to mean, if there are rumours that the hospital receives its organs from executed Chinese criminals, one must refuse the organ, because it is a situation of geram retzichah.

  94. Thank you and yi’yasher kochakha, R’ Elliot Pasik, for your kind words and sagacious response. Yes, indeed we agree that the RCA needs to examine this issue. Moreover, I admit that I am only “riding on your coat tails” – I give you the credit for discovering this omission in the RCA paper (-with the charitable understanding, of course, that R. Sternbuch’s responsum was only recently published, and so was inaccessible to the RCA when it wrote the paper). Evidently at hand is the issue of how to apply the gemara in Shabbat 129a: is the gemara saying that only that particular dispute between Rav Ashi and Mar Zutra was adjudicated in favour of Mar Zutra because “safek nefashot lihakel”, or is the gemara saying that every legitimate dispute among poskim regarding piku’ach nefesh must be adjudicated to the side of life because “safek nefashot lihakel”?

  95. “Sed: Welcome. You are obviously new here. My former student R. Spira, in his truly inimitable fashion, refers to everyone as “R.””

    Dr Kaplan, I am not new. I strongly suspect that R spira is writing tongue in cheek a lot of the time.
    In any case, thanks to him again for locating the sources and typing out that long excerpt.

  96. Doron Beckerman

    R. Spira,

    With all due (great) respect I have for you, RYSE simply did NOT say that it is geram retzichah and therefore prohibited based on retzicha overriding pikuach nefesh . He just didn’t. There is no way to read that into what he said.

    He said it is a Chilul Hashem and a perceived granting of a hechsher and legitimacy to (not causing of) murder and bizayon hameis. We can’t do that, even in a situation of pikuach nefesh. Chilul Hashem overrides Pikuach nefesh as well. See, e.g., Rabbeinu Yonah Avos 4:4

    אבל בשלשה דברים כל אדם חייב ליהרג עליהם: ואם יעבור ולא יהרג הוא עון פלילי כעבודת כוכבים ושפיכות דמים וג”ע. וחלול השם בפרהסיא עונשו גדול מכל אלו הג’ כמו שנא’ ]יחזקאל כ’ ל”ט[ ואתם בית ישראל כה אמר ה’ אלהים איש גלוליו לכו עבדו ואחר אם אינכם שמעים אלי ואת שם קדשי לא תחללו עוד במתנותיכם ובגלוליהם. הנה נתבאר לך ביותר )הפקיד( ]הקפיד[ במה שהיו עובדים גלוליהם מפני שהיו מחללין את השם קדשו בפרהסיא מן העבודת כוכבים עצמה.

    See also Pe’er Hador, III, 185, that Chillul Hashem can even override the 3 Aveiros that override Pikuach Nefesh (!), and therefore one may certainly not violate any Issurim in a situation of Chillul Hashem.

  97. Thank you, R. Beckerman, for your kind words and important rejoinder. The reason I believe R. Zilberstein’s responsum is consistent with my analysis is that the term “Kiddush Hashem” (and its converse, lo aleinu) is applied by Rambam in Hilkhot Yesodei HaTorah ch. 5 to the obligation to refrain from geram retzichah, even in order to save one’s own life. Thus, when R. Zilberstein’s speaks of the converse of Kiddush Hashem, I take this a code word for geram retzichah. The citation of Shulchan Arukh Even Ha’aezer 17:14 by R. Eliashiv seems to confirm my analysis – R. Eliashiv is concerned that the judge is “bribed” by the fact that the knows that the Chinese government will receive money of a particular criminal is executed and his organs are donated. Hence – the way S. Spira fills in the blank in R. Eliashiv’s statement – the individual who registers for the organ is guilty of geram retzichah.

    Parenthetically, I found that passage in the Pe’er Hador fascinating but not convincing. For shefikhut damim, Pe’er Hador cites the case of the seven sons of Sha’ul Hamelekh being handed over to the Gibeonites, as described by the gemara in Yevamot 79a. With all due respect to the Chazon Ish, it seems to me (a nothing of nothings before the Chazon Ish) that the story is not a real halakhic proof. In that story, David Hamelekh was prophetically instructed by HKB”H as a hora’at sha’ah (and to save all of Klal Yisra’el) to hand over those seven sons. [It’s exactly the same way that Avraham Avinu was instructed to sacrifice Yitzchak, even though human sacrifice is obviously normally forbidden. It was a hora’at sha’ah.] Without that prophetic instruction, obviously David could not have handed over the seven sons of Sha’ul. Thus, it seems to me that the idea that is attributed to the Chazon Ish by Pe’er Hador is an aggadic bon mot but not a serious halakhic proof. And it is for this reason that Chazon Ish never printed it in his sefer.

