One of the most vexing questions in contemporary medical ethics is when a dying patient can be considered dead. Until several decades ago, the answer was simple: when a patient stopped breathing and his heart stopped beating. However, since the invention of artificial respiration, the answer is no longer straightforward.
During the last fifty years, a number of landmark halakhic responsa have been written, evaluating whether neurological definitions of death (a.k.a. “brain death“), such as the Harvard Criteria of 1968, are valid in the eyes of halakha. However, up until now, there has been no systematic attempt to research which medical information had been used as a basis for those halakhic responsa.
Recently, the Vaad Halacha of the RCA has done just that and published a extensive paper on the determination of death in halakha. The paper has been picked up by the news media [Jewish Week] and been extensively discussed in some blogs [Hirhurim I and II].
While the paper does is presented as an educational exploration, not forcing any conclusions, the paper nonetheless demonstrates that to date, there has been very little support from the halakhic responsa literature, to support accepting “brain death.” See below for my take on this. Anyway, understandably, those who advocate accepting the neurological standard were not pleased, and not everybody welcomed the paper.
The lead author of the study is R’ Asher Bush, the chairman of the Vaad Halacha, and yours truly had the privilege to contribute as an editor of the paper.
Despite having contributed to the paper’s final form, the comments below are mine only and do not necessarily reflect the opinion of the article’s authors.
First a brief description of the issue
At stake are a number of issues. First of all, when is it permissible to stop providing artificial respiration? Removing a ventilator from a live patient will likely kill him.
Secondly, may one be an organ donor, or are patients still considered alive when organs are typically harvested? Removing organs from a live patient, even for the noble cause of saving someone else’s life, would be nothing less than murder.
Thirdly, with the rising cost of hospital care, there is much pressure to free up beds as soon as possible. When is too soon?
Organ Transplants
In reality, the ethically most pressing question concerns the permissibility of organ transplants, and the paper expends a considerable effort to explore that issue.
The paper, as do just about all posqim, unambiguously rejects the possibility of harvesting organs from live people. [Sadly, this must nowadays be stated, as some secular bioethicists advocate simply killing permanently comatose patients in order to harvest their organs.]
Hearts and lungs are necessarily harvested before cessation of heartbeat and respiration, most liver transplants must be harvested in the same way. Thus, if “brain death” is rejected in halakha, those organs cannot be donated. Live partial liver transplants, though still extremely risky, and the already much safer live kidney transplants, are obviously unaffected by this question, and the paper advocates live organ donation. Cadaver kidney and cornea transplants, as well as some other tissues, can be harvested after cardiopulmonary death, and are halakhically encouraged.
It should also be noted that posqim generally do not feel that the prohibition of nivul hamet (disfigurement of the deceased) should prevent harvesting organs, since saving a life takes precedence over keeping a corpse whole. Furthermore, no difference is made between organs for Jewish or gentile recipients; when organ donation is permissible, they should be made available to all.
The Second Ethical Question – May One Accept Transplants
Though many posqim question the permissibility of harvesting organs from a “brain dead” patient, they permit receiving organs.
However, this creates a troubling ethical conundrum, as it means people who observe halakha may – in this matter of life and death – be takers, but not givers.
The reason is that the posqim have generally assumed that available organs will be harvested no matter what, and that a patent receiving an organ therefore bears no responsibility whatsoever for the possible murder of the transplant donor.
However, there are reasons to doubt this assessment of the medical facts. Transplant recipients are carefully matched with donors, and surgeons will try to postpone harvesting the organs so as to minimize the time organs are out of a body. That suggests that the patient must be complicit in the harvesting of the organs.
I do not consider myself qualified to render rulings in this matter, but it surely looks like posqim should be provided with the most up to date information on this, too, and let them reevaluate.
Does the Paper Really Reject the Brain Death Standard?
Actually, it doesn’t. It merely notes that despite claims to the contrary, to date, there have hardly been any published responsa that really support relying on “brain death.” Upon investigation, it turns out that just about all the permissive original* responsa published by major posqim were based on medical information that points at other kinds of conditions, or that is otherwise questionable. Practically, it does mean that for now, there is insufficient support to rely on the “brain death” standard. (*= original means that it is a responsum that makes an original contribution, and is not primarily a statement of agreement with, or a vote for, another contemporary posseq.)
