Winter Harvest
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.”
I applaud R Shafran for his mentioning RHS and R JD Bleich’s POVs on this issue. IMO, articles of this nature illustrate what we need more of-mutual appreciation of Gdolim.
I’d like to point out a misrepresentation in this article.
Rav Shlomo Zalman Auerbach was not against brain death. He simply required criteria of total brain death, which is much harder to ascertain.
Please speak to Rabbi Prof. Avraham Steinberg who sat for many hours with Rav Auerbach regarding this issue.
I heartily recommend seeing the video interview with him on the Halachic Organ Donor Society Website – here (see the lengthy hebrew one): http://www.hods.org/pages/video/SteinbergHeb.html
For the record, I have filled out a donor card with the following box checked: “On the condition that a clergyman of my families choosing will permit the donation after my death”.
I also find fault with this article for being so one sided.
R’ Moshe Feinstein defined death as the cessation of breathing – even if the heart is pumping. He wrote a t’shuva to Dr. Bondi to that extent, and it has been clarified numerous times. His son R’ Dovid has been clear about this matter numerous times, and if that is the criteria, then brain death is considered death. For some reason, that opinion does not earn merit in the article.
Additionally, in 1986 the Chief Rabbis of Israel set up a committee to determine the halachic issues of braindeath, and on this committee were many important Rabbis – Rabbi Lau, Shear-Yashuv Cohen and Rav Zalman Nechemia Goldberg, among others. The committee determined that in their opinion, brain death is halachic death, and set criteria for organ donations in Israel. Rav Mordechai Eliyahu and Rav Avraham Shapira were the Chief Rabbis of Israel at the time, and they too are great talmidei chachamim.
In any case, the article above was very one sided on an extremely complex issue that has valid views on both sides of the issue.
Does anybody have any text that states R. Dovid Feinstein’s opinion? I have heard directly from RHS that R. Dovid had told him the exact opposite – that RMF did not approve of brain stem death as the halakhic criteria of death. I have seen one letter written by R. Dovid but that was regarding a responsum in YD 3, not in the letter to Dr. Bondi. I have heard that the letter to Dr. Bondi was perhaps a forgery. If anybody has any proof for R. Dovid’s opinion so that I can better understand it, I would greatly appreciate it.
I have seen the video at HODS. R. Dovid never (listen carefully) states that RMF held brain stem death to be halakhic death. He is very careful with his word choice. I have listened to it several times – I believe that he is being intentionally cautious.
How sad it is to see a complex halakhic issue simplified in this way.
The criterion for the time of death is a matter of dispute among the great poskim. As has already been pointed out by others, the Chief Rabbinate of Israel holds that brain death is death. Are they right? Ask you own local Orthodox Rabbi. That’s the way halakha works. Until we have a Sanhedrin, neither Rav Elyashiv’s nor any one else’s opinions are authoritative, except for those who seek them. Influential, yes; universally authoritative, no.
Rabbi Shafran’s insinuation of a league table of halakhic authority is unfortunate. I note the way Rabbis Schachter and Bleich are tacked on the end as “leading scholars at Yeshiva University”, after referring to Rav Elyashiv as being “considered by many Jews to be the most authoritative authority of Jewish law today”. It reminds me of the Jewish Observor’s infamous obituary for Rav JB Soloveitchik.
Again, it is sad to see a representative of a movement that advocates the primacy of Torah simplify a most complex issue. If his point was that HODS itself simplifies the issue in advocating the brain death criterion (and I am not clear that it does), then let Rabbi Shafran bring evidence of this and make his objections clearer. As it is, articles of this kind turn are apt to turn this most sensitive of issues into the next metzitzah befeh/idolatrous wigs… issue.
Gentlemen,
Rabbi Shafran presents some uncomfortable truths. As a neurologist with first-hand experience, I am aware–perhaps to a greater degree than most–of the complexity of the brain death issue.
Here are just a few points:
1) Rabbi Shafran correctly presents the current situation, wherein there is near-unanimity amongst halachic authorities in all camps of orthodoxy, against accepting ‘brain death’ as equivalent to halachic death.