  98. Doron Beckerman

    R. Spira,

    On your first paragraph – you can’t be serious.

    On the second – where was David instructed to hand them over? The Aron only determined who would die, not that they should die to begin with.

    The Rishonim there do not mention anything about prophetic instruction either. One can debate how far to extend the nature of that “Akirah” of the Torah for the sake of avoiding Chillul Hashem, perhaps along the lines of Makin V’onshin Shelo Midin Torah, but not based on prophecy.

  99. R.Spira,
    You quote Rav Safran to partially prove your point.Yet Rav Safran follows irreversible brain and brainstem death as death.
    You present RSZA as the only point of view besides Rav E liyahu ,I would think you need to analyze also the other sources quoted and their Halachic basis for their interpretation.

  100. Thank you and yi’yasher kochakha, R’ Daat Y, for your illuminating rejoinder. I agree with you that the general point of R. Shafran’s HODS interview is to encourage acceptance of BSD. However, R. Shafran posits at 10:54 into the interview:

    “Yesh poh de’ot shel poskim chashuvim. Ee efshar bishum ofen livatel et hapeshat shel HaRav Eliashiv. Hu gam muva al yidei bitui al pi hanu’ach hashoneh shel divrei HaChatam Sofer – Mah bi’etzem hitkaven HaChatam Sofer bahagdarat hamavet shelo. Zeh machaloket bein shnei gufim me’od gedolim shel talmidei chakhamim gedolim, vidomani shekol od lo yagi’u li’emek hashaveh bahakhra’at hadevarim, ee efshar bi’ofen boteh vichotzetz shemavet mochi hu mavet, vi’ein alav shum cholek.”

    S. Spira’s translation: “There are here [conflicting] views of great decisors. It is totally impossible to cancel Rabbi Eliashiv’s interpretation. It [-the dispute between the great decisors-] is manifest by the unique language of the Chatam Sofer – what in fact did the Chatam Sofer mean with his definition of death. This is a great dispute between two formidable camps of formidable talmidei chakhamim, and it seems to me that until they reach an equal playing field, it is impossible to state unequivocally that brain death is death”.

    Accordingly, if one interprets the gemara in Shabbat 129a the way that gemara is interpreted by Encyclopedia Talmudit IX, p. 267 (viz. that wherever there is a legitimate dispute among the poskim regarding desecrating Shabbat to save a patient, we are obligated out of doubt to follow the approach that says to desecrate Shabbat to save the patient), it emerges from R. Shafran’s above cited comments that we are obligated to desecrate Shabbat to heroically maintain the BSD patient on the machine. Of course, R’ Elliot Pasik has challenged the Encyclopedia Talmudit’s interpretation of the gemara in Shabbat 129a. This therefore requires further investigation.

  101. R.Spira -And despite all that Rav Yigal Shafran follows BSD.

  102. R’ Daat Y,
    Thank you; you’re right. Apparently, R. Shafran interprets the gemara in Shabbat 129a contrary to the Encyclopedia Talmudit (-though I don’t know for sure; it’s a valid question to pose to R. Shafran).

    Also I apologize that I missed a Hebrew word in transcribing the last sentence of R. Shafran. It should read “ee efshar latzet bi’ofen boteh vichotzetz shemavet mochi hu mavet, vi’ein alav shum cholek.”

  103. R.Spira-I appreciare your intellectual honesty.
    There are further sources in the articles I recommended on Feb.14 at 8:40 and 8:56 pm.

  104. lawrence kaplan

    Rabbi Spira: I read Rav Silbestein’s responsum, and I am with R. Beckerman 100%. There is not the slightest whiff of geram retzihah in the responsum. Your reasoning is tortuous in the extreme. It is one thing to fill in the blanks; it is another to rewrite what is there. R.silbersiten cited the SA to indicate that one cannot claim the execution is dina de-malkhuta dina.

    Sed: R. Spira’s tongue is never in his cheek.

  105. I thank R. Beckerman and Mori ViRebbi R. Kaplan for their kind words and their cogent rejoinders. Still, I believe – kitalmid ha’yoshev bakarka vidan lifnei rabbotav – that my interpretation of the responsum is potentially viable because of the reference to shefikhut damim being “yehareg vi’al ya’avor” (sixth line of text of responsum). Since dina dimalkhuta dina does not justify the Chinese execution (when the execution is prompted by ulterior financial consideration), it means that I (as a wealthy foreigner who registers for a Chinese organ) am the ultimate cause of the Chinese execution. Hence, the problem is one of geram retzichah.