But, none of that should prevent posqim from henceforth acquiring comprehensive accurate and pertinent medical information in this matter and reach different conclusions. Obviously, as this is ultimately a halakhic issue that needs to be decided by the greatest exerts around (we are talking about matters of life and death, which may involve either murder of the donor or needless non-assistance to a recipient – not a matter regular rabbis can decide), there can be no prejudice. The consensus may shift, or it may not. But to date there is too little support for relying on “brain death.” Some major posqim genuinely support “brain death,” but far fewer than commonly assumed.
But What About the Patients?
Every year, countless patients die waiting for a transplant. Four years ago, the New York Times reported that demand for kidneys in the USA was five times the supply.
In 2008, the last year for which the USA Health Resources and Services Administration published these numbers, there were 139’917 patients waiting for a transplant in the USA alone. Of those, 7’182 died that year while on the waiting list.
However, as their report on the time to transplant shows, not all organs are in equally short supply. Some are in shorter supply than others. In 2005, the median time a patient remained on the waiting list for a kidney was 1269 days, while patients waited a median 131 days for a heart, 200 days for a lung and 269 days for a liver. Kidneys are in very short supply.
Unsurprisingly, the number of patients waiting for kidneys also exceeds greater than those looking for any other organ transplant. In 2008, 33’051 were waiting for a kidney, 11’176 for a liver (which, increasingly, can come from a live partial liver donation), while all other categories combined numbered 8’058.
There is rising awareness for live kidney donations, both in the Orthodox Jewish community and in the population at large. As there is a chronic organ shortage, which, in the case of kidneys, has been getting worse, only live donations can turn this critical situation around. Live donations have a far greater potential than cadaver donations. And, as noted in the RCA paper, it is actually possible to harvest usable kidneys from a patient who has definitely, totally died, beyond any halakhically relevant doubt.
Thus, even if the halakhic consensus remains firmly against the” brain death standard,” the supply of the most critically needed organ need not be affected – provided hospitals are willing to accomodate cardiopulmonary dead kidney donors. A number of other life-saving tissues can similarly be harvested from cardio-pulmonary dead donors; this should be encouraged.
Beyond that, the Jewish community needs to be a the forefront of advocating research in live donations, partial organ donations, which may possibly be made to regrow even in the donor, and stem cell research that offers, in the long term, the potential to regrow organs from the recipient’s own tissues, obviating the need for most cadaver donations. The field of xenotransplanation, harvesting organs from specially genetically modified donor animals, need not be forgotten, either. A few years ago, this was a very hot field, but has recently been getting less attention.
I close this post with a prayer, that G”d may open our eyes and show us more and more miracles of His creation, so that we may heal the sick and strengthen the weak, bring sight to the blind and comfort to the downcast, all while acting according to the highest ethical standards.
Mikolot Mayim Rabbim 
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I appreciate your analysis and linking to my article on Hirhurim. I would like to point out a few facts:
1. given what you wrote, the appropriate title should have been “problems we have found with the neurological criteria for death” or something similar. This would have indicated to the reader that you were only going to provide one side of the medical and halachic data. With the present title, the reader assumes that the presentation is going to be balanced, which, as I have pointed out, it certainly is not.
2. I provided Rabbi Bush with a list of medical references which show that many of the issues raised in the paper were known in the medical world in the ’70s and early ’80’s, thus casting doubt on any assertion that poskim of that era were unaware of what the paper terms ‘recent developments’. I can supply you a copy of what I had sent Rabbi Bush in 2008.
3. I had politely asked that respondents to my post answer questions posed at the end. I am sorry that you did not take the opportunity to do so. Not answering might be seen as an inability to do so cogently.
