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Brain Dead

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There has been a running controversy in circles that are committed to Jewish Law over “brain death”. Traditional sources require the heart and lungs to stop functioning. In olden days a mirror or a feather to the nose was the best they could do. Times have changed. Medical science has advanced and “brain death” has now been added to the halachic as well as the medical lexicon. It is of particular significance when it comes to transplants. Waiting until the heart finally runs down can be too late for some organs to be useful to others.

A great deal of halachic discussion has gone on ever since Rav Moshe Tendler, son-in-law of the late Rav Moshe Feinstein, and a qualified doctor as well as a halachic scholar, first suggested accepting brain death in principle. The fact that he affirmed he had his father-in-law’s agreement added weight to his position. There was a furor at the time, as there always is when anything new crops up in traditional circles; but over time more and more experts joined him.

Indeed the whole issue of transplants and organ or skin banks has been dealt with extensively in halacha, and given that new issues and refinements are emerging all the time, there is a massive amount of material readily available on the subject. But equally, opinion is still divided, largely because of the fear that doctors might rush to declare death prematurely when they want to get organs to recipients as quickly as possible. And there is still controversy over definitions. Still, the fact that there might be rogue doctors should not detract from the fact that brain death in principle is approved of by more real halachic authorities nowadays than not.

You might recall the tragic case of Yoni Jesner, a highly gifted young man cut down by a suicide terrorist in Israel some years ago. His courageous and religious family took advice from halachic experts and donated his organs, one of which saved the life of an Arab child. Around the Jewish world the issue of organ donation suddenly became a popular topic. More and more rabbanim encouraged Jews to carry donor cards, and specifically religious organizations sprouted to cover all religious reservations.

In Israel, provisions were added to the national donor card system to encourage religious Jews to participate. But sadly, Jewish religious life being what it is nowadays, there has been a reaction against change and progress. It is really political, not spiritual. And strict halachic positions are often taken to be used as a bargaining tool, particularly in Israel, for political or financial gain.

Cadres of new wonder, miracle, mystical rabbis make money out of the pain and helplessness of the sick and dying and their families, promising cures and hocus pocus in exchange for reward. They too have joined a trend against organ donation and accepting brain death, citing irrational and superstitious reasons.

A year ago a very good friend of mine, Rabbi Yossi Raichik, died in Tel Aviv when a transplant would have saved him. An organ was ready at hand, but whereas his rav approved the exchange, another one objected. The family buckled, and Rav Yossi died.

To make matters worse, the world shortage of organs has led to an unsavory black market in human organs. Too often it’s one-way traffic in which the rich benefit at the expense of the poor and too many people are more willing to take from others than contribute themselves. This is the main reason why so much effort has been put into encouraging Jews to donate or carry cards.

The increasingly hard line Rabbinical Council of America recently published a position paper in which it gave both points of view–those in favor of brain death and those against. It decided not to take a definitive position. Many people regretted this act of moral cowardice, but one could at least understand that in a case of differing opinions it is only fair to give both. Still, a recommendation would have been in order. But fear now stalks the rabbinic world and it is hard to judge those who are frightened.

By way of contrast the London Bet Din, the authority for the majority of British Jews, took a definite stand with the extremists. It declared, simply, that brain death is not acceptable. No mention of different views, no qualification. The Anglo Chief Rabbi, who one expects to have a better sense of moderation, chickened out yet again. In typical Anglo fashion, you say “no” first, then backtrack. And in equally British fashion, express outrage that you are “misquoted”.

All the Beth Din needed to do was to state clearly and simply that Jews can donate organs but that they also need to take steps to ensure that the halachic parameters for brain death are adhered to. Brain death is a halachic option but there need to be safeguards and expert halachic advice in each case. But in effect they did it the wrong way round. Another public relations disaster, and once again thinking, moderate Orthodoxy has been failed by its leadership and has shot itself in the foot.