    Nevertheless, I agree that the responsum is ambiguous and could be alternately interpreted as R. Beckerman and Mori ViRebbi R. Kaplan elucidate it. [And maybe both interpretations are true.] Maybe a reader of this website who enjoys the awesome privilege of an audience with R. Eliashiv can ask R. Eliashiv to clarify the responsum.

  106. Shachar Ha'amim

    R’ Shalom Spira

    If you look at the materials on Rav Kook that I linked to (i.e. Prof. Rakovers book on this topic) you will see that it is not just in the case of wartime or to prevent terror. I.e. Rav Kook also deals with the case of simply committing suicide to try and save the life of another – e.g. jumping in a dangerous ocean, trying to catch someone who fell off a building, or an other instance you can think of someone who is committing suicide or acting in a near suicidal manner in order to try and save the life of another.

  107. R Spira – Dr Kaplan knows you and I don’t. Is your tongue ever in your cheek?

    signed,
    sed
    not a rabbi
    not a tzadik gamur (more’s the pity)

  108. Lawrence Kaplan

    R. Spira: I understand that one can make the argument you made re geram retzichah. But R. Silberstin doesn’t make it.

  109. R’ Sed,
    Thank you for asking. Although I do appreciate the rabbinic obligation to (in a manner of reverence for Heaven) mildly increase one’s joy during the month of Adar as established by the gemara in Ta’anit 29a-b, generally in this discussion I have endeavoured to be humour-free. [No pun intended: R. Edward Reichman’s landmark 1993 brain death article spoke about the four humours of Galen’s medicine.] See also Contemporary Halakhic Problems V, p. 75, where HaRav HaGa’on RJDB asserts that on one occasion he spoke in a manner that was “partially tongue-in-cheek”. [Obviously, that speech of RJDB must have been delivered during Adar, in fulfillment of the rabbinic obligation codified in Ta’anit 29a-b.]

    However, there was an unavoidable moment of slight tongue-in-cheek when I previously quoted the classic Yiddish expression (in my endeavour to explain how RMF published IM CM 2:72 in 1985, when RMF had already told his entire entourage that brain death=death) that “from a kashya, a person doesn’t die!” What I meant was, HaRav HaGa’on RMDT is a tzaddik gammur, and I hold we are fully accept his testimony regarding RMF’s position, apropos Tosafot to Yevamot 77a. [Morevoer, although RMDT does not require corroboration, he is indeed corroborated by several impressive testimonies offered on the HODS website. As Tosafot to Bava Metzi’a 7b (s.v. bizeman shehaba’al modeh) state: ‘lo chaishinan lekenunia’ – we do not concern ourselves for the possibility of collusion among different people. Certainly this is true when those people are tzaddikim gemurim.] As for how to explain the publication of IM CM 2:72 in 1985, there must be some peripheral explanation. Apparently, RMF simply overlooked the fact that in 1985 he was publishing that which (in his opinion) was an anachronistic responsum, for by 1985 it was a great mitzvah (according to RMF’s opinion) to donate a heart, since the heart donors could not breathe, and the heart recipients had no problem of immunological rejection. It could well be that RMF did not anticipate that he would be summoned to the Heavenly Academy a year later, and so RMF thought he will announce his position that it is a great mitzvah to donate the heart in the next volume of IM that he personally publishes, say, a few years later. [Alas, much to our chagrin, such a volume never came to pass.] However, one may further posit that this forgetfullness on the part of RMF was Si’yata D’Shmaya in action, for the ruling of RMF would a few years later be (in S. Spira’s opinion) potentially overturned by RSZA. I must admit am profoundly uncomfortable saying that RMF’s ruling was overturned, seeing as I was taught my teacher R. Joshua Shmidman that regarding RMF – “Shekhinah midaberet migerono shel Mosheh”. However, RMF himself prepared the theological basis for assuming that (under very very limited and exceptional circumstances) RMF’s own ruling could be subsequently overturned, based on what RMF writes in IM YD 3:88 regarding overturning rulings of the Chazon Ish. Thus, it was a true chessed from HKB”H that RMF forgot to advocate heart transplantation in the final volume of IM that he personally published, because RSZA would refute RMF a few years later.

  110. To elaborate further on my previous comment at 12:06 p.m.: The last volume of IM which RMF personally published in 1985 contains many many sparkling responsa. The particular responsum in which he prohibits heart transplantation (CM 2:72) is just one among many. So it may simply have been the proverbial needle lost in the haystack, and RMF neglected to update that responsum.

