288 Responses to Statement re Statement re Brain Death

1. Hirhurim on January 23, 2011 at 10:39 am

   Yonatan: There are two issues. One is that when you have to disagree, to do so respectfully. I do not believe that the phrase “morally untenable” even approaches the level of respect required. The second is that only ba’alei hora’ah muvhakim can have an opinion on matters of this complexity. This isn’t just an issue of forgetting ya’aleh ve-yavo. That said, I fully acknowledge that there are poskim of great stature in both sides of this issue. R. Shaul Yisraeli and R. Abraham Shapira can disagree with R. Shalom Zalman Auerbach on something of this magnitude. R. Dov Linzer is not in that league.

   When I initially objected to this Statement, I thought R. Schachter forbade receiving organs. So he had nothing to do with it. It was disrespect toward R. Shlomo Zalman Auerbach that I was protesting.
2. Joseph Kaplan on January 23, 2011 at 10:46 am

   “If I understand correctly, the point is not that the donor is harvested for a specific recipient but that he will be harvested anyway. Most of the time, there are many potential recipients and any given recipient’s refusal to accept an organ will not change what will happen to the donor.”

   Why is the fact that the participation or non-participation by the recipient will not change what will happen to the donor relevant? If someone says to me “shoot person A and if you don’t I will shoot him and you,” am I allowed to shoot A even though my shooting will not change what will happen to A?
3. Hirhurim on January 23, 2011 at 10:54 am

   These subtle are complicated and different poskim have different ways of approaching them. See here for R. Ahron Soloveichik’s approach: http://www.yutorah.org/lectures/lecture.cfm/735799/Rabbi_Aaron_Soloveichik/Death_According_to_the_Halacha
4. Steve Brizel on January 23, 2011 at 11:18 am

   MDJ wrote in part:
   “The decision to remove very ill patients from life support is made every day in hospitals, and until recently, this had no connection to organ donation because such organs could not be transplanted”

   Ain Haci Nami-Does that remove such conduct as being considered at least a Safek of actively aiding contributing and causing such a person’s death, which may very be an act of Rtzicha Bkum VAseh! Lots of people are murdered every day-is that grounds for rationalizing the acts of the murderer barring the presence of a demonstrated defense such as insanity?
5. Steve Brizel on January 23, 2011 at 11:29 am

   FWIW, back in the early to mid 1980s, Mossad HaRav Kook sponsored an annual Kinnus LTSBP at which many Gdolei Talmidie Chachamim from the US and Israel gave shiurim. I attended a few and recall vividly when RAS, then well before his stroke, spoke from about brain death with none less than RMT present, who sat there shaking bis head and grimacing in open disagreement, to use a polite phrase, with RAS’s presentation. Perhaps, the advocates of brain death and oforgan donation should realize that the issue is hardly a Davar Pashut UBorer and that demeaning opposing views, especially by Gdolei HaPoskim, as well as the authors of the RCA Position Paper and viewing Psak as a process subject to an internet position or a Kol Koreh are errors of a fundamental nature with respect to the issue at hand.
6. Yonatan on January 23, 2011 at 11:50 am

   “One is that when you have to disagree, to do so respectfully. I do not believe that the phrase “morally untenable” even approaches the level of respect required.”

   I do. What’s wrong with it as a valid and compelling argument?

   “The second is that only ba’alei hora’ah muvhakim can have an opinion on matters of this complexity. This isn’t just an issue of forgetting ya’aleh ve-yavo.”

   It would be one thing to say that “only ba’alei hora’ah can *pasken* on matters of this complexity.” But to say they only they can have an informed opinion? That is a recipe for skewed public debate and ultimately for a corrupt Torah society.
7. Steve Brizel on January 23, 2011 at 11:51 am

   Dr Zacharowitz-Just curious- I thought that R Asher Weiss is now the Posek for Shaarei Tzedek. Have you invited R Weiss to speak at the Halachic think tank that you attend and are associated with on this issue? FWIW, would you invite a Posek who supports brain death to speak at the same?

   Unfortunately, I agree that HODS is presenting a biased, one sided and agenda driven agenda so that Torah observant physicians and the as of yet undefined number of Torah observant Jews sho are in need of a transplant can avoid the real issue-that there may very well be a conflict that is beyond resolution between the Harvard criteria which aid and abet the medical and health care community in their desire to treat patients as rapidly and economicallly as possible while avoiding stress to a family, but which may very well be incompatible with a classical POV of death being defined as cessation of respiratory and circlatory function.
8. chardal on January 23, 2011 at 12:08 pm

   >We are not talking about someone on the transplant list who then refuses. We are discussing putting one’s name on the list to begin with. If one person’s name isn’t on it then someone else’s will be, leading to no delay at all.

   That is again not true. This is not a nearly instantaneous algorithm that runs through one set of data and matches it with another. The process of matching donors is a protracted and partially manual procedure and your refusal of the organ (after you have put yourself on the list and have been contacted) will allmost always garauntee the donor some extra time in his life. There is no situation where there will be “no delay at all.”

   >The same exact process will take place, which might be a little quicker or a little longer, but will essentially take the same time. There is certainly no way to know in advance.

   I think that at the moment of the final decision, you know 100% that your refusal will allow the person more “life.”

   >IOW (according to Rabbi Yochanan in Yerushalmi Terumos, who most Rishonim hold like), there is a difference between a Goses, where the remainder of his life may not be curtailed for the sake of extending the life of a young man, vs. one whose natural lifespan is definitely going to be actively curtailed, and allowing him to live whatever short lifespan he has left before the active curtailing thereof, will cause the death of others who would otherwise live out their natural lives, wherein one may hand over that person to be killed (and, by extension, kill him) immediately in order to save the others from death.

