Problems Posed by the Brain Death Standard
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)