Rabbi Jachter's Halacha Files

(and other Halachic compositions)

Parshat Ki Tisa

17 Adar Aleph 5768

February 23, 2008

Vol.17 No.23

New Thoughts on the Brain Death Controversy - Part 1

by Rabbi Chaim Jachter

Introduction

Halachic authorities have been vigorously debating the issue of "brain death" for more than two decades. Discussions of the issue can be found in five essays on the subject printed in the Spring 1989 issue of the Journal of Halacha and Contemporary Society, Rav J. David Bleich's The Time of Death in Jewish Law, wherein he vigorously opposes brain death as a definition of death, and Dr. Abraham S. Abraham's Nishmat Avraham (Y.D. 339:2). In addition, the position of the Israeli Chief Rabbinate, including the official endorsement of the Israeli Chief Rabbinate of brain death as a criterion of death, can be found in Techumin (7:187-193).

Traditionally, death was defined as "total stoppage of the circulation of the blood, and a cessation of the animal and virtual functions consequent thereupon, such as respiration, pulsation, etc." (Black's Law Dictionary, fourth edition, 1951). At this point, secular law did not consider death to take place earlier than Jewish law did. In fact, pressure was put on the Jewish community of Germany in the late-eighteenth century to delay burial for three days due to the non-Jews' concern that the individual might return to life. The Chatam Sofer (Teshuvot Chatam Sofer Y.D. 338, cited in Pitchei Teshuvah 357:1) strongly opposed adopting the non-Jewish standard of death of that time, declaring, "All the winds of the world will not move us from the standards established by our Torah."

Since the 1970s, however, there has been a movement towards changing the traditional medical definition of death. The newer definitions define death as irreversible cessation of all functions of the brain, including the brain stem. The person would be declared dead despite the fact that the heart is still beating spontaneously. (Spontaneous respiration would cease in case of "brain death," since the brain controls respiration, but the heart would keep beating, as the "dead" part of the brain does not control coronary function.) A primary consideration for adopting this new definition of death is the current inability to transplant hearts, lungs, and livers from cadaver donors. The donor's heart must be beating spontaneously to be considered suitable to harvest the aforementioned organs for transplantation.

Proponents of the View that Halacha Regards Brain Death as an Acceptable Definition of Death

Halachic authorities have been deeply divided regarding this issue. We will first review the opinions of those who believe that Halacha accepts brain death as a definition of death. Israeli Poskim who support brain death as a criterion of death include Rav Avraham Shapiro, Rav Shaul Yisraeli, and Rav Mordechai Eliyahu. The point of departure for this debate is the Mishnah (Yoma 83a) that states that one should remove the debris from someone upon whom a building fell even if it is doubtful that he is still alive. The Gemara (Yoma 85a) concludes, "Life manifests itself primarily through the nose, as it is written, 'All in whose nostrils was the breath of the spirit of life' (Bereishit 7:22)." Both the Rambam (Hilchot Shabbat 2:10) and the Shulchan Aruch (O.C. 329:7) rule that one is required to continue excavation of the debris only until reaching the nose. Thus, it seems that breathing defines life.

Three different arguments are advanced by the advocates of the view that Halacha considers "brain death" as an acceptable definition of death. One argument is that the aforementioned Gemara strongly suggests that respiration is the definition of death, and since one who is "brain dead" is incapable of spontaneous respiration, he is dead. This argument is advanced by the Chief Rabbinate for its endorsement of brain death as a criterion of death. It cites the Chatam Sofer's abovementioned responsum as a basis for its ruling. The Chatam Sofer states, "When respiration has ceased, we no longer violate Shabbat in rescue efforts [since the victim is dead]. Therefore, this is our accepted criterion of death from the time we became a people."