4. If death is not determined by neurological criteria, the other criteria usually presented is the irreversible cessation of circulation(or some variant). The act of performing CPR in fact creates circulation(a pulse can still felt when CPR is done). Therefore, as long as a body has arteries and veins, circulation never has irreversibly ceased. All it takes is a good push on the chest and there will be circulation. So, if irreversible loss of circulation really is the criterion for death, death can only be declared when enough time has passed for all the arteries and veins to disintigrate, a matter of days or weeks. Is that really the position you advocate? Thank you in advance for your replies
I appreciate that you take the conversation here, too. I will attempt to answer your questions, briefly, though I can obviously not guarantee they will satisfy you.
1. I am not sure what your gripe is about. The paper’s title is Halachic Issues in the Determination of Death and in Organ Transplantation. The word “issue” is synonymous with “problem,” and so, the title says exactly what you want it to say. Likewise, the subtitle, Including an Evaluation of the Neurological ”Brain Death“ Standard, is also rather clear: it evaluates whether the standard is halakhically supported.
2. Whether posqim were or were not aware of the medical information you mentioned to R’Bush, is not only a function of what medical information was out there. The authors read the responsa and conducted interviews whenever possible, to uncover as much as possible what cases the posqim were writing about. Upon perusing the this information, one readily discovers that the posqim did hardly relate to proper brain death diagnoses. Sometimes they related to other diagnoses, sometimes to theoretical cases that are hardly ever encountered, but those who wrote permissive responsa did not relate to brain death. You can read between the lines and speculate quite fruitfully why this is the case.
3. My role in the paper was that of an editor. I did not impact the philosophical-halakhic outlook of the paper, as that was not part of my mandate, that was set by the Vaad Halacha. I may have an opinion about your question, but any opinion I may have is overshadowed by the fact I was an editor, not an author of this paper. So I intentionally avoided answering that question. וכשם שקבלתי שכר על הדרישה כך אני מקבל שכר על הפרישה (cf. Bekhorot 6b) However, my answer to point four provides a direction to answer your other questions, too.
4. As I commented on Hirhurim, jurisprudence, in this case halakhic jurisprudence, does not only include what to do when facts are presented, but also how to analyze facts and even which facts to invest with legal weight. In short, a legal tradition includes a tradition of how to look at reality and which facts are relevant. This is obviously not necessarily a static enterprise, and may change over time, but while applying well accepted legal principles can be left to ordinary jurists (think ordinary state judges in American law, or ordinary rabbis in halakha), it takes quite more authoritative jurists to pronounce legal precedents in weighty cases (think, in some cases, the federal Supreme Court in American law, or the gedolim in halakha). You look at reality from a particular perspective, but posqim are not required to look at it from the same perspective.
Let me illustrate this point with a kashrut analogy. An unintentional admixture of kosher and non kosher substances is permissible in consumption if the non kosher foodstuff represents less than 1/60th of the kosher foodstuff (let’s ignore spices and other particularly strong flavoured foodstuff). Now imagine you have invented a machine to separate the pork chop juices that fell in to a hearty, otherwise kosher meat stew. Will that machine help make a stew kosher, after a whole ham fell in, representing over a tenth of the kosher foodstuff? Imagine you could invent a machine that would taste the stew and determine whether or not the pork flavor is significantly diluted, and you could show that in a particular case, a non kosher leg of lam soup was no longer perceptible in a volume of kosher leg of lamb soup which merely had a 40-to-1 ratio. Would that be halakhically satisfying? In both cases, standard Ashkenazi jurisprudence would reject the innovation. We would argue that the 60-to-1 ratio is not entirely connected to facts. It is a legal standard, from which we do not veer. If a pressing need would develop, to accept such innovations, we would want some major posseq to back the innovation.
[Note: while Sefardim may rule differently in the second example I provide, the first example suffices to demonstrate my point.]
Likewise here. You want the halakhic world to see the reality of death in different terms. But there is absolutely no obligation for the halakhic community to define death in terms of milliliter of blood circulation per seconds, or of particular brain activity. Up until recently, and most of the time, still today, it is fairly straightforward to define death, as mankind has done throughout centuries. To change the paradigm we need to input of the greatest jurists, because it represents a major change that when misapplied may cause us to unwittingly be partners to murder (of the potential donor), or to fail to assist someone in mortal danger (the patient in need of a transplant).