2) I have personally discussed the Chief Rabbinate’s decision with one of the former chief rabbis involved.
Anyone who reads the decision will quickly realize it was limited to accident victims in Israel (actually in Hadassah Hospital), with an objective brain auditory evoked potential test, and with a rabbinic member of the brain death. Applying this limited decision of the former chief rabbis [which was not accepted by the great majority of halachic authorities] willy-nilly to ‘brain death’ cases in the U.S. would be an unprecedented act, and anyone seriously involved in halacha knows this would require the approval of major halachic authorities for people to accept it.
3) The novel idea of claiming ‘brain death’ as determined by clinical doctors is equivalent to decapitation is something I leave to halachic authorities, but anyone involved in brain death cases knows that there are a myriad of problems, not the least of which is the apparent persistence of brain function including the hypothalamus and possibly other areas, in a significant minority of cases wherein the secular medical establishment is happy to say the patient is ‘brain dead.’
4) The recent finding that an apparently deeply comatose patient responded as if awake (when sophisticated tests were employed) should give pause to anyone involved in brain research. The fact that the funding of such research has been cut off, as noted in the Wall Street Journal (Friday’s column by Begley), means that we can only speculate as to what have been found in other cases.
5) There is no doubt possible whatsoever that Rav Shlomo Zalman Auerbach’s psak halacha, shortly before his death, was to require cessation of the heartbeat. This is in writing, and his relatives can and have testified to its accuracy. His final opinion is similar to that of many, many other halachic authorities, including the late Rav Waldenberg (Tzitz Eliezer), ztl, and yibadel ml’lch Rav Elyashiv and virtually every contemporary posek in the Land of Israel.
6) At best, the matter is one involving life and death issues, without exaggeration, and requires decision-making by halachic authorities, not publicity campaigns and newspaper advertisements that may be even more one-sided, in the other direction, than Rabbi Shafran’s essay was claimed to be.
I invite anyone interested in learning, debating, or otherwise exploring this or related topics to attend any of the many yarchei kallahs I help run on this and other topics in medical halacha (www.j-c-r.org, click on ‘yarchei kallah’), in Jerusalem, London, New York, Detroit, Chicago, and around the world. That is the proper venue for such a discussion.
As Rav Shlomo Zalman ztl reportedly said on one occasion, when being pressed for an answer on this very topic, “Let’s learn the sugya.”
Respectfully,
Leon Zacharowicz, MD
I read the excerpt from Dr. Chen’s book that appeared in the New York Times magazine(I assume that is where R. Shafran also read it, unless he has an advance copy of the book). Dr. Chen writes eloquently about her feelings under very stressful circumstances, but that doesn’t mean that what she writes has halachic ramifications. I too have been present for organ procurement surgery, and indeed, there is little difference from surgery on living people- blood flows, the lungs move up and down, the tissues are pink and healthy- but that doesn’t change the fact that they are dead.
When my oldest child was 4 I was called to do a tahara(ritual cleaning of a dead body) on a child who was also 4, who had died in a terrible freak accident. The whole time I couldn’t stop thinking about how this could (God forbid) have been my daughter. I was shaken for days. My feelings were probably similar to what Dr. Chen felt, doing something to the dead body of someone who very much resembled some one she knew, in her case, herself. However, this again does not change the fact that death had occured, and there are no halachic ramifications of these feelings.
Finally, R. Shafran writes about donation after cardiac death(DCD), and then concludes with a(one sided, as noted by Moshe above) charge against halachic recognition of brain death. From a halachic viewpoint, DCD is totally different than brain death, and just because one holds that brain death is a form of halachically recognized death, doesnt mean that one is going to advocate for DCD. To try to blend them together is to deliberately attempt to obscure the facts, and tarnish the brain death advocates. This should be seen as what it is- a rhetorical device that is attempting to mislead the reader. I would have hoped that the spokesman for the Aguda would not demean himself or his organization with misleading arguements.