A second permutation of this argument is that the Gemara considers respiration to be an indication of life. If respiration ceases, this indicates life has ceased, but the lack of respiration is not per se the definition of death. Rather, the irreversible lack of respiration is an indication that "brain death" has occurred. According to this approach, brain death always has been the Halachic definition of death. (One wonders, though, what evidence exists to prove that Chazal were aware that the brain stem controls respiration).

The third argument equates brain death with decapitation. The Mishnah (Ohalot 1:6) discusses a situation in which animals whose heads have been removed and are convulsing are nevertheless considered ritually unclean, because they are dead. Some argue, by analogy, that one who is brain dead is considered to be "physiologically decapitated," since no blood flows to the brain.

Proponents of the View that Halacha Rejects Brain Death as an Acceptable Definition of Death

On the other hand, most leading Halachic authorities reject the concept of brain death as a Halachically acceptable definition of death. Rav Hershel Schachter (BeIkvei HaTzon Chapters 36 and 37) questions the analogy of a brain dead patient to one who has been decapitated. He points out that two early-twentieth-century Halachic authorities, Rav Meir Arik (Teshuvot Imrei Yosher 2:14) and Rav Yosef Engel (Gilyonei HaShas Kiddushin 24), permit Tefillin to be placed on a gangrenous arm. Rav Schachter asserts, "They obviously felt that although a limb has gangrene, it is still 'alive' as long as the basic circulatory system continues functioning for the rest of the body." Similarly, even though no blood is flowing to the brain, a person may still be considered alive if the circulatory system continues functioning for the rest of the body. Rav Moshe Feinstein (Teshuvot Igrot Moshe O.C. 1:8-9), it should be noted, disagrees with Rav Arik and Rav Engel. Rav Ahron Soloveitchik also asserts that no analogy may be drawn between actual, physical decapitation and brain death, which involves only a functional non-activity of the brain (see his essay in the Spring 1989 Journal of Halacha and Contemporary Society pp. 41-48).

Others argue that the various tests necessary to determine brain death cannot be performed due to the prohibition against moving a Goses, an individual who is near death (see Shulchan Aruch Y.D. 339:1 and Nishmat Avraham Y.D. 339:4). Yet the main argument of those who reject "brain death" as a definition of death is the fact that four eminent authorities (listed below) assert that if an individual's heart beats spontaneously, he is still considered Halachically alive. They point to Rashi's comments to Yoma 85a, where he explains that one checks the nose to see if there is a sign of life only "if he seems dead, [in] that he does not move any of his limbs." If one of the limbs is moving, the individual is considered alive. These authorities argue that the heart is considered a limb for these purposes, an assertion based on the aforementioned responsum of the Chatam Sofer, Teshuvot Chacham Tzvi (number 77), Teshuvot Maharsham (6:134), and Rav Yosef Shaul Natanson (Divrei Shaul p. 394). The proponents of this view note that the Chatam Sofer, in addition to the statement made above, also states, "as long as the individual is motionless like an inanimate stone and has no pulse, and if afterwards respiration has ceased, we have only our holy Torah [that teaches] that he is dead."

In addition to Rav Ahron, Rav Bleich and Rav Schachter, the long list of Poskim who do not accept brain death as death includes Rav Shlomo Zalman Auerbach (Teshuvot Minchat Shlomo 2:83), Rav Yosef Shalom Eliashiv (letter printed in Nishmat Avraham 4 Y.D. pp. 148-150), Rav Nissim Karelitz (letter printed in HaModia 22 Marcheshvan 5747), Rav Eliezer Waldenberg (Teshuvot Tzitz Eliezer 9:46), Dayan Yitzchak Weisz (Teshuvot Minchat Yitzchak 5:7-8), Rav Mordechai Willig (personal conversation), and Rav Shmuel Wosner (Teshuvot Sheivet HaLevi 7:235).

