Living Wills, Health Care Issues: The Definition of Death - Part Seven by Rabbi Howard Jachter and Martin M. Shenkman, Esq.

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Introduction

            Halachic authorities have been vigorously debating the issue of "brain death" for approximately 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, Volume One of Rav J. David Bleich's (who later wrote an entire book on the subject) Contemporary Halachic Problems, pages 372-393, Dr. Abraham S. Abraham's Nishmat Avraham, Yoreh Deah 339:2, and Techumin 7:187-193 (the latter essay includes the official position of the Israeli Chief 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, 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 in case the individual should return to life.  The Chatam Sofer (Teshuvot Yoreh Deah 338) strongly opposed adopting the non-Jewish standard of death of that time.  The Chatam Sofer wrote (cited in Pitchei Teshuva 357:1), "All the winds of the world will not move us from the standards established by our Torah."

            Since the 1970s, however, there has been movement to change 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 not 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.

 

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

            Halachic authorities are 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.  The section of the Talmud which is the point of departure for the debate on this issue is the Gemara found in the eighth chapter of Masechet Yoma.  The Mishna (Yoma 83a) states that one should remove the debris from one on whom a building fell even if it is doubtful that he is still alive.  The Gemara concludes that "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 Shulchan Aruch (Orach Chaim 329:7) rule that one is required to continue excavation of the debris only until reaching the nose.

            The following three arguments are advanced by some rabbis to argue that Halacha finds "brain death" as an acceptable definition of death.  One argument states 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.

            The final argument equates brain death with decapitation.  The Mishna (Ohalot 1:6) discusses a situation in which animals whose heads have been removed and are convulsing, are considered ritually unclean because they are dead.  Some authorities argue, by analogy, that one who is brain dead is considered to be "physiologically decapitated" since no blood flows to the brain.  Rav Moshe Tendler of Yeshiva University is a vigorous proponent of this view.

 

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

            On the other hand, many (if not most) eminent Halachic authorities reject the concept of brain death as a Halachically acceptable definition of death.  Rav Hershel Schachter (B'ikvei 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 Moshe Feinstein has taken a contrary view (Teshuvot Igrot Moshe O.C. 8-9).  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 Aharon 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.  (See his essay in the 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 Yoreh Deah 339:1 and Nishmat Avraham 339:4).  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 Yoma 85a, where he explains that one checks the nose to see if there is a sign of life only  "if he seems dead, that he does not move any of his limbs."  However, if one of the limbs is moving, the individual is considered alive.  The heart may be considered a limb for these purposes.  These four authorities include the aforementioned responsa of the Chatam Sofer, the Chacham Tzvi (Teshuvot 77), Maharsham (Teshuvot 6:134), and Rav Yosef Shaul Natanson (Divrei Shaul p. 394).

            According to this approach, the Talmud, Rambam, and Shulchan Aruch teach that only the absence of respiration indicates the lack of any life in the body.  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.  As long as part of the body continues to function spontaneously, the individual is still considered to be Halachically alive.

 

Addressing Definition of Death Issues in One's Living Will

            There are several approaches to addressing these complex definition of death issues in one's living will.  One approach is to include detailed directions as to which medical steps can or should be taken under given circumstances.  However, if the actual circumstances vary from those one has addressed, his detailed instructions may prove of little use to those needing to make decisions and may even exacerbate the legal concerns of the medical care providers.  As another alternative, one can specify in some detail the definition of death which he wishes to have applied.  The difficulty with this approach is that the issues, as indicated in the discussions above, are extremely technical, complex, and controversial.  A final alternative is to designate a rabbinic authority to make Halachic decisions and entrust that authority to make the appropriate decision (or, in turn, consult with eminent Rabbis).  This approach is also problematic.  If the authorities named are not available to render a decision, the living will itself will not provide the attending physicians any guidance.

 

Conclusion

            The definition of death is one of the most complex and controversial issues affecting health care.  At minimum, signing a living will and health care proxy will indicate one's desire that decision be made in accordance with Halacha.  One should discuss with his Rav whether a more detailed approach should be included, and if so, how.

            Next week, God willing and Bli Neder, we will discuss the issue of kidney and cornea transplants.

Living Wills, Health Care Issues, and Autopsies - Part Ten by Rabbi Howard Jachter and Martin M. Shenkman Esq.

Living Wills, Health Care Issues: Skin Donations - Part Nine by Rabbi Howard Jachter and Martin M. Shenkman Esq.