Winter Harvest

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In a forthcoming book, “Final Exam: A Surgeon’s Reflections on Mortality,” Dr. Pauline W. Chen writes about the many operations she performed on brain-dead patients for the purpose of procuring, or “harvesting,” their organs for transplantation. “They all,” she writes, “seemed remarkably alive.”

This past fall, the prestigious journal Science published a report on a young woman who, after a devastating car accident, was declared vegetative. For five months, she showed no signs of awareness whatsoever. Scientists, though, decided to put her in a Functional Magnetic Resonance Imaging scanner, a machine that tracks blood flow to different parts of the brain and that was only developed a few years ago. When they asked her to imagine things like playing tennis and walking through her home, the scan lit up with telltale patterns of language, movement and navigation indistinguishable from those produced by the brains of healthy, conscious people. The report’s authors, while stressing that the patient may still be classified as “unconscious,” conclude nonetheless that she has a “rich mental life.”

Ten years earlier, a patient like the young woman would have been assumed, for all practical intents, to be – effectively, if perhaps not legally – lifeless. Only the development of a new diagnostic technology has now rendered her more obviously alive. It’s hard not to wonder what technologies might one day yet be developed – or what aspects of consciousness might forever elude scientific instrumentation.

The acronym DCD might be mistaken for some new medium of music reproduction but in fact refers to “donation after cardiac death” – the procurement of organs from people whose hearts have stopped, even if their brains may still be functioning. Such procedures have taken place in many countries, despite the fact that the cessation of heartbeat is not necessarily irreversible. Even some patients whose hearts did not respond to cardiac resuscitation, it is well documented, have “come back to life” – in one case after the lapse of a full seven minutes, certainly sufficient time to harvest a vital organ or two.

The driving force behind the scramble to define death “to the instant” is clearly the worldwide shortage of organs for transplant. This past summer, doctors at the World Transplant Congress in Boston were told how the pool of available organs in the United States could increase by up to 20% if DCD were adopted more widely.

What does Judaism have to say about all this? Saving a life is a most weighty imperative, to be sure, but Jewish religious law, or halacha, does not permit one life to be taken to save the life of another – no matter how diminished the “quality” of the life of the former, no matter how great the potential of the life of the latter.

Halacha requires that death be clearly established, and does not permit any action that might hasten the death of a person in extremis. Any harvesting of organs after cessation of heart function that might not be permanent would be forbidden.

Unrelated to DCD is “brain death” – a diagnosis of irreversible cessation of all brain function, which modern medicine and secular law consider sufficient to permit the “harvesting” of organs before removal of life-support. What does Jewish law have to say about “brain death”? Can a patient with no discernable brain activity but whose heart continues to beat be considered a corpse?

Some rabbis vote yea on that question. And a recent New York Times article about a conference organized by the “Halachic Organ Donor Society,” an organization advocating increased organ donation from halacha-observant Jews, referred to “near unanimity among rabbis on the criteria for organ donation” – presumably referring to the next paragraph’s citation of the chief Sephardic rabbi of the Israeli city of Tzfat, whose criterion is brain death.

But many, and considerably more prominent in the world of halachic discourse, are the rabbinical authorities who do not agree. They include the late Rabbi Shlomo Zalman Auerbach, who was renowned as one of our generation’s most authoritative halachic decisors, as well as Rabbi Yosef Elyashiv, considered by many Jews to be the most authoritative authority of Jewish law today. Some leading scholars at Yeshiva University too, like Rabbi Herschel Schachter and Rabbi J. David Bleich, concur.

In her book, Dr. Chen writes about her “83rd procurement” when the brain-dead body she sliced open for its organs was that of a young Asian-American woman like herself, who reminded her vividly, so to speak, of herself. She found herself hesitating during the procedure, but managed to complete it, although as she cut the vena cava and watched the patient’s blood drain into canisters, she felt “as if my own life force were draining away.”

Dr. Chen may intend her account to be simply what the title of her book promises, a reflection on mortality. But perhaps another thought for consideration lay there on the operating table, the idea that despite the inevitability of its end, life is holy – and we do well to tread carefully and slowly before considering it gone.

That might explain the feeling she writes she had at the end of that 83rd procurement, an exhaustion born not only of “sleep deprivation [and] overwork” but of “an unbearable grief.”