   I am not up on this sugya, but is that not talking about a scenario where you must choose a victim from among a group in order to save the group and therefore one must make the unfortunate decision of who should be chosen? How is that in any way like the case we are discussing? In this case, it is two individuals. Isn’t the case you cite also a scenario in which shev veAl Taase will lead to everyone’s death? In this case, the “goses” can sometimes stay alive indefinitly in his state. And further, even if you are right, this would not be a prescription for a leKatchila halachic public policy! You are basically saying that people participate in an institution that is wholesale murder!
9. Joseph Kaplan on January 23, 2011 at 12:22 pm

   “Unfortunately, I agree that HODS is presenting a biased, one sided and agenda driven agenda …”

   HODS admits it has an agenda or, to put it in other words, it has a very specific position which it strongly advocates. But Robby Berman has written here that HODS posts on its website every halachic article on brain death, including ones against it, and that if it is missing any articles it will post them if brought to its attention. In light of that, how can you say that it presents a “biased and one sided” view of this admittedly complex issue?
10. Doron Beckerman on January 23, 2011 at 12:27 pm

    but is that not talking about a scenario where you must choose a victim from among a group in order to save the group and therefore one must make the unfortunate decision of who should be chosen?

    No, the dispute there is where the non-Jews have already selected who they want, like here where the donor is going to die.

    In this case, it is two individuals.

    Who will both die if the organ donor is not killed – like the case there where all (even if they are only two people the same applies) will die if they do not hand over the fellow.

    Isn’t the case you cite also a scenario in which shev veAl Taase will lead to everyone’s death? In this case, the “goses” can sometimes stay alive indefinitly in his state.

    The assumption is that he will be paired with another recipient and killed.

    And further, even if you are right, this would not be a prescription for a leKatchila halachic public policy! You are basically saying that people participate in an institution that is wholesale murder!

    All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable.
    Like I said, I think a distinction can be made between killing someone who is slated to die in order to preserve one’s life, versus in order to extend it –

    [IIUC that's what RSZA means is Minchas Shlomo II:86 -
    נכון הדבר שספק חי נדחה מפני הודאי כמ"ש השטמ"ק בערכין דף ז', וכן טרפה מפני שלם כמ"ש המנ"ח במצוה רצ"ו, אך כל זה דוקא כשיש קשר בין השנים והם תלויים זה בזה אפילו בדליכא שום דין של רודף, וכמו כן בכה"ג שאם לא יהרגו את הספק או הטרפה ימותו שניהם, או כהעובדא דעולא במס' נדרים כ"ב ע"א שמותר לקרב מותו של נוטה למות כדי להציל עצמו שלא יהרג, אבל לא להמית טרפה או ספק גוסס בקום ועשה עבור הארכת חיים של איש אחר, וכמו שאין להעלות על הדעת שיהא מותר לחולה להאריך את חייו במיתת טרפה אף להמתירים להציל עצמו בממון חברו גם בע"כ של בעל הממון.
    but I could be misunderstanding what he means.]

    - but is that the line you would draw between morally acceptable and untenable?
11. Joseph Kaplan on January 23, 2011 at 12:31 pm

    It seems to me that some of the comments confuse two different objections to the “refuse to give but okay to receive” position. One objection is that it is selfish, like refusing to give blood (because you’re too lazy or would rather not have your skin pierced by a needle) but being happy to get a transfusion when you need one. Being selfish, though, is not being immoral; it is a negative character trait that, for example, parents try to teach their children to overcome. And, while it would unseemly, to say the least, if the leadership of a community told its members to act in a selfish way, again, we’re not talking about morality.

    The other objection is where the “morally untenable” comments come in; i.e., if you believe the act of removing a heart from a BD person is murder, how can you as a moral person participate in such an evil act (since, I think/hope, we all agree that murder is an evil act although we might disagree whether a particular act is murder). Participating in evil is not being selfish; it is being immoral.

    While neither of the two (being selfish and being immoral) brings credit to those who are, or who advocate, being selfish or immoral, they shouldn’t be confused.
12. J. on January 23, 2011 at 12:52 pm

    Steve – I simply don’t understand how you can say that the circulatory definition of death is ‘traditional’. Find me one teshuva or peirush from any posek before 1839 (when the Chasam Sofer’s teshuva was written) mentioning cessation of circulation as part of the definiton of death. The addition of circulation (as opposed to heartbeat, which was mentioned by the Rashi and the Chacham Tzvi because they thought it played a role in respiration) was a concession (albeit perhaps an unconscious one) to modernity. Apparently if you’re the Chasam Sofer and you make a concession to modernity, your concession becomes ‘tradition’.
13. Noam Stadlan on January 23, 2011 at 1:02 pm

    Reply to Dr. Z. – Your education and credentials are quite impressive, which makes what you write all the more mystifying. Our job as physicians/scientists is to make sure that the medical information under discussion is accurate. Reb Gil very kindly posted my contribution. one of my logical analyses was published in Meorot. These are the facts as best as I can understand them, having read every single article in the medical literature that I could find on brain death(using pubmed and other search engines). You have not refuted or even addressed any of the information I have posted. I welcome the opportunity to discuss the facts, and if I have made any errors in fact, I am more than willing to admit it. Unfortunately, most of what you post doesn’t address core facts. 2 years ago, in our first interaction, the discussion focused on brain death, and you brought in the fact that patients in persistent vegetative coma(pvs) sometimes awaken. While this is true and interesting, it has nothing to do with brain death, and just confuses those who may not know the difference between the two. You recently at Cross Currents noted that an article on brain death, recommending the possibility of using only one exam instead of two, included in the title that this would increase organs available for donation. Instead of actually addressing the content, you imply that this title proves that brain death is only for the purposes of donation. Even after I explained the article to you, your further comments showed that you either hadn’t read the article, or didn’t understand it.