21 thoughts on “Brain Dead

  1. Sadly, Jonathan Sacks, a man of great intelligence, academically speaking, has given up saychel in deference to the London Beth Din who are
    about as reactionary as one could fear. It's och and veh to moderation and decency of spirit. Would you care to put yourself forward for the Chief Rabbi's position when he retires? You've probably got too much saychel even to consider it!

  2. R' Rosen,

    To me it seems that you (as well as those who signed this position statement) skipped a step.

    Societal need is an issue only after finding both rulings plausible. Only then, when one evaluates the pros and the cons of each ruling, the morality of the outcome is relevant.

    However, if one finds the grounds for defining death in terms of cessation of brain stem activity to be invalid, the fact that the outcome is lamentable is sad, but unchangeable.

    One can't say that the piquach nefesh (threat to life) for potential organ recipients overrides halachic process when the whole question revolves around whether an equal matter of life-and-death exists pushing against the donations.

    -micha

  3. Micha:
    You are right, Pikuach Nefesh (saving a life) won't work here because Ein Dochin Nefesh Miponei Nefesh, you are not allowed to make decisions about which life to save (though in fact, and halachically, doctors when faced with several demands on their time expertise and equipment do in fact, make such judgments). The issue is indeed simply one of accepting Brain Death. The question is why the opposition? Is it logical? Superstition? Medical? Meta Halachic or Political? I suspec at root it is the fashionable tendency to go for strictness and NO rather than lenience and YES. There was a time when safeguards were not in place. They are now in most societies so theres really no justification other than saying 'Its New so I dont like it.'
    J

  4. It's a weird case of "ein dochin…" because the whole machloqes (dispute) is about whether there is a second nefesh involved. We're talking about taking sides not in a case of "ein dochin" but about whether it actually is such a case. Anyway…

    I am quite pessimistic about the state of pesaq and what passes for gedolei Torah since Ta'anis Esther 5746 (Mar 23 1986). But there has to be some continuity of Torah sheBe'al Peh (Oral Torah). We have to live with what we got, as breaking that conversation that flows down the generations is far more costly.

    I also would have thought that insisting that organ donation is rarely possible is a leniency.

  5. Surely if there is even the slightest possibility in Halacha that there is even a sfak sefeika of Pikuach nefesh then you have to turn to the side of Chumra. therefore the LBD would be right on this one

  6. Black's, as I tried to explain earlier, in the case where the person is a potential donor of a vital organ, it's messier than that.

    On one side, there is a chance — not a certainty — of saving a life. (Doubt in physical outcome.)

    On the other side, there is definitely doing something that may be murder. (Doubt in halachic status.)

    -micha

  7. micha:

    Isn't there is a chance, rather than a certainty, of prematurely ending a life?

    In other words, either choice is questionable. So each side involves a possible stringency (or leniency)–either failing to save a life or cutting another life short.

  8. ss: I'm not sure what you're asking. Both sides have doubt:

    One is definitely doing something that may or may not be killing — an uncertainty in the halakhah. We know what will get done, we don't know it's significance. The other is doing something that may or may not save a life — an uncertainty in outcome.

  9. micha:

    I guess I see them *both* as involving halachic uncertainty.

    Since we are not yet sure if the person is really dead, we could possibly be ending a life prematurely (which would not be permitted).

    On the other hand, if we do not provide the organ, we could be guilty of failing to save a life (which would also not be permitted).

  10. We have no halachic uncertainty on the second side. We know we are obligated to do everything possible to try to save that life. The only uncertainty is whether or not it will succeed. There is no doubt as to what each outcome for the recipient means halachically, just a question as to which outcome we will have.

    IF removing the heart is killing the first person, that's definitely killing for the sake of a chance of saving another. There is no doubt about the outcome to the first patient, only about what that outcome means.

    Getting back to the point, an error in either direction means lives lost. There is therefore no way to call one side more stringent or more immoral than the other.

  11. micha:

    OK, I see what you are saying. But in that case I don't see either case as having halachic uncertainty.