Now I grant that your CPR question is a good one. Perhaps it, along with some other questions raised by the RCA paper, by you and by others in the field can become the impetus to seek unbiased guidance. That would be a good thing. And who knows, you may even find agreement among some posqim. Just make sure they address brain death, and not some other situation, however interesting it may be, too.
I want to close by repeating and restating a point I made above. I do not believe that local Orthodox rabbis should be disqualified from issuing halakhic rulings. Qualified rabbis are not only teachers, but must, when appropriate, issue rulings. אמר רבי אבא אמר רב הונא אמר רב מאי דכתיב (משלי ז, כו) כי רבים חללים הפילה זה תלמיד שלא הגיע להוראה ומורה ועצומים כל הרוגיה זה תלמיד שהגיע להוראה ואינו מורה – Said Rabbi Aba in the name of Rav, what does that which is written (Proverbs 7:26): “For she has cast down many wounded” [apply to]? To a Torah scholar who is not yet qualified but issues rulings. And “yea, a mighty host are all her slain”? To a qualified Torah scholar who refuses to rule.
However, not everyone is qualified to rule on everything. It is because of the particular sensitivity of this issue, which literally impacts life and death, that I believe we have no choice but to defer to the very greatest posqim. All questions fall on a continuum, and all experts fall on a continuum. The more sensitive and grave a question, the more we need to reach out to our greatest masters.
1. Here is what dictionary.com has for definitions of issue as a noun.(there are 19, I only brought the ones that are relevent).
is·sue /ˈɪʃu or, especially Brit., ˈɪsyu/ –noun
5. a point in question or a matter that is in dispute, as between contending parties in an action at law.
6. a point, matter, or dispute, the decision of which is of special or public importance: the political issues.
7. a point the decision of which determines a matter: The real issue in the strike was the right to bargain collectively.
8. a point at which a matter is ready for decision: to bring a case to an issue.
None of these say anything about having an oppositional stance.
Here is what it says regarding evaluation:
e·val·u·a·tion /ɪˌvælyuˈeɪʃən/ –noun
1. an act or instance of evaluating or appraising.
Again, no reference to taking only one side. You seem to agree that the report states only one side. My point is that the title and introduction do not clearly state that the paper is going to do so. A honest evaluation includes a statement of both sides, and then a conclusion. The conclusion may go one way or another. The paper contains only the data and analysis that supports one side. That is not an honest evaluation, it is a biased evaluation. It is deceptive.
Come to think of it, you disagree neither with our use of the word issue or the word evaluation, but with the fact that the paper’s thrust is predominantly one sided. That’s your prerogative, but it doesn’t really weaken the paper’s findings.
regarding your response to number 2, it seems that you are accusing gedolim of making psak based on erroneous or incomplete information. And how do you know that the piskei halacha that support your side were not based on erroneous information? Even if your contention is true(which is based on assumptions and not on data), the same approach could be taken regarding the responsa from before 1950 that support the circulatory definition of death. They did not take into account the fact that circulation is never irreversible(until the arteries have decomposed). Using your approach, we can go back and assume that they were not addressing real cessation of circulation, and write off their opinions.
Regarding issue number 4, this is not a theoretical problem regarding hypothetical machines. The next time someone asks you halacha l’maaseh if someone is dead or not, you will have two choices. You can hold by the concept of “the person is not dead until circulation has ceased irreversibly”, in which case you are obliged to tell the person to wait until the arteries have necrosed, which will take days. Or, you can hold by the details that have been developed based on the previous(now shown to be false) understanding, which is that you wait 20-30 minutes after cessation of respiration/circulation. So, halacha l’ma’aseh, what are you going to tell the person asking the question?