    I have already explained my use of the word ‘interesting’ but it serves your purposes to again bring a discussion that gives the false impression that I am in favor of removing life support from patients who are not brain dead in order to harvest organs.

    We should all commit to discussing the issue in as factual a manner as possible, addressing the facts with other facts, and not trying to win the argument by confusing the readers.
14. Noam Stadlan on January 23, 2011 at 1:15 pm

    I regret that time constraints do not allow me to continue to read all the comments. I am happy to respond to any questions or concerns. please email me at noamstadlan-at-gmail-com
15. Glatt some questions on January 23, 2011 at 3:01 pm

    Dr. Stadlan makes an important distinction between a person who is in a persistent vegetative state (as Terry Schiavo was)and a person who is brain stem dead. No one advocating taking organs from a person who is brain stem dead would advocate taking organs from a person in a persistent vegetative state. It’s illegal. In fact, many pro BSD folks were probably some of the biggest advocates that the plug should not be pulled on Terry Schiavo because she was still very much alive, even if the quality of her life was not present.

    I also believe there is major confusion even between the terms coma and brain stem death, which has unfortunately contributed to a large number of people being viscerally against brain stem death as halachic death. They know people who have been in a coma and have woken up, and they falsely equate coma and brain stem death…so they viscerally are horrified at the idea of taking organs from brain dead individuals. More education about the distinction is needed.

    To be clear, no one in the history of mankind has ever woken up after being correctly diagnosed as being brain dead. Brain death is not coma, and is not a persistent vegetative state.
16. Meir Shinnar on January 23, 2011 at 3:48 pm

    Several things have been confused.
    1) Definition of death. While Steve Brizel and others still raise it, I don’t know anyone here (including robby Berman of HODS) who have argued with the right and morality of halacha determining the time of death. No one argues that rejecting brain death is immoral. There are questions raised about the tactics used by some of the opponents of brain death in terms of how they deal with the opposing sources – (see Rav Spira’s admissions about rDJB) but not about the intrinsic issue. Anyone who continues to raise that as an issue is being dishonest.

    2) What is at issue is, if one rejects brain death as a valid criteria – are there any implications about receiving organs. It is here that the language of morally untenable is raised – the issue is not about the time of death, but the right to benefit from what one now views as an immoral act (even if it is an act that will happen anyway).

    There are several dimensions to this issue which complicate the discussion

    a) relation of halacha to morality. Hirhurim posted RM WIllig’s post about halacha defining and the only source of morality – and the discussion of that issue is very relevant here, as many people have pointed out, Rav Willig’s position is actually a minority (and extreme, as phrased) position – and the question becomes one of the ability of the general community to criticize halachic issues on moral grounds.
    (BTW, in an unrelated post, Hirhurim posted a post that there shoujld be zero tolerance of immoral behavior by rabbanim – which raises even more acutely the issue of the relationship between halacha and morality – in the opposite direction, as there are clearly world class poskim who would fit the ban…)

    b) who is a gadol – while the list of signatories to the statement about brain death contains some names that are less than luminary, it contains others that are very well recognized in some circles as rashe yeshiva and poskim – even if not in Gil’s circles. As R M Tendler, a recognized posek, has essentially expressed agreement with that position – even if he did not sign the statement – this issue seems far more problematic to emphasize.

    c) Communal versus individual. One issue that has to be confronted is the difference between communal and individual issue – it is one thing for an individual, confronting death, to be willing to do things he might not otherwise do – and for his posek to permit it. It is another to state as a community that we wish to receive but not give.
    The first is one that is understood. If one looks at the Jehova’s Witnesses example, brought by many (albeit a bad analogy – as the shortage of blood does not begin to compare with the shortage of organs) – in general, those who end up accepting do it recognizing that they are compromising their principles – they are not arguing that everyone else should give and they should receive – they are arguing that no one should give – but, facing death, will receive.

    The second is problematic – because it raises an exceptional case to a norm. However, most halachic psakim are given to the individual – and not every posek recognizes the communal dimensions of an issue.

    d) hillul hashem. The last issue is the definition of hillul hashem – and whether we worry about the feelings of the general community – especially when those feelings are based on moral principles that we endorse, rather than reflecting an intrinsic difference in moral principles. The reality is that the position of receiving but not taking is causing a hillul hashem in the broader community – and the defenses raised are not working (regardless of whether one thinks that they should).

    Meir Shinnar
17. Hirhurim on January 23, 2011 at 4:11 pm

    J at 10:05 am re Rav Schachter audio clip: I don’t understand. That’s only a part of Rav Schchter’s analysis and not his conclusion. You can see that very same point in his article in BeIkvei HaTzon, which I will IY”H post tomorrow. It isn’t his conclusion.
18. Shalom Spira on January 23, 2011 at 4:47 pm

    I agree with Dr. Shinnar (-not that the distinguished scholar needs my endorsement), and I thank him for his kindness in citing me as a reference. A review of the tour de force lecture of HaRav HaGa’on RMDT in Israel (now available on You Tube under “Rabbi Tendler Lecture 2011″) reveals that RMDT is quite persuasive in testifying that RMF ruled that brain death=death, and that R. Binyamin Walfish (a member of the audience who is invited by RMDT at the end to speak) is quite persuasive in testifying that RYBS ruled that brain death=death. I believe that any Beit Din Shel Yisra’el would be obligated to accept this testimony as authoritative and true, apropos Tosafot to Yevamot 77a. Both RMDT and RBW enjoy a chezkat kashrut of the highest distinction, and as per the gemara in Kiddushin 80a “soklin visorfin al hachazakot”. [I.e. we decide matters of life and death based on a chazakah.] HaRav HaGa’on RJDB has been refuted regarding the positions of RMF and RYBS. I can’t speak for RJDB, but all I can say (as a student of RJDB) is “tzadkah mimeni” – RMDT and RBW are more righteous than I, and I must concede to them.