While my essay most certainly was intended to counsel great caution and due consideration of all halachic opinions with regard to establishing the end of life for the purpose of procuring vital organs, I did not take a position on the halachic issues and neither does Agudath Israel of America.
I cited the school of halachic thought that sanctions harvesting organs after brain-death as well as the one that does not. That I consider certain rabbinic authorities to be more prominent in the halacha-respecting community is, admittedly, an opinion. But last I checked, I am entitled to one.
The reason Moshe might have read my essay as “one-sided” is that, even though I explicitly stated that there are two schools of thought, the gist of my article was to stress caution. And the reason I chose to do that is because many articles have appeared in Jewish papers that take as a given that brain-death is an acceptable benchmark for organ-harvesting. Those articles, for the most part, do not even mention any difference of opinion at all. I intended my piece as a corrective to that sort of oversimplification.
And it’s not only articles. Even in the organizational Jewish world, the Rabbinical Council of America, for example, considers organ-donation permissible after brain death, and does not even note in its health-care proxy that there are other halachic opinions. By contrast, Agudath Israel’s health-care proxy is carefully constructed to allow for whatever opinion the potential patient’s posek opts to take. Again, the only position Agudath Israel takes here is that Jews be fully apprised of the facts, and the gamut of halachic opinions.
I am sorry that Dov Kay saw some insult in the position of my citation of Rabbi Schachter and Rabbi Bleich. No insult whatsoever was intended. As to my characterization of Rav Elyashiv, though, I make no apology.
To Dilbert (who, along with Doonesbury, is one of my all-time favorites!), I would say that I clearly stated at the end of the piece that I was not attempting to read Dr. Chen’s mind or project her feelings in any way. I was simply taking her experience as food for thought. A rhetorical device? Yes. To mislead the reader? No.
It is unfortunate that Rabbi Shafran feels it is necessary to resort to scare tactics in his choice of graphic words, such as in his title “Winter Harvest (italics mine)” and referring to a body being “sliced open for its organs (italics mine),” and by recounting stories of people thought to be dead by the medical establishment, he writes, but who were actually alive.
I imagine Rabbi Shafran is aware that with regards to organ donation, U.S. law and Israeli law agree with halacha in that is it illegal to remove organs from a person who is “unconscious,” in persistent vegetative state (PVS), or in a coma. I am surprised he brought these examples as if they were patients being considered for organ donation.
This equation and confusion of PVS and brain-stem death is a longstanding issue for the lay public, which Rabbi Shafran perpetuates, but the medical and Halachic distinctions are quite clear and unmistakable. A PVS patient, while unconscious, can breathe comfortably without any assistance. A brain-stem dead patient has no spontaneous respiration, and without a machine to artificially deliver oxygen, the heart would stop beating. From a halachic perspective, there is no doubt whatsoever that a PVS patient is alive. The status of the brain-stem dead patient is a matter of halachic debate.
According to U.S. and Israeli law, organs are removed only from a person who is defined as dead as confirmed by brain-stem death or, alternatively, irreversible cessation of autonomous respiration coupled with unconsciousness.
Rabbi Shafran condemns donation after cardiac death (DCD) because, he claims, the heart might still yet start to beat again. He also voices his concern that new diagnostic technologies might one day be created that will show consciousness in a person thought to be dead. Yet would not those concerns, that a heart might re-start or that there is undetected consciousness, also apply to patients who Rabbi Shafran considers to be dead? Perhaps, Rabbi Shafran would suggest we re-adopt the 18th century edict of the Duke of Mecklenburg and wait 3 days before burying a body?
Rabbi Shafran chose to list the names of Rabbanim that believe a beating heart is a sign of life, yet for some reason he refrained from listing the names of significant Rabbanim that accept irreversible cessation of autonomous respiration (coupled with unconsciousness) as death, irregardless of a beating heart.