Regarding point 2, read the paper. It analyzes the responsa’s medical information in detail. The paper demonstrates what the responsa were and were not talking about, and also highlights difficult medical scenarios in the published record. You go one step further, and suggest that I say that the gedolim are at fault. That does not follow. Some responsa include intellectual explorations, where the use of purely theoretical scenarios is legitimate. Furthermore, as the paper does not point a finger at the source for any difficult information, I do not see why I would need to provide any fanciful speculations on the matter. You are free to use your imagination, as long as you remember it’s pure speculation.
Meanwhile, the paper has amply documented why the published record of major posqim does not yet support actually accepting the “brain death” standard.
Regarding point four, you know very well what the answer is halakha lema’asseh. However, the fact that we allow CPR to stop before arteries are necrosed does not mean that we reject the cardio-pulmonary standard. It merely requires that we refine the definition of cardio-pulmonary death. As any such definition will have halakhic consequences, I rather leave this to people greater than me, but I can suggest that the definition does not involve any blood flow produced only and directly by CPR.
I disagree with the use of the words issues and evaluation when the paper reflects that the words that should have been used were problems and critique. It is tremendously misleading. As I have shown, none of the words mean what you claim they do. Since it is not only predominantly one sided, but totally one sided, you should have put it in the title and introduction, not try to mislead people into thinking it was an objective discussion with well founded conclusions.
Regarding point 4, basically you are trying to have your halachic cake and eat it at the same time. You want to argue that criteria for death are based on the irreversible cessation of circulation/respiration, but now that this implies something other than what you are used to, you refuse to change the practical criteria. And if you want to exclude circulation produced by chest compressions, are you going to exclude circulation produced by artificial hearts, bypass machines, and transplanted hearts? People who have open heart surgery and are mantained on a bypass pump for an hour or more?
Since this discussion seems to be going around in circles, I will check for replies but will not trouble you by responding further. thank you
Regarding the words issue and evaluation, we disagree. I find my understanding entirely reasonable and a common usage. At least you must agree there was no malice in choosing the title. Furthermore, once you accept that the paper wasn’t going to write an original responsum, as it never set out to do, but rather study the published record, well, once you accept that, you can readily see that the paper is not one sided. It started with a perfectly reasonable premise.
The neurological standard (a.k.a. “brain death”) presents an innovation. As such, in jurisprudence, a convincing case must be made for that innovation. So, the responsa claimed as support for this innovation were analyzed, and their medical information was evaluated. In doing this, the paper has added real value to the field. Now, when we study these responsa, we know what they are discussing, as opposed to only probing the lomdut.
The question of establishing the onset of death is actually a purely moral question, not a scientific one. Insofar as the moral system of though is interested, it can take into account additional scientific data, but it remains a purely moral question. If some Indian tribe believes that comatose people are dead, despite breathing
on their own, which the shaman attributes to spirits from hell that possess a dying person, could we prove to them scientifically that they are morally in error?
Conversely, if some posqim say that a brain dead person is extremely seriously ill, a gosses who will definitely die, but who is still alive, science cannot prove the contrary. It’s a moral question. Hence, in the paper, the scientific data only comes to educate the reader so as to enable him to understand the arguments of the posqim.
If a posseq writes he accepts brain death on the assumption that the EEG is totally, totally flat and that there is zero blood flow, but
neither are true, then the pessaq is of limited use. Perhaps the posseq would agree that even a lesser form of whole brain infarctus suffices, but he surely didn’t write so. That is the kind of information the paper evaluates.
Regarding point 4, no, I am not trying to have my cake and eat it. Halakha is, at its barest, an oral tradition of rulings, not a set of rules. The rules are deducted from the rulings, and only if and when there is agreement on the rules can we then inductively apply those rules in novel ways. Since the authoring of the Mishna, we have progressively written down more, but the essence of halakha remains in the Oral Law.
As the paper demonstrates, since before the advent of artificially supported respiration and heart lung machines, the cessation of spontaneous respiration and of blood circulation were almost simultaneous, there is really no way to definitely prove from the Talmud what the key event is, which marks the onset of death. Is it cessation of spontaneous respiration, or cessation of heart functions? We cannot prove it beyond reasonable doubt, using the Talmud as proof text.