According to these Poskim, the Gemara, Rambam, and Shulchan Aruch teach that the absence of spontaneous respiration indicates only the lack of any life in the body but does not serve as an independent criterion for death. This was especially true before the introduction of respirators; when spontaneous respiration ceased, cardiac function inevitably ended soon after due to the lack of oxygen supplied to the heart. However, since today the heart can function spontaneously even if the patient requires a respirator to breathe, the absence of spontaneous respiration does not render a person dead. The majority of Poskim thus believes that as long as part of the body continues to function spontaneously, the individual is still considered to be Halachically alive.

New Thoughts on the Brain Death Controversy

In the Winter 2004 issue of Tradition, Dr. Joshua Kunin appeals to the proponents of brain death as a criterion of death to reconsider their ruling. He cites evidence from recent medical literature that demonstrates that even in patients where the brain stem has permanently ceased to function, there often remains some connections between the brain and the rest of the body for varying degrees of time, allowing certain processes to continue. These functions include an intact hypothalamic-pituitary axis in the brain, the continued function of the autonomous nervous system, the lack of diabetes insipidus (which indicates some blood flow from the body to the brain), maintenance of hemodynamic responses, and stable blood pressure. These findings appear to disprove the equation between brain death and decapitation.

However, writing in the same issue of Tradition, Dr. Edward Reichman, in an essay entitled "Don't Pull the Plug on Brain Death Just Yet," asserts that the primary consideration of the Rabbanim who advocate brain death is that the irreversible cessation of spontaneous respiration is a criterion of death and that this argument has not been disproved by the medical data cited by Dr. Kunin.

Nonetheless, the notion that the absence of spontaneous respiration and not brain death itself is the determining factor of life or death appears quite puzzling, as it is entirely unreasonable to suggest that a patient with end-stage ALS or polio, who cannot breathe without machinery, is considered dead. Rav Moshe Tendler appears to contend with this issue by asserting (in his essay that appears in the aforementioned issue of The Journal of Halacha and Contemporary Society), "The classic definition of death is absence of respiration in a person who appears dead." Accordingly, permanent loss of spontaneous respiration is insufficient to establish death unless the patient also appears dead. The basis of this addition is the aforementioned Rashi to Yoma 85a. Rav Tendler defines a patient who appears dead as one who "shows no movement and is unresponsive to all stimuli." We already have noted that the many Rabbanim who oppose brain death argue that since the heart of a brain-dead patient still beats spontaneously, the patient does not appear to be dead. Rav Tendler argues that this heartbeat is the equivalent of "the twitching of a lizard's amputated tail or the death throes of a decapitated man." One may counter, however, that it seems highly counterintuitive to argue that rhythmic heart beating and hypothalamic regulation of body temperature for days is analogous to the fleeting, spasmodic twitching of a decapitated individual.

The Need for to Sign a Health Care Proxy

We have discussed in the past (in essays available at www.koltorah.org) the critical need for everyone to sign a health care proxy designating a rabbinic authority to make Halachic decisions (and, of course, to consult with eminent Rabbis) in case of incapacitation. The need to sign such a document is underscored by the fact that outside of the Orthodox community, brain death is almost universally accepted as a definition of death. Signing a health care proxy is the only way one can insure that health care providers, institutions, and insurance providers will respect the rulings of one's Rav should he follow the overwhelming majority of Poskim that does not accept brain death as a definition of death.

Conclusion

One should consult his Rav regarding the implications of the recent discussions and reevaluations of the brain death controversy. It is very possible that Rabbanim who heretofore supported brain death as a definition of death no longer maintain that position.

Postscript

Although most Poskim reject brain death as a definition of death, it seems that most Poskim now accept the ruling of Rav Ovadia Yosef (Teshuvot Yechaveh Daat 3:84) permitting kidney donations in cases where it does not pose a serious risk to the donor. In addition, this ruling would appear to also permit liver donation if there is no undue risk involved for the donor. Accordingly, Rabbanim should vigorously encourage live organ donation when possible, especially in light of the very serious Halachic and ethical problems associated with harvesting organs from dead or nearly dead individuals.