That list consists of all the members of Halachic Committee of the Chief Rabbinate of Israel from 1986. The talmud muvhak of Rabbi Shlomo Zalman Auerbach, Rabbi Zalman Nechemia Goldberg, Rabbi Avraham Shlush, Rav Shlomo Aviner, Rav Gedaliah Schwartz, Rabbi Dovid Feinstein, Rav Shaul Israeli, former Chief Sephardic Rabbi of Israel Mordechai Eliyahu, former Chief Ashkenazi Rabbi Avraham Schapira, Rabbi Shmuel Eliyahu, Rabbi Yigal Shafran, Rabbi Dr. Mordechai Halperin, Rabbi Dr. Avraham Steinberg, Rav Shlomo Zalman Auerbach (footnote 1), Rav Moshe Feinstein (footnote 2), and Rav Yosef Dov Soloveitchik (footnote 3).
The Halachic Organ Donor Society does not take a position on the brain-stem death controversy. It offers a unique organ donor card that allows people to indicate their desire to donate organs either at brain-stem death or, alternatively, at irreversible cessation of heartbeat.
The HOD Society website (www.hods.org) offers articles and lists Rabbis on both side of the brain-stem death and organ donation debate. I would hope that in the future Rabbi Shafran will give adequate space to those rabbanim who disagree with him on this life-saving issue.
Robby Berman
Founder & Director
Halachic Organ Donor (HOD)Society
1. While there are those who doubt this was the position of Rav Auerbach, Rabbi Avraham Steinberg testifies that he personally heard this position from Rav Auerbach after the sheep experiment and transcribed his psak for him. You can view Rav Steinberg’s testimony on video on the HOD Society website http://www.hods.org.)
2. While there is debate about Rav Moshe Feinstein’s position based on his writings, as far as I can determine all witnesses who spoke with Rav Moshe Feinstein confirm he held irreversible cessation of respiration is death, regardless of a beating heart. Of those witnesses whom I have spoken with are: Rabbi Dovid Feinstein, Rabbi Moshe Tendler, Rabbi Shabtai Rappaport, and Dr. Greifer. You can see Rav Dovid Feinstein’s video testimony on the HOD Society website http://www.hods.org)
3. There are students of the Rav and family members who claim this is not true. Two points: First, I may be wrong but my impression is they are testifying that they never heard the Rav accept BSD and not that they heard the Rav reject it. Second, the RCA had a policy of accepting Rav Soloveitchik rulings. As such, Rabbi Binyamin Walfish, former Executive Director of the RCA, testified on video that he asked the Rav about BSD and he personally heard Rav Soloveichik rely on Rabbi Tendler’s opinion and accept BSD as death and that was the basis of the RCA resolution of 1991 accepting BSD and adopting the RCA Living Will. Rabbi Walfish’s video-testimony can be found on the HOD Society website http://www.hods.org.
The Comments section of Cross Currents may not be the most appropriate place to discuss the technical anatamic and physiological details of brain death, but some of the points made by Dr. Zacharowicz need clarification.
1. There are many halachic decisors in the Orthodox community who believe that cessation of brain function(brain death) is a halachic form of death. One only needs to look at the HODS web cite and see. To say that ‘there is near-unanimity’ against it is to either ignore these rabbis(and many others), or ignore a large non-Chareidi segement of Orthodoxy(mainly a large segement of the Modern Orthodox).
2. Dr. Zacharowicz is corect in that the term brain death has been used in many instances where brain death has not occured. However, the fact that a term is misapplied(and sometimes misunderstood) does not lessen the validity of the concept. It only reinforces the need for strict criteria to be maintained.
3. Persistant isolated function(hypothalamic function) was not addressed in the initial Harvard criteria. Some may relate to external carotid anastamoses. The importance of this from a halachic point of view is not clear. However, there certainly are patients who have NO persistant hypothalamic funciton, and have no objectively measurable brain funciton at all(in addition to having no blood flow to the brain). The use of the auditory evoked potential exam mentioned is useful as a confirmatory test only.
4. The recent finding of function in the comatose patient is very interesting and thought provoking, and has absolutely nothing