    At the same time, totally wrong methodology on RJDB’s part doesn’t necessarily mean totally wrong conclusions. There is the outstanding issue of the position of RSZA based on the Chatam Sofer. At no point in the lecture does RMDT address the Chatam Sofer. He does, however, cite RSZA on several occasions as follows:

    (a) 48:05-48:25 into lecture: In discussing the pregnant sheep experiment, RMDT says that it proved a beating heart is not a sign of life. [S. Spira's response: Actually, RSZA ruled that the pregnant sheep experiment proved that a beating heart is doubtfully a sign of life in the brain dead patient.]

    (b) 51:00-51:40 into lecture: RMDT reports that he met with RSZA many times, and RSZA told him the brain-stem death is death in America. [S. Spira's response: Actually, RSZA ruled that brain-stem death is doubtful death, and since he believed that the Noahide legislature/judiciary enjoys the authority to define the parameters of homicide for Noahides, therefore in America a Jew may register to receive an organ.]

    (c) 57:45-58:10 into the lecture: RMDT reports that he wrote to RSZA and RYSE. [S. Spira's response: And they responded that they regard brain death as a doubt.]

    (d) 1:15:10-1:17:15 into the lecture: RMDT reports that his very distinguished disciple Dr. Barry Hachtoff asked RSZA what is the status of brain death, and RSZA answered that in America, one can receive or give an organ. [S. Spira's response: Dr. Hachtoff, who is a tzaddik gammur, must have slightly misheard (as occurred in the gemara in Shevu'ot 26a where either Rav Kahana or Rav Assi misheard what Rav said; as well as the gemara in Niddah 36b where Rav Assi misheard what Rav told him on Rav's deathbed). What RSZA actually told Dr. Hachtoff is that one may receive an organ, apropos RSZA's chiddush of how the Noahide Code operates. RSZA never permitted a Jew to give an organ, neither in Israel nor in the Diaspora.]

    Given the above responses of S. Spira to HaRav HaGa’on RMDT, we see that the status of brain death is apparently a safek. The one point on which I am strongly inclined to accept RMDT’s disputation of RSZA is (as already mentioned) the conversation at 1:25:40-1:27:00 into the recording, where RMDT does not distinguish between the laws of homicide for Noahides and the laws of homicide for Jews.

    I think it is obvious that Richard Joel, R. Moshe Kletenik and the chief justice of Israel’s supreme court enjoy a moral obligation to invite the Gedolim whom they employ to meet face-to-face, for a conference aimed at reaching unanimous consensus on this matter for which all of humanity looks to the Sages of Israel for moral guidance, which is a sanctification of the Name of Heaven.
19. J. on January 23, 2011 at 5:10 pm

    I would add that R. Tendler is convincing in his claim that the Chacham Tzvi’s teshuva does not provide support for his opponents, inasmuch as it is clearly focused on the heart as aiding respiration, and not on the heartbeat per se. However, although he responded to R. Bleich’s critique regarding a polio patient who cannot breathe spontaneously, yet we still regard him as alive (he is not shocheiv ke’meis), he did not deal with R. Bleich’s next point regarding, say, a polio patient who is unconscious, who should surely be alive, unless we take the autonomous respiration criteria literally (R. Dovid Feinstein is quoted in the RCA document as affirming that we would actually regard such a person as dead, but this is not the mainstream opinion). If the criteria is spontaneous respiration together with shocheiv kemeis, there are many such people who fulfil both who are not at all brain dead.
20. IH on January 23, 2011 at 5:10 pm

    Regarding RSZA: does anyone dispute as fact that RSZA prohibited receiving BSD organs in Israel (where Jews happen to be 75% of the population), but (per the letter to R. Feivel Cohen) permitted receiving BSD organs in the US (where Jews happen to be 2% of the population)?

    To the extent the Va’ad Halacha depends on RSZA precedent, this is *the* salient issue in the debate on the phraseology of “morally untenable”.
21. Shalom Spira on January 23, 2011 at 6:20 pm

    R’ J.,

    Thank you for your kind support and the excellent question. On this point (viz. why is an unconscious polio patient alive) I can advocate for HaRav HaGa’on RMDT (not that he needs my defense). Since the polio patient may eventually regain consciousness, the polio patient has not met the criteria for death. The criteria for death (absence of motion, respiration and – the big question mark of course – circulation) are only met when they are irreversible, as Chatam Sofer indicates in his responsum. It is only in the brain dead patient (when confirmed with a rigorous protocol) that we know with certainty that the loss of consciousness is irreversible.

    And how do we know that loss of consciousness is a criterion for death? As demonstrated by Dr. Stadlan, it emerges from the gemara in Menachot 37a, particularly as elaborated by Shu”t Avnei Nezer, YD 399 (sec. 3). As mentioned in R. Shlomo Moshe Amar’s responsum, this is also inherent in the commentary of Vilna Ga’on as well as Tiferet Yisra’el to the mishnah in Ohalot 1:6.
22. Y. Aharon on January 24, 2011 at 1:04 am

    I disagree with virtually everything that R’ Gil stated in his comment on 1/23 10:39. I won’t attempt to compare Rav Dov Linzer’s capabilities in analysis and p’sak with the cited prominent Israeli poskim since I am not qualified to make such a judgement. The same, I believe, can be said of anyone posting here. The fact that someone is considerably younger than the cited poskim doesn’t carry the implication that he is therefore unqualified to rule on life and death issues. The issue is not so complex, as R’ Gil would have you believe, but bears grave consequences (not a pun). Moreover, age doesn’t necessarily translate to better judgement, and lack of sufficient familiarity with relevant and current medical practice and knowledge can make such judgements irrelevant.