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Noam Stadlan
8 years 8 months ago

I must again point out that the “conclusion of the chapter” cited by Dr. Zacharowicz does not discuss patients who have been declared brain dead, only patients who have no brain function on physical examination. Dr. Zacharowicz now tells us that these findings are similar to ones cited by the Nishmat Avraham. I do not have my copy of Nishmat Avraham in front of me. However, no matter who cites this data and in what context, it is not relavent data in the discussion of brain death.

Let us use a different disease as an example. Many people get stomach(abdominal) pain. Only a small percentage of people with stomach pain have appendicitis. If one did a study of patients with right lower quadrant(bottom right of the stomach, where the appendix usually sits) pain, one would come to the conclusion that only a small percentage of patients with pain in that area had appendicitis. This study would not cast doubt on the ability to diagnose appendicitis, nor on the existance of appendicitis as a specific clinical condition. The only conclusion would be that the entry criteria of the study(having only abdominal pain, without looking at results of diagnostic studies such as CT, ultrasound, lab studies, x-ray etc.) were too broad. So broad in fact, that they included a lot of conditions that were not appendicitis.

This is the problem with the study(or chapter conclusion) quoted by Dr. Zacharowicz. The patients who were entered did not have the diagnosis of brain death. However, Dr. Zacharowicz brings this study in his arguements against brain death. I am sorry to say that this is very misleading.

Dr. Zacharowicz is accurate when he writes that the criteria for brain death vary state to state and physician to physician, and that some of the criteria used by some physicians are not reliable from any halachic standpoint. Therefore it is very important for everyone to have access to reliable information and poskim familiar and comfortable in dealing with the issue. I think that any organization that provides accurate information, whether it is online, in print, or other media, performs a valuable service. On the other hand, presented misleading data, no matter what the forum, is a disservice.

One final point. I am not sure why Dr. Zacharowicz referred to me as his junior colleague. If I am younger, or hold a lessor academic position, then it does fit in that context. However, if he is implying that my opinion is any less valid, I am obliged to protest. I think that 7 years of neurosurgical residency and over 11 years in practice(and having read hundreds of articles on the topic) is support enough for my opinion.

Moshe
8 years 8 months ago

While respectful of the prestigious academic background of Dr. Zacharowicz, I cannot think of a reason that brain death cannot be debated in an intelligent, open, intellectually honest written debate. I fail to see why such issues need to be worked out in private, as that only adds more intrigue and lack of trust in the decision making process – especially when there are two viewpoints and one of them refuses to portray their view. If Dr. Zacharowicz can elaborate on his point that this is not an issue to be debated in public, I’d be most grateful.

Numerous articles have been written on the subject in a myriad of publications, from classical Shu”t to contemporary Halakhic journals. Both sides have had their chance to show their point, and it seems that the ‘pro brain death’ camp is doing the better job of educating the public.

Dr. Stadlan, the ‘junior’ colleague (see the words of Rebbi in Avot, 4:20) has brought up a very valid and important point. There are many Rabbis who are immersed in the medical field who can consult with competent, G-d fearing Doctors about the validity of the brain death tests, and nowadays, they have the legal ability to be involved in the decision making process. There is no reason to rely on the subjective opinion of one doctor who relies solely on his clinical abilities when making as important a decision as the one at hand.

Regarding Dr. Zacharowicz’s last point – to come to a Yarchei Kallah: I have checked the list of Rabbonim who generally speak at the Yarchei Kallah in question, and I have found a very significant tilt towards the opinion that forbids classifying brain death as death. That is to be expected, as Rav Elyashiv is the posek followed by Rav Weiner – the head of the Yarchei Kallah. What would be of interest to most people would be to put together a learning session which would include having Rabbis from the pro-brain death camp as well, such as Rabbi Mordechai Halperin (the editor-in-chief of “Assia” – the most prominent Medical/Halakhic Journal published); Israel Prize winner Prof. Avraham Steinberg, writer of the Medical Halakhic Encyclopedia; Rav Shlomo Aviner, and others. Arrange for there to be a round table discussion so that the issue can actually be discussed in public, allowing each side to respond to the questions and concerns of the other side, without resorting to straw men or appeals to authority.