So we are in uncharted waters, and have only orally transmitted halakha to rely on. Clearly, we have a tradition of when someone is considered dead and when he is considered alive. And in recent decades, we have discovered that between definitely dead and definitely alive, there is some room. Well, science still can’t tell us when an individual who is in that grey zone is alive or dead. It remains a moral question. Hence, inclusion the scientific data you’d want to see in the paper would be outside the scope of the paper and ought to be outside the scope of consideration by anyone who doesn’t feel qualified to issue a precedent setting halakhic ruling in a matter of life and death. [But as I repeatedly stressed, the greatest posqim, who are recognized by others as being qualified to set precedents even in these matters, should study this scientific data, and tell us why it is or isn’t relevant to their rulings.]
Since you are my guest on this blog, I will now let you have the last word on this thread.
What is your reaction to http://www.rationalistjudaism.com/2010/12/torah-values-vs-halachah.html
and
http://www.rationalistjudaism.com/2010/12/torah-values-vs-halachah.html ?
Well, the question of whether there is an ethic independent of halakha and what the status of that ethic is when it conflicts with halakha, is a three way disagreement. R’ Slifkin, in the post you linked to, went with an eminently reasonable middle position. He holds that there is an ethic independent of halakha, and that it does not ever supersede halakha, but is there to guide us where halakha gives us that room, or to direct us when two halakhic principles are in conflict which each other. That is a very reasonable position.
o further explore this issue, click on the following link, and read an article by R’ Aharon Lichtenstein.
However, while I agree with his analytic underpinnings, I disagree with the analysis as applied to organ transplants, for the reasons I stated in response to Dr. Stadlan. We do have an established “custom” of jurisprudence on how to determine death. Since we have a definite starting point, we need to hold steadfast by that position until any new, presumably neurological standard on defining is broadly accepted by the community of posqim. This is especially true in the resent case, since if we erroneously declare someone dead and allow harvesting his organs, we would unwittingly be committing one of the gravest sins, murder.
That said, I fully agree that where there is no halakhic objection, we should commit to donating organs. This morning, I discussed with my wife how we should explore the Swiss and EU jurisprudence in this matter to know whether they would respect an organ donor wish that sates that they can only harvest organs and tissues after the patient has died beyond a reasonable halakhic doubt (o.k. it would be worded in a way gentile doctors could understand). Would they use the organs? Would they wait until the patient died properly? If the answer is yes to both, then we should all have such donor cards. If G”d forbid one of us were to pass away and be a possible donor, then the kidneys, corneas, and, I believe, heart vales, too, would all be able to give a new lease on life to endangered patients, and none of this would require accepting “brain death.”
PS: You mentioned two links, but they are both identical.
[…] and Organ Transplantation in Halacha – Redux Recently I posted an entry entitled “When Does Death Begin, According to Halacha?” about a long awaited paper which the Rabbinical Council of America’s Vaad Halacha […]
“Rabbi Dr. Tendler determined that brain-stem death constitutes halachic death; “our rabbis don’t have the necessary background to understand it.”:
http://www.jpost.com/JewishWorld/JewishNews/Article.aspx?id=202260
Thanks. In a backhanded way, that quote confirms the claims of the RCA paper, just not necessarily in the way R’ Tendler intended it.
In the article you link to, he also makes the following relevant observation:
The thing is, based on his published writings, the RCA paper shows that R’ Moshe Feinstein was likely talking about a variety of conditions, but not brain death (except when he wrote one should be stringent to demand cessation of brain activity, too).
I think eventually, there will be no way around it. A couple of small conferences for top posqim will have to be organized, to let them get first hand knowledge of the medical issues both sides of the debate consider relevant, and to ask them to argue the halakhic case for or against brain death, anew, without relying on any of the disputed responsa.
Thanks for your reply!
[…] paper published by the Vaad Halacha of the RCA (for my previous posts thereon, see here and here) has definitely achieved one of its unstated but obvious purposes: it has generated a […]
[…] cannot deny the personal satisfaction seeing how what he wrote nicely dovetails with what I previously posted (no, I do not think that the Chief Rabbi consulted my blog post; I am just happy to see that my […]