    The issue of disagreeing with important poskim in a respectful manner is also not relevant in this case. When the world reads that important religious Jewish figures disallow the brain-stem ‘death’ criterion for organ donation but allow it for organ recipients, it creates ill will towards Jews and demeans the standing of Jewish law in their eyes. If we are allowed to violate shabbat in order to avoid such ill will then we should certainly be allowed to use the term “morally untenable” in referring to the brain-stem dichotomy. Especially since none of the adherents of that position were named.
23. chardal on January 24, 2011 at 2:20 am

    >No, the dispute there is where the non-Jews have already selected who they want, like here where the donor is going to die.

    Then I don’t understand the passage you quoted which says:

    ”מ כיון שא”א להציל חיי שעה שלו בלא שיהרגו כולם נדחו חיי שעה שלו מפני כל החיים של השאר

    How is this in any way applicable to this case. And even if you are right that it is a comproble situation, then surely the factor of time is relevant. The case above is one in which once a person is chosen, then he is murdered at the same time as any other person. In the case of organ donation, your presence or lackthereof on the list can mean an extended lifespan for the donor as long as no other match is found.

    >In this case, it is two individuals.

    Who will both die if the organ donor is not killed – like the case there where all (even if they are only two people the same applies) will die if they do not hand over the fellow.

    No no no. In this case, there is no immediate direct and active danger to the receipient that is in any way comprable to the case above. How can one even compare a scenario of hostile bandits to this scenario is amazing. If, you do not participate, then you will die of natural causes, not at the hands of the same agents who are threatening to murder. Futher, your absence from the list MIGHT lengthen the life of the donor.

    >The assumption is that he will be paired with another recipient and killed.

    Probably he will, at a later point in time. A lot of factors have to come together for this to happen.

    >The assumption is that he will be paired with another recipient and killed.

    But this assumption is not true for a singular point in time.

    >All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable

    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis. But for the rest of us, there needs to be an alignment between basic moral principles and halacha and we often see the violation of these basic moral principles as one of the prime sources of chillul Hashem in the world.

    I think that it is obvious to most thinking people in the world that the question above is a primarily ethical question. One can not seperate the meta-halachic ethical concerns from the halachic legal ones. And any attempt to do so leads to the kind of pilpul in which you engaged above which comes to conclusions such as “its not ok to give organs, but it is ok to murder someone to get organs since he will anyways be murdered by someone else.”

    All the arguments presented so far in favor of the “don’t give/receive” work under a model in which there is this abstract pool of people where one will surely be murdered and we must only choose who will be saved. This is not the case in reality. The connection between the donor and receipient is very strong – to the point that the doctor is legaly removing the organs ON BEHALF of the receipient in american law. He is not being “murdered” stam!

    On a final note, I would like to point out something that seems to be lost on those who would use halachic sophistry to justify that which is abhorant to the ethical instincts of most thinking people. You are literally being mevazeh the Torah when you do this. One need not get into intelectual gymnastics to understand why for the average thinking person, the idea of someone being unwilling to donate organs because it is murder while at the same time being willing to have others murdered on his behalf for their organs is a repugnant idea. I ask you this: would you present this idea to a thinking gentile whom you would not expect to accept your pleas to authority or your demand of respect for the positions of your sages? Do you think that when you present this idea, you would be increasing the kavod haTorah in the world or painting it as a legalistic ethicaly stunted system? In a world where quoting an assertion by R’ Moshe or RSZA is simply useless, can you support your argument based on universal ethical concerns? And if not, do you realize that by detaching your decisions from such concerns, you have made the Torah irrelevant to 99.9% of the worlds population?

    The attitude presented above is precisely what RYYW bemoned in his letters and what caused his depression later in his life. He realized that his advocation of the Meiri as the normative psak in areas of great ethical concern were not so strong from a purely halachic perspective but he hoped that religious Jews would recognize the ethical imperative in the Meiri’s derech. The fact, that most religious Jews, when in private, laughed at the use of the Meiri as normative because it did not fit into their pure halachic analysis caused him great pain and pessimism about the future relevancy of the Torah world. The arguments I see above are a continuation of the attitudes that he was bemoaning. (and I have a feeling that the destrinctions between Jewish life and Gentile life in pure halacha have not made it into this discussion ONLY because there is still left in some people a minimum of universal concern for the ethical implications of such a postion, although it can probably be justified on pure halachic grounds)
24. J. on January 24, 2011 at 2:45 am

    R. Shalom – thank you for your answer. It would seem, however, that even taking the additional criterio of ‘irreversability’ into account, we still have not found an answer for a polio patient in PVS – such a person cannot breathe spontaneously, they are shocheiv kemeis and their condition is irreversible – can we say that such a person is dead?
25. Doron Beckerman on January 24, 2011 at 7:33 am

    I have plenty to respond, plenty, but once you say this:

    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis.

    what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.
26. chardal on January 24, 2011 at 8:33 am

    >what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.

    I was just rephrasing your statement “All I’m saying is that I shy away from determining who lives and who dies based on extra-Halachic factors stated to be morally untenable”

    This is not the only such statement in this discussion. Most of the critiques of the steps taken by the pro BSD camp have decried its “extra-halachic” methodology. In fact, the mainstream approach in the yeshivish world seems to be that any extra-halachic considerations whether ethics or psychology or and other fields should not be involved in the halachic process – which is the sole decidor of what public policy should be. Of course, chareidi rabbinic leaders often use meta-halachic rational in their decision making, but always hide it behind some sort of daas Torah ideology.