    Because hastening the end of someone's life (by prematurely removing their organs) is certainly not allowed.

    But I definitely agree with your final point–that neither side is more or less stringent, since both sides involve loss of life. That was the point I was trying to make to you originally.

  12. Person one will definitely lose heartbeat if we act. Physical impact of what we're doing is known. We don't know whether or not that's halachically significant.

    Person two may or may not be saved. We know the halachic significance of saving them, if we succeed. There is no halachic uncertainty about the question of their life.

  13. micha:

    My compliments on a very interesting and civilized discussion.

    I want to take a slightly different tack.

    In truth all halachic decisions must be ad hominem and take specific circumstancres into consideration.

    There is therefore a practical difference between halacha and psak. The Law and a Judgment.

    We know the halacha in the issue of Brain Death, unlike say, adultery or lighting a fire on Shabbat, is in dispute. Not to recognize this, to imply the halacha is fixed and unanimous is dishonest.

    This is the issue here. A rabbi who in principle might accept Brain Death could well rule against Brain Death in a specific set of circumstances. And vice versa.
    The RCA statement while leaning towards the negative position still recognizes possibilities and leaves it up to the individual Rav to give a psak.

    The London Beth Din partially because of the specific hierarchical authoritarian nature of Anglo Jewry but also because of its natural, conservative mentality (and arrogance I dare to say, as well as sycophantic need to be accepted by the right right wing even tho the right wing will never accept them for taking 'The Queens Pence') simply rules against Brain Death unilaterally. It categorically comes down on one side.

    This difference is perhaps one of style but it is typical and crucial and it explains precisely why I was never willing as a rabbi in the UK to take a position that would hold me hostage to them.

    J

  14. Saying that the halakhah WRTbrain ndeath is "in dispute" leaves things far too blurry.

    First, in order for a topic to be in dispute means that there must be rabbis convinced of either side. How do you know the LBD is not among those rabbis convinced of the position they took? You presume they consider the matter one of doubt, that they are among those who see the matter as "in dispute" rather than being among the disputants. It's only the undecided who can then weigh the pros and cons, and therefore will be more overtly subjective.

    Second, there is a clear majority and a clear precedent. The "in dispute" is a weak one, and many — even without any agendas you wish to ascribe to them — will simply not consider these two equal alternatives. IOW, even among those not convinced of one side or another, it would take much "pro" to get them to rely on a weaker ruling.

    J, one thing I prefer in your formulation. I wrote the above as though there are disputants and non-disputants; rabbanim who are convinced of one side of the argument vs those who can see the validity of both sides. In reality, there are people more or less convinced, more or less among the disputants. (And if a poseiq altogether can't see the other side of a real dispute, I wonder if he could be relied upon. He is obviously missing the nuances of the case.)

    So, to rephrase what I wrote above less clearly but more accurately: J, you presume the LBD sees both sides as similarly viable, such that the driving force of their decision is their own leanings. The "slide to the right" as we put it here in the US, in describing the changes of the last few decades.

    I think that assuming this is unfair to them. It shows more of a distrust of the rabbinate than honest opinion. Mind you many in the rabbinate have done much to shake our trust, from silly bans based on rumor and unfairly harming real people to financial malfeance to protecting sex offenders. But I have no reason to tar the whole institution with that brush.

  15. micha:
    My criticism of the LBD is based on my own experiences and is directed specifically at them, not in general at all rabbinic authority. The LBD, a self perpetating oligarchy, has since the days of Dayan Swift always taken a hard line position on every issue. Its default position is 'no'. To deny by implication that there is no dispute halachically over Brain Death is dishonest and poor halachic poemic.
    J

  16. All the Beth Din needed to do was to state clearly and simply that Jews can donate organs but that they also need to take steps to ensure that the halachic parameters for brain death are adhered to.

    Actually, this is exactly what they do say. Quoting from national organ donation website:

    Judaism insists that no organ may be removed from a donor until death – as defined in Jewish law – has definitely occurred. This can cause problems concerning heart, lung and similar transplants where time is of the essence.