Leon Zacharowicz
8 years 8 months ago

I again regret that my other obligations precluded a more prompt response.
To fully respond to the comments of my junior colleague, Dr Stadlan, I would have to discuss issues which are better discussed privately or offline. What I have cited was not a single study but a conclusion of a chapter on brain death determination, and these findings are similar to those cited by the Nishmat Avraham, Dr. Abraham S. Abraham, who recorded the rulings of Rav Shlomo Zalman Auerbach ztl and so many others in his magnum opus.
The secular legal definition of brain death varies from state to state and also varies with age, and many ‘confirmatory’ tests–which might demonstrate brain activity–are considered optional.
If the family and the family rabbi rely solely on the word of the physicians involved–and in some cases the physicians who declare clinically brain dead also interpret the ‘confirmatory’ tests, that raises other issues.
Notwithstanding what has been publicized by HODS, including its peculiar presentation of highly sensitive issues on its web site [which I doubt would have occurred had HODS ever agreed to having a rabbinic authority on its board of directors], Rav Soloveitchik ztl and others were not wrong when they declared certain public discussions to be inappropriate.
I again therefore respectfully suggest that people truly interested in learning the halachic aspects of organ donation and the determination of death do so under traditional auspices. Come to a yarchei kallah (such as those available via http://www.j-c-r.org), bring all your arguments, data, etc, and discuss this amongst other physicians and with halachic authorities.

Noam Stadlan
8 years 8 months ago

“There are data that indicate that 20% of cllnically brain dead patients [that is, individuals felt to be completely brain dead by physicians without the use of an ‘confirmatory’ tests—LZ] demonstrated residual EEG activity…The issue here is not one of prognosis. There is no doubt that the remaining cortical neurons [ie, living brain cells—LZ] supporting residual EEG activity and the hypothalamic
neurons supporting the regulation of water homeostasis eventually die in patients who meet the current criteria for brain death. The question is rather How should we define the set point at which the patient is dead?”
Switching from scientific knowledge to public policy, the authors of this chapter then immediately state:
“Uncertainty…should not be used to…prevent expeditious organ donation” [reference available by request—LZ].

The study mentioned is of patients who have not had confirmatory studies. No one that I know of, and certainly no halachic authority that I know of advocates a declaration of brain death without confirmatory studies. So, in fact, no one ever declared these patients brain dead in the first place. All they did was observe that they fulfilled the CLINICAL criteria for brain death, not the FULL criteria for brain death- a huge difference. So, in essence that study means absolutely nothing with regard to patients who have fulfilled ALL the criteria for brain death.

Unfortunately, statements like this muddy the perception of those who depend on the medical profession to supply objective clear data. All this study shows is that there are people who have no measureable brain function by physical examination, but have brain function by electrical testing. Since no one should declares anyone brain dead based on physical examination alone, this study says NOTHING about those who have been declared brain dead, which requires confirmatory testing, among other criteria. Certainly for a halachic declaration of death, confirmatory testing is mandatory.

Dr. Leon Zacharowicz
8 years 8 months ago

I regret that my teaching (anatomy and physiology) and other commitments precluded an earlier response and prevent me from a more thorough reply to some of the interesting points made in this discussion.

Permit me to add a few facts and thoughts to the discussion:

1) There cannot be even a shadow of a doubt as to the final halachic position of Rav Shlomo Zalman Auerbach ztl in the matter of the brain death controversy: he required cardiac cessation. Although it is curiously not on the HODS website, his signed, written reply to Rabbi Moshe Tendler’s argument–in favor of considering brain death sufficient to remove vital organs–has been widely published. Please see “Nishmat Avraham” (Mesorah’s English edition or the classic, Hebrew version), or “Mishnas Chayey Sha’ah” [in Hebrew] by his relative, Rav Simcha Bunim Lazerson, shlita, or contact any of his relatives or rabbinic students, as I have done, to verify this. [Possibly, Rav Shlomo Zalman ztl held a different view at some intermediate point.]

2) I take issue with the suggestion that provocative new findings, indicating that patients in deeply comatose states may have levels of responsiveness equivalent to being awake, are irrelevant and bringing up this example is a “disservice” to our community, as I do with the notion that objective tests–which in at least 20% of cases [see below] in some studies show evidence of brain function–are merely ‘confirmatory.’ Again, ‘Nishmat Avraham’ provides references from the medical literature. I have spoken with numerous halachic authorities, and none of them have told me that such facts are irrelevant in halachic decision-making. Even for those who accept the notion that brain death suffices for halachic death, vital organ ‘harvesting’ from a person misdiagnosed as being brain dead but with parts of the brain still functioning has another, more accurate name: HOMICIDE. [See the recent book “Every Second Counts,” on the ‘brilliant’ publicity move of heart transplant surgeon Christian Barnard in the 1960s to come up with the notion of brain death being equivalent to legal death, simply to avoid just such legal charges.]