    What I write is not bigotry, but rather what I have seen from my interactions with members of this society. I am sure that some members disagree with the party line but they do not let themselves speak out. Mind you, I am not saying that the thought that is valued by the chareidi world in unethical – rather that ethics as an independant discipline have almost no value in chareidi society. In fact, many of the criticisms of the mussar movement (and I would argue that the critiques have one the battle) were very simply that learning classic Jewish ethical texts is a waste of time and that a true “ben Torah” will get his ethics from his gemara and halachic learning. This super-nominic approach to thought results in many social ills among which are the sort of streched moral arguments seen above.

    Now, if you think that the correct approach is to pretend that chareidi society regularly produces complex and nuanced responses to contemporary ehtical issues and problems, and I wish I could agree. Unfortunatly, I have not seen any evidence of such thought. If you could point me in the direction of where in chareidi thought, abstract ethical issues are brought to bare in a transparent manner on public policy decisions, then I would gladly retract my statement to the contrary.
27. Shalom Spira on January 24, 2011 at 9:04 am

    Thank you, R. J., for the important question. A PVS patient can breathe autonomously, as illustrated by the American law cause-célèbre episodes of Karen Quinlan and Terri Schiavo. In the case of the PVS patient, the brain stem continues to function, and so autonomous respiration is still possible. By contradistinction, it is precisely in the brain dead patient that consciousness as well as autonomous breathing are irreversibly neutralized. Thus, a reasonable argument can be advanced that a brain dead patient is possibly dead.

    The key question is whether we are prepared to jettison RSZA’s interpretation of Chatam Sofer. To that effect, the Eytan Shtull-Leber essay is of prime importance. [I thank R' Anonynmous and Dr. Stadlan for bringing it to our attention.] The essay claims that the circulatory arrest bespoken by Chatam Sofer was only required in order to confirm the irreversibility of respiratory arrest. If that interpretation of Chatam Sofer is accepted, then in our era with our sophisticated understanding of brain death, we could bypass Chatam Sofer (and RSZA who was relying on Chatam Sofer), since we anyway know that respiratory arrest is irreversible.

    The key claim of the Eytan Shtull-Leber essay is the following passage on p. 54:

    “Rabbi Schreiber demonstrates that he also agrees with Maimonides that the traditional respiratory criteria are insufficient in that the cessation of respiration is not always irreversible. Rabbi Schreiber therefore made an addendum to the law, requiring both the absence of pulse and breathing in order for a person to be declared dead.”

    This is markedly different than the interpretation of R. Shabtai Rappaport in his HODS interview (and also his debate with R. Tzvi Flaum, also on the HODS website), who explains that the Chatam Sofer identified circulatory arrest as necessary because circulation is the final manifestation of the benefit of the last breath taken by the person. According to R. Rappaport’s interpretation of Chatam Sofer, the Pesach cow lactation analogy becomes appropriate, thus vindicating RSZA’s ruling that a brain dead patient is doubtfully alive by virtue of his circulation. [I appreciate the fact that R. Rappaport subscribes to his father-in-law's ruling that a brain dead patient is definitely dead, and that R. Rappaport therefore disagrees with RSZA. But R. Rappaport has actually performed a kindness for RJDB's camp by immunizing it against the powerful argument presented by the Eytan Shtull-Leber essay. For RJDB will now be able to counterclaim that Chatam Sofer was balancing Yoma 85a with Kiddushin 24b/Niddah 69b, rather than only relying on Yoma 85a. In other words, RJDB will counterclaim that although Chazal seemingly did not understand the details of circulation (since they lived before Harvey), they had some vague appreciation of the phenomonen of circulation, in the sense that they knew that a limb withers when deprived of blood, and that the body as a whole decomposes when deprived of (moving) blood. Thus Chatam Sofer thought that respiration has not legally ended until the circulation which is driven by respiration also stops.]

    The conversation between R. Beckerman and R’ Chardal – who are both tzaddikim gemurim – illustrates just how important a conference of Gedolim is. That conference will have to arrive at a unanimous conclusion how to interpret the Chatam Sofer correctly.
28. J. on January 24, 2011 at 9:25 am

    Thank you R. Shalom, for responding to my question. Anonymous (in the earlier discussions on this topic) was me, BTW. I was referring specifically to the case of someone with both polio and PVS, such that they cannot breathe autonomously, and are ‘dome le’even’. Is such a person considered alive according to RMDT?
    I think it’s a big chiddush to say that the Chasam Sofer was referring to the din of a bird whose wing had withered – it seems that he (or the chevra kadisha’s who had instituted the ‘pulse’ test) was simply aware of the scientific deficiencies of using respiratory criteria alone. Especially in light of the fact that references to circulation do not appear in earlier tests of death (we have several such descriptions throughout the centuries), it seems strange that the Chasam Sofer’s teshuva, which was more procedural than anything else, and is clearly based on modernistic conceptions of human anatomy, should be considered the timeless Torah definition of death.
29. J. on January 24, 2011 at 10:07 am

    Just as an addendum to my previous point, I’m certain that if RMDT was stuck with someone on a desert island (with no medical equipment except a feather) and that person ‘died’, he would measure his pulse in addition to using the traditional ‘respiratory’ method, as would we all. I’m sure that if he was describing how he knew that this person had died, he would mention the fact that his pulse stopped (as the Chasam Sofer does, and as any paramedic would tell you they would ascertain someone’s death, absent more sophisticated medical equipment). I don’t think this means that they consider heartbeat (inside a ‘body’ – whatever that means) the be all and end all of the definition of life; it is merely how you ascertain someone’s status. To suggest that all the early sources mean that breath is merely an indication of life, which is really defined by cardiac activity, goes against all the textual and historical evidence of Chazal’s intentions, and the simple peshat of the Rambam and Shulchan Aruch, who pasken ‘ad chotmo’. The Rambam is the one who introduced the concept of waiting ‘shema nisalef’ (in Hilchos Aveilus). Nevertheless, he sees no contradiction between not seeing immediate cessation of respiration as an indication of certain death, and a pesak which sees the breath of the nose as being kovei’a – heartbeat alone seems to be of no significance per se.
30. IH on January 24, 2011 at 10:16 am

    The debate about Brain-Stem Death as Halachic Death will continue. But, the pressing issue is the notion that Jews should be prohibited in donating, but permitted to accept BSD organs.