    Also, (and this is only S. Spira’s speculation), one may add that if one listens carefully to HaRav HaGa’on RMDT’s original 1988 symposium, he reports toward the end of his presentation (and before HaRav HaGa’on RHS delivered his countervailing presentation) that he (HaRav HaGa’on RMDT) explained the apnea test to RMF on February 15, 1986. Accordingly, it may be that RMF’s enthusiasm to advocate heart transplantation was strengthened on Feb. 15, 1986, which is after the last volume of IM was already published. Thus, on Feb. 15, 1986, RMF announced that he was updating the already published contents of IM CM 2:72.

  111. It’s adar rishon, you don’t have to be machmir.

  112. Lawrence Kaplan

    Sed: What did I tell you?

  113. Another question that needs to be posed to HaRav HaGa’on R. Yigal Shafran concerns the segment of his HODS interview beginning at 9:20 into the recording, as follows.

    Robert Berman: HaRav muda al hamakhshir shel ha-“Transcranial Doppler”?

    HaRav HaGa’on R. Yigal Shafran: Ken, ani choshev shebe’emet hamakhshir hazeh, lu hayu matzigim oto laRav Auerbach, hayah meshakhne’o al semakh makhshir shekazeh she’akhen mavet mochi hamevussass al ha-“Doppler” hu akhen mavet likhol davar, vinitan lakachat et ha’eivarim lahashtalah.

    [S. Spira’s English translation of the above dialogue:]

    Robert Berman: Does the Rav know about the Transcranial Doppler?

    HaRav HaGa’on R. Yigal Shafran: Yes, I think that – truly – if this instrument would have been presented before Rabbi Auerbach, it would have convinced him – in relying on this instrument – that indeed brain death which is based on the Doppler is death in every respect, and it is proper to take organs [from the brain dead patient] for transplantation.

    [End of excerpt from the interview]

    Seemingly, HaRav HaGa’on R. Yigal Shafran is at variance with the following passage in Practical Medical Halachah, 3rd edition (by HaRav HaGa’on RMDT and Dr. Fred Rosner), published in 1990, when RSZA was alive and fully functioning. There, on p. 65, the authors posit:

    “Thus, if it can be demonstrated that all brain functions including brain stem function have ceased, the patient is legally dead in Jewish law because he is equated with a decapitated individual whose heart may still be beating. Brain stem function can be accurately evaluated by radionuclide cerebral angiography at the patient’s bedside. This test is a stress-free, simple, safe, highly specific, and highly reliable indicator of absence of blood flow to the entire brain, thus confirming total irreversible brain death. “The absence of cerebral blood flow is presently considered the most reliable ancillary test in diagnosing brain death.” Other presently used tests to confirm brain death are the apnea test, evoked potentials, transcranial Doppler studies, xenon-enhanced computer tomography, and digital subtraction angiography.”

    [End of quotation from Practical Medical Halachah]

    Thus, Transcranial Doppler apparently already existed when RSZA was issuing his rulings regarding the definition of death, and still RSZA regarded the brain dead patients with whom he was presented as potentially alive.

    [Actually, based on my comment on Feb. 13 at 5:38 p.m. on R. Broyde’s article, I would say that the brain dead patient must be treated as possibly alive even if we could indeed confirm that every brain cell had died (contrary to RSZA). However, what I mean to point out here – for purposes of strengthening the RCA paper – is that even absolute devotees of RSZA should seemingly admit that the Transcranial Doppler is *not* sufficient to declare a patient definitely dead according to Halakhah.]

  114. Chief Rabbi Jonathan Sacks, when asked isn’t it problematic to reject brain death yet take organs from a brain dead person. He was quoted in the Jewish Chronicle

    http://www.hods.org/pdf/press/Chief%20asks%20for%20organ%20card%20shift.pdf

    as saying “That was a “spurious question”, the Chief Rabbi said on Wednesday. The only question was
    whether the organ was “given freely by the consent of the donor.”

    Yet Professor Steven H. Resnicoff in his post above states:
    “Under halacha, a patient’s consent is irrelevant. A person cannot kill someone merely because the victim consents, even if the victim is conscious and gives consent at the time he is killed. How much more so is this true when the victim merely gave consent in advance at a time when he may not have fully appreciated the practical or halakhic consequences of the decision.”

    Also, the Chief Rabbi was quoted saying, “…as soon as national donor cards were able to meet halachic requirements, he would carry one himself.”

    Yet the Chief Rabbi, many months later, has still not stated what changes he would like to see. I wonder what changes he would like to see that are not already available in the organ donor card of the Halachic Organ Donor Society.

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