3) Here is a chilling quotation from a chapter–by world experts–on “The Determination of Brain Death”, in a state-of-the art, 2006 neurophysiology textbook, wherein I was co-author of a chapter on EEG analysis [I have added some explanatory comments in brackets]:

“There are data that indicate that 20% of cllnically brain dead patients [that is, individuals felt to be completely brain dead by physicians without the use of an ‘confirmatory’ tests–LZ] demonstrated residual EEG activity…The issue here is not one of prognosis. There is no doubt that the remaining cortical neurons [ie, living brain cells–LZ] supporting residual EEG activity and the hypothalamic
neurons supporting the regulation of water homeostasis eventually die in patients who meet the current criteria for brain death. The question is rather How should we define the set point at which the patient is dead?”
Switching from scientific knowledge to public policy, the authors of this chapter then immediately state:
“Uncertainty…should not be used to…prevent expeditious organ donation” [reference available by request–LZ].

4) Out of tens of thousands of orthodox rabbis, HODS has managed to convince some 150 rabbis to carry its “unique” organ donor cards (an unknown percentage of which merely agree to organ donation after cardiac cessation).

5) Troubling to me further is HODS’ declared “strategic partnership” with the federally funded NY Organ Donor Network, whose sole purpose is the procurement of organs. After I publicly raised some questions about the aims of HODS, Mr. Berman apparently added the positive phrase “saving lives” in his mission statement–which is intended to increase organ donation from Jews to the general population (a sensitive topic, about ethical aspects of organ donation “from Jew to Gentile,” was featured for public discussion in widespread ads for the HODS conference). Nevertheless, I also have publicly pointed out the poignancy of this issue, for vital organ extraction from persons who are not considered halachically dead would be trying to save lives at the expense of the lives of others. If the data cited in #3 are accurate, that is happening in 20% of cases even according to those rabbis who accept complete brain death as halachic death (and in 100% of cases according to rabbis who require cardiac cessation).

6) Perhaps most troubling to me, and others who have also sought unsuccessfully to quietly influence this small organization, has been another seemingly “unique” feature of HODS: the apparent reluctance to have any practicing rabbi–let alone a halachic authority–on its board of directors. It is beyond my comprehension as to why HODS chooses not to have any rabbinic direction on such sensitive, complex topics–whether the issue concerns publicity about issues organ donation from Jews to “the general population” or the use of organ donor cards. Indeed, Mr. Berman has publicly replied to my protest of this lack of rabbinic participation in his board of directors by claiming that rabbinic participation is not required.

7) The venue for halachic discussions on a topic of such complexity is, and remains, the beis medrash, beis din, or yarchei kallah. After spending some time in Israel in 1989 interacting with Rabbi Dr. Abraham Steinberg, Rabbi Dr Mordechai Halperin, and others, I became quite interested in the brain death controversy. I left my home on the day of my older son’s bris to attend a conference on this topic, featuring the world renowned neurologist, Dr. Fred Plum, and Rabbi Tendler.

8) Over the past decade, in various yarchei kallahs (see http://www.j-c-r.org for details) and seminars, I have had the advantage of discussing with, and learning the sugya of brain death and related end-of-life issues from, such personages as Rabbi Dr Avraham D. Abraham, Rav Simcha Bunim Cohen, Rav YS Elyashiv, Rav Zalman Nechemiah Goldberg, Rav Jacobovits, Rav Simcha Bunim Lazerson, Rav Yehoshua Neuwirth, Rav Herschel Shachter, Raav Moshe Sternbuch, Rabbi Dr Akiva Tatz, Rav Mordechai Willig, Rav Yitzchak Zilberstein, and others. I made a special trip to discuss this with Rav Aharon Soloveitchik ztl. All of these distinguished rabbonim, with the exception of the Rishon Le’Tzion, Rav Mordechai Eliyahu (for whom I served as translator), all of the rabbonim with whom I talked and from whom I learned rejected brain death as halachic death.

8) As coordinator for these programs, I again invite anyone and everyone interested in this topic to join us for any of the yarchei kallahs (www.j-c-r.org) held on this topic, worldwide. Let’s learn the sugya together, debate, argue, and … grow in our understanding, realizing our obligation to follow our halachic authorities, even if as Rashi notes they seemingly claim “right is left” or “left is right”. There is wisdom to be gained from learning these topics directly from our world-renowned halachic authorities.

Respectfully,

Leon Zacharowicz MD MA