    Given the silently acknowledged facts regarding RSZA I summarized yesterday at 5:10pm , then the question remains about whether it is disrespectful to acknowledge these facts publicly (“100 rabbis call ruling by R. Shlomo Zalman Auerbach morally untenable”). It does not seem to me that it is.

    First, given the 1992 Jerusalem Post report that RSZA was not fully convinced by either extreme position. As evidence came (late in his life) in he shifted one way and then the other.

    Second, in regard to being restrictive in Israel, he knew that Jews could choose to rely on the permissive psak of the Rabbanut Rashit (as RAL appears to, from the earlier discussion here). Thus, it was logical for him to be restrictive on both donation and receipt of BSD organs in Israel.

    Third, in regard to being permissive in the US, this was a psak – that while eventually published – was in response to a specific US posek’s request to RSZA regarding himself. It is entirely understandable that RSZA would be permissive in that case given the person involved and his own ambivalent thinking on BSD organ transplants.

    Net net: there was nothing “morally untenable” about RSZA’s separate piskei din as they occurred in time and place; but, the Va’ad Halacha’s use (explicit and silent) of the grouping of RSZA’s psakim, without carefully delineating their context, can legitimately be called to account – as it has.

    It would be wise for the Va’ad Halacha to issue an addendum to resolve this sooner rather than later.
31. IH on January 24, 2011 at 1:36 pm

    Confirming evidence of my second point:

    [Director of the late Chief Rabbi Shapira's office, Rabbi Eisman said] “He personally witnessed a number of instances, he said, in which Rabbi Elyashiv and Rabbi Shlomo Zalman Auerbach, another Hareidi decisor who opposed the brain-death criteria, referred questions to the Chief Rabbi’s office. “They did not want to rule on the matter themselves, so they sent the question on to us, knowing what the answer would be.”

    http://www.israelnationalnews.com/News/news.aspx/141877
32. Shalom Spira on January 24, 2011 at 7:30 pm

    R’ J.,

    Thank you for refining the PVS question, which requires me to refine my answer. Even in a case of a polio patient with PVS, I think we can explain why the patient is alive according to HaRav HaGa’on RMDT: since PVS is a potentially reversible condition (as I gather from the Wikipedia entry on PVS), therefore the patient is not dead. Wikipedia reports that some patients awaken from PVS after many years. By contradistinction, it is only in the case of brain death that we know with certainty that consciousness and breathing have ceased irreversibly. No patient has ever awoken from brain death [-at least not when diagnosed based on the rigorous protocol that officially defines brain death. N.B. in his 2006 lecture on the subject (11:20-12:30 into the recording) RHS remarks that there are at least 150 different protocols among hospitals around the world as to how to diagnose brain death and so there is no actual "official" brain death definition, and thus no certainty that "brain death" even means brain death.
    http://www.yutorah.org/lectures/lecture.cfm/716089/Rabbi_Hershel_Schachter/Time_of_Death:_Cardiac_Death_in_Jewish_Law

    However, HaRav HaGa'on RHS does not possess a medical degree (nor does he claim to do so), and so I will assume that the expert physicians who work in hospitals on a daily basis always know how to diagnose brain death with certainty.)

    Regarding the knowledge of circulation in the times of Chazal, I have found the following discussion in "Medicine's 10 Greatest Discoveries" co-authored by Meyer Friedman, MD, and Gerald W. Friedland, MD (Yale University Press, 1998). In the second chapter, entitled "William Harvey and the Circulation of Blood", Friedman and Friedland write as follows (commencing on p. 18):

    "Thousands of years before the Englishman William Harvey was born, Egyptians, Greeks, and Romans not only were aware of their beating heart but attributed it to the dominant role in their spiritual and emotional activities. They believed that if humans possessed a soul, it resided in the reddish mass that pounded perpetually in one's chest. But they never troubled to find out what the beating was all about, even though they recognized that once the beating stopped, life would stop - and the soul residing in that beating heart would vanish.

    "Further, no Egyptian, Greek or Roman understood what relation if any a person's blood had to this pulsating organ the size of a hand. Their essential ignorance of the functions of both the heart and the blood sprang from their failure to dissect a still-living animal [sic - and with good reason, to avoid tza'ar ba'alei chaim (S. Spira's comment)]. They had never directly observed the contractile and sequential movements of a living heart and the course of the blood in both veins and arteries. Their only knowledge of the heart and blood vessels derived from inspection of the dissected organs and tissues of human corpses. Unfortunately, the arteries of a corpse never contain blood, because when the heart ceases to beat and eject blood into the arteries, the latter contract and push all their blood into the veins.

    “Thus, the Egyptian, Greek and Roman ancients, seeing no blood in the arteries of their dissected corpses, assumed that such vessels during life contained only air. Since the veins of these corpses always bulged with blood, particularly the veins entering and leaving the liver, early physicians concluded that all blood was made by this organ, which then furnished its blood, via the veins, to the other organs of the body. Recognizing that the heart must play some role in the body’s economy, they postulated that it imparted a “vital spirit” to the blood entering and leaving the two chambers, or ventricles. They did not know exactly how blood entered the heart, how it traveled from the right to the left ventricle, or where it went after leaving the heart.

    In the middle of the second century of our era [sic - Jews do not count time this way (S. Spira's comment)], the Greek physician Galen made a revolutionary discovery. He observed that the right side (or right auricle) of the heart received blood from the large veins emptying into it, and that this blood was then ejected by the right ventricle into the lungs via the pulmonary artery. He further observed that the lungs drained this blood into the left side of the heart, which in turn pumped it into the aorta, the major blood vessel leaving the left ventricle.