    Judaism insists that honour and respect are due to the dead (kavod hamet). After donation, the avoidance of unnecessary further interference with the body, and the need for immediate interment, are again of prime concern.

    As all cases are different, Jewish law requires consultation with a competent Rabbinic authority before consent is granted.

    These guidelines have been prepared in consultation with the Office of the Chief Rabbi
    Please contact the Office of the Chief Rabbi, or another competent Halachic authority

    —-

    I attended a talk given by someone from the Halachic Organ Donation Society, who pointed out that in medical circles, Israel is seen as a "taker", in organ donation terms. Well, you could argue that people always find an excuse to bash Israel, but remember, in Medical circles, Israel is usually lauded for pioneering treatments and being charitable in treating those of other nations.

    I'm afraid that organ donation is one of those areas in which for me, common sense trumps halachah. Take religion out of it, and the decision becomes blindingly one sided. I can't help but feel that there are, frankly, more pressing things to worry religious minds than whether God will disapprove of taking organs "early" (in the context of the controlled and regulated medical environments of the West).

  17. PGrGr:

    I would have agreed with you, if not that when researching Jeremy's previous blog post about brain death about two years ago (http://jeremyrosen.blogspot.com/2008/11/brain-death.html) I found that medical declarations of brain death are not always accurate. In fact, there had been cases within that very year of people being declared brain dead and afterwards making a full recovery!

    This shocked me, as I would have thought medical science better able to make such a determination. Surely if it I were in the position of having my organs taken while I were still alive, I would want to err on the side of caution. And it seems to me that Judaism definitely puts great emphasis on preserving life if at all possible.

  18. ss,

    That's a fair enough point you make about the inaccuracy of assessing brain death.

    However, at what stage do you draw the limit. Let's say that the science boffins improve the accuracy of the assessment, so that there are less of these miraculous recovery stories around. However, they can't rule them out completely. Let's say we get it down to just one per year. Or what about one per 10 years.

    I'm not saying that the current state of affairs is acceptable, but at what stage do we say enough is enough?

    I am intentionally playing devil's avocado and provoking you into a fundamentalist stance on this, because science, unlike faith, isn't about certainties. Rather, it's about probabilities. With grey areas like brain death, we might only ever get to the stage of being able to declare someone 99.9% likely to be brain dead.

  19. R' Tendler has a specific test that he says is the biological equivalent of decapitation. Not the usual test if there is brain activity, but whether the brain stem is consuming oxygen at all. Also, I think you're confusing brain death stories with cessation of the activity in the brain stem in particular.

  20. micha:

    Yes, that is part of the problem–the term "brain dead" is used to refer to more than one medical situation. And of course you are right that brain stem death is quite a special case.

    Jeremy's other blog piece, which I linked above, has embedded links to several articles that give good overviews of these distinctions as they pertain to the controversy, particularly these:
    http://koltorah.org/ravj/New_Thoughts_on_the_Brain_Death_Controversy_1.html

    http://www.jlaw.com/Articles/brain.html

    The HOD website also has a number of good detailed articles at:

    http://www.hods.org/English/h-issues/articlesE.asp

    However, people wishing to harvest the organs may be thinking of "brain death" in the looser sense of "no brain activity" (especially when there has been none for an extended period) as people are able to be pronounced dead and have their organs removed at that point. (As in the case of this man who "came back to life" http://www.metro.co.uk/news/world/126081-brain-dead-victim-comes-back-to-life.) I am still amazed the cases there have been of people being declared dead on the basis of absence of brain activity, only to revive later. It makes one wonder how many times organs were taken before a person might otherwise have survived.

    That is why these halachic details are so important to understand and apply.

    Still, I suppose there could still be mistakes, even if doctors are looking to confirm brain stem death. But all of this has got to be more accurate than the instruments in former times doctors used to determine the absence of pulse and respiration!

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