Brain Death by Rabbi Howard Jachter


            Halachic authorities have been vigorously debating the issue of "brain death" for approximately two decades.  Since Parshat Vayechi discusses the death of both Yaakov and Yosef, it is appropriate to summarize this week the basic arguments of the proponents of both views.  Thorough reviews of the issue can be found in five essays on the subject printed in the Spring 9891 issue of the Journal of Halacha and Contemporary Society, Volume One of Rabbi J. David Bleich's (who later wrote an entire book on the subject)  Contemporary Halachic Problems, pages 273-393, Dr. Avraham S. Avraham, Nishmat Avraham יורה דעה שלט:ב, and Techumin 7:781-391 (for the official position of the Israeli Rabbinate).

            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, 1591).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 in case the individual should return to life.  It was Moshe Mendelssohn who sought to permit delaying burying in contravention of the prohibition of הלנת המת (delaying burial) in order to ascertain that death had certainly occurred.  The Chatam Sofer (תשובות יורה דעה סימן שלח) strongly opposed adopting the non Jewish standard of death of that time.  The Chatam Sofer wrote (cited in פתחי תשובה יורה דעה שנז:א) "all the winds of the world will not move us from the standards established by our Torah." 

            Since the 1970's, however, there has been great movement to change the traditional definition of death.  The new definition defines death as irreversible cessation of all functions of the entire 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 it does not control the coronary function).  A primary consideration for adopting this new definition of death is the inability to transplant a heart from a cadaver donor. The heart must be beating spontaneously to  be considered suitable to harvest for transplantation. My חברותא Dr. David Serur (head of kidney transplants at Cornell New York Medical Center) reports that brain death is so universally accepted as the definition of death, that physicians commonly say that American Indians and Orthodox Jews are the only people who do not accept brain death as a definition of death.

            Halachic authorities have been divided regarding this issue. We will begin by presenting the opinion of these who believe that halacha accepts brain death as a definition of both. The section of the Talmud which is the point of departure for the debate on this issue is יומא פה. The Mishna (יומא פג.) states that one should remove the debris from one on whom a building fell even if it is doubtful if he is still alive. The Gemara concludes that "life manifests itself primarily through the nose, as it is written כל אשר נשמת רוח חיים באפיו )בראשית ז כב( "all in whose nostrils was the breath of the spirit of life."  Both the Rambam (הלכות שבת ב:יט) and Shulchan Aruch (אורח חיים שכט ד) rule is that one is required to check during excavation of the debris only until he reaches the nose.

            The following three arguments are advanced to argue that halacha finds "brain death" as an acceptable definition of death. First, that the halacha accepts respiration as the definition of death and since one who is "brain dead" is incapable of spontaneous respiration, he is dead. The second 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 has always been the halachic definition of death.

A third argument is that brain death is the equivalent of decapitation.  The Mishnah in אהלות (א:ו) that animals which התזו ראשיהם אף על פי שמפרכסין טמאין, animals whose heads have been removed and are convulsing are considered ritually unclean because they are dead.  Some wish to argue that one who is brain dead is considered to be "physiologically decapitated" since no blood flows to the brain.  Rabbi Doctor Moshe Tendler is a vigorous proponent of this view.

            On the other hand, many eminent halachic authorities reject the concept of brain death as a halachically acceptable definition of death.  Rav Hershel Schachter 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 (שו"ת אמרי יושר ב:יד) and Rav Yosef Engel (גילוני השס קידושין כד) permit (unlike Rav Moshe Feinstein אגרות משה אורח חיים סימנים ח-ט) 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 blood does not flow to the brain, the person may still be considered alive, if the circulatory system continues functioning for the rest of the body. Rav Ahron Soloveitchik asserts that no analogy may be drawn between actual physical decapitation and brain death which involves only a functional non-activity of the brain.

            Others argue that the various tests necessary to determine brain death cannot be preformed due to the prohibition to move a גוסס, an individual who is near death (see שולחן ערוך יורה דעה שלט:א  and נשמת אברהם שלט:ד).  The main argument, however, of those who reject "brain death" as a definition of death is the fact that four eminent authorities assert that if an individual's heart beats spontaneously, the person is still considered Halachically alive.  They point to Rashi's comments to יומא פה., where he explains that one checks the nose to see if there is a sign of life only אם דומה למת שאינו מזיז אבריו, "if he seems dead, that he does  not move any of his limbs."  However, if one of the limbs, for example, the heart, is moving, the individual is considered alive.  These four authorities include the aforementioned responsum of the חתם סופר, the חכם צבי (תשובות ס' ע"ז), Maharsham (ו:קכד), and Rav Yosef Shaul Natanson (דברי שאול יורה דעה סימן שצ"ד).  According to this approach, the Talmud, Rambam, and Shulchan Aruch teach only that the absence of respiration indicates the lack of any life in the body.  However, since today the heart can function even if one requires a respirator, the absence of respiration does not render a person dead.  As long as part of the body continues to function, the individual is still considered to be alive.

            These are the basic arguments concerning the issue of brain death.  If one is faced with this issue either professionally (such as a neurologist) or personally (רחמנא ליצלן) he must consult a Rabbi of great stature for a ruling, "אבינו מלכנו שלח מהרה רפואה שלימה לחולי עמך."

The Same But Different by Rabbi Howard Jachter

Pidyon Shevuyim by Yehudah Kranzler