    “Galen made two other cardiovascular discoveries of transcendent importance. He recognized that the heart was essentially a mass of muscles whose contraction pumped blood to and through the lungs to the left side of the heart, which in turn pumped into the aorta. In short, he recognized what the heart was: a pump.

    “His second great discovery was that, contrary to the belief of his ancient Greek and Roman forebears, arteries did not carry air; they carried blood…

    …Physicians for more than a thousand years [after Galen] believed that his descriptions depicted the cardiovascular functions of an animal, not of a person. As a consequence, these most important observations of all the hundreds of medical phenomena described by Galen in his voluminous writings were not accepted as applicable to the human heart or its blood vessels. Galen erred, moreover, in continuing to believe, as had his Greek predecessors, that the liver not only formed the body’s blood, it also pumped it to the rest of the body.

    So, for fourteen centuries after his death, although Eurpoean physicians scrupulously accepted every one of Galen’s other observations and concepts, the structure and functions of the heart, arteries, and veins continued to be matters of fantasy – precisely as they had been prior to Galen’s discoveries. His observations were not lost; they remained securely, if obscurely, entrenched in his surviving writings.

    They were rediscovered in the middle of the sixteenth century by the Michael Servetus, a Spanish physician…[whose information was later elaborated upon by William Harvey."

    [S. Spira's conclusion: According to the above text, in the time of Chazal, there appears to have been a vague appreciation of the fact that blood moves in the human body. The function of the arteries was totally misunderstood by all scientists other than Galen, but the function of veins as transporting blood was known (albeit in a flawed manner). I think this (maybe?) serves to support RHS's assumption that Chazal were aware of the motion of blood through the body.]
33. Meir Shinnar on January 24, 2011 at 10:20 pm

    R Doron Beckerman in response to
    All you are saying is that abstract ethical thought is not part of your decision making process. Which is to be expected for the society in which you live – which have pretty much devalued any intelectual discipline other than halachic analysis
    said
    what you have here is unadulterated, bald, red, hostile bigotry coming from someone who purportedly values abstract ethical thought. I’ll leave you be.

    I am curious – what is it you see as defamatory in this statement? restating it just by reordering, for your society (israeli haredi), the only intellectual discipline that is valued is halachic analysis, and abstract ethical thought (eg, in this context, one that is not linked to an explicit halachic analysis) is not part of the decision making process. This seems a fair statement of the values in which Israeil haredi society actually revels in – and criticizes others for incorporating other values or other discipliness. this is part of the thrust of the aguda statement (the basis for this thread) as well as the main thrust of the Hirhurim post of the lecture by Rav Willig arguing that ethics has no meaning outside of halacha (actually, he is even stronger..)
34. J. on January 25, 2011 at 2:33 am

    R. Shalom – the fact that they were aware of this doesn’t mean that they thought it had anything to do with the heart, or with the definition of life.
35. Doron Beckerman on January 25, 2011 at 12:05 pm

    Dr. Shinnar,

    I have no wish to debate Chardal on this, although I am quite certain he will respond, but I will not.

    1) I do not consider myself part of Israeli Charedi society. There are elements of it I greatly respect, and one could more or less fairly say I chose it as my “major”, in Joel Rich parlance, and elements I am quite critical of, and very upset about. See R’ Slifkin’s latest post on Olam Hafuch for a “shining” example.
    2) There are differences between being part of a stripe of Charedi society in a functional, vs. ideological, vs. sociological sense. I am certainly 1, on most issues, but far from all, 2, almost not at all 3, and vehemently opposed to attempts at turning what should be 3 issues into 2 issues, v’hameivin yavin.
    3) I am not talking about defamation.
    4) I cannot imagine how one cannot see at least three MAJOR differences between my statement and Chardal’s prejudiced “rephrase”. “Shy away”, “who lives and who dies”, “stated to be” are sharply distinguished from “abstract ethical thought not being part of my decision making process”. Fitting my statement into that broader perspective is red, raw bigotry and prejudice.

    There’s so much more to say to Chardal’ substantive points, but I am not engaging him in discussion. Anything I say will probably turn into a rant about how Charedim are scum, which is unfortunately part of Chardal’s thought process.
36. Doron Beckerman on January 25, 2011 at 12:07 pm

    “Chose it as my major” – I mean broader Charedi society, not Israeli.
37. chardal on January 25, 2011 at 1:21 pm

    Just to respond. I do not think that Chareidim are scum.

    Some are as are some people from any society. I do think that the the position of don’t donate/receive is a scummy one. Although many non-scummy people have scummy opinions about one thing or another.

    Further, if you wish to distance yourself from chareidi society ideologically then yashar koach. But it is not about you. I was simply responding to the attempt to use non-analogous ethical scenarios from the gemara and shu”ts to justify the participation in a medical system that according to your own shita is wholesale murder for organs. In fact, I don’t see how, if taking organs from BSD patients is both murder and ok … then why not harvest them from chinese criminals – after all, if you don’t get their organs, someone else will!

    It seems that not everyone sees my comments as bigoted, they were simply not meant that way. But I have noticed more than one time on this thread and others of its kind that the moment someone has strong criticisms or words for mainstream chareidi opinions, especially if they are espoused by the gedoilim, then the response is often to accuse the critic of bias, biggotry, or even antisemitism. It is the unfortunatly a tactic that smells more of desperation than anything else.
38. Establishing the Onset of Death in Halakha III « Rabbi Arie Folger’s Blog on February 10, 2011 at 6:36 pm

    [...] “brain death,” and the Agudath Israel’s statement against. R’ Gil Student commented with his own critique of that [...]