My friend Rabbi Shael Siegel makes an interesting point about the singular most difficult issue in the controversy over brain stem death, organ transplants. I think that this is one of those areas where a common sense approach when combined with Halacha and ethics can have negative life or death consequences.
Just to summarize the issue – there is a controversy over whether brain stem death is a proper Halachic indicator of death. Until relatively recently both science and Halacha looked at pretty much the same thing to determine the point of death: the cessation of heart-lung function.
But modern science has changed all that. Halacha still looks at the cessation of breathing and a lack of a heartbeat to determine death. But medical advances have enabled doctors to literally bring people back to life – resuscitating them after the heart stops beating. And they have found ways (via a heart-lung machine) to keep a heart beating long after natural causes would have caused it to stop. This can be done even after a medically determined death via cessation of brain function - something that Halacha does not explicitly recognize.
My understanding is that modern medicine can determine a whether a person is dead or alive in other more precise ways via something called brain stem death. The patient is then considered dead even though he can still be breathing and his heart still beating via a machine.
The Halachic definition of death would however seem to indicate that Halachicly the patient is still alive. Removing any medical instruments that keep the patient breathing can therefore be seen as murder. This seems to be the dominant view among Poskim.
Rabbi Moshe Tendler has courageously staked out a very controversial position that brain stem death is in fact actual death. As one poster (Raphael Kaufman) put it -Rav Tendler's position on brain stem death requires that there be no breathing reflex and complete lack of blood flow to the brain stem (inferred or determined by angiogram). An individual can have no discernable brain waves and still be capable of spontaneous respiration. In such a case, no halachic authority would consider the individual to be dead. Rabbi Dr. William Gewirtz points out that key to brain stem death is its irreversiblity.
He has claimed that his father in law, Rav Moshe Feinstein, agreed with him on this. Others dispute that and say that Rav Moshe never said that. I do not believe there is any written record of Rav Moshe’s views on this subject.
This has caused an uproar among many Poskim. They have condemned Rabbi Tendler’s views and maintain that Chazal’s definition of death is the only Halachic standard.
This battle between Rabbi Tendler and other Poskim impacts the relatively new lifesaving medical advance of organ transpalnts by donors who have ‘died’ as determined by brain stem death.
In order for an organ to be viable for transplant it must still be ‘working’. A heart for example must be beating before it is removed from the donor to the recipient or it becomes necrotic and unusable. By keeping it going via a heart-lung machine transplants become possible and many lives can be saved. But if death is only determined by a stopped heart, heart transplants become impossible. This is one of the reasons that Orthodox Jews are discouraged from signing organ donor cards.
And yet when an Orthodox Jew needs a heart transplant Halacha permits him to take it. I guess the explanation for this is in part that once the heart is offered in a situation where we have no control over the donor – and doctors have removed it pronouncing the patient dead via the cessation of brain stem activlty – then it would be criminal to let a patient die at that point and not give it to him even if he would himself never be able to donate his heart if the tables were turned.
The question arises about the morality of taking without giving. Rabbi Avi Shafran has made a moral argument for that. But my friend Shael takes him to task for it. The following is a slightly edited excerpt from his blog:
The… issue I have is with the few who risked wading into the area of medical ethics and the ethical decision-making process. Frankly I was shocked at the apparent lack of sensitivity of two of the scholars who exploited the proverbial halachic loopholes in order to benefit from the transplants while at the same time ruling that BSD (brain stem death) can be ruled on not only as murder but double murder.
Rabbi Avi Shafran, Director of Public Affairs for Agudath Israel of America reasoned the following: “Can a potential recipients religious beliefs…constitute valid grounds for penalizing him…? Legally speaking, denying someone a transplant simply because joining an organ donation system would force him to dishonor his religious beliefs would…amount to curtailing his constitutional rights….”
Rabbi Shafran’s views seems to leave something to be desired. In a society where organs are in short supply and limited, and people are asked to participate on a “give-get” basis, it would stand to reason that those who do participate ought to benefit before those who refuse to participate.
No one is being coerced, and no one’s religious freedoms are being trampled upon. However, the decisions we make do have consequences. Choosing to live apart, for whatever the reason, whether it is personal convictions or religious belief doesn’t entitle one to reap the same benefits as those who choose to participate and contribute.
If one decides not to participate in “give-get” he ought to be prepared to forego a possible transplant. Isn’t that what standing on principles really mean: to talk the talk and walk the walk? The ethics of “give-get” become even more convincing when we also consider the normative halachic practice in Israel where BSD is an accepted clinical criterion of declaring someone dead. In spite of the responsible and sagacious advise of the Chief Rabbinate, if one decides to choose to listen to his local rabbi and opt for the heartbeat criteria instead of BSD, the consequence ought to be clear.
I hear you, Shael. And I find it hard to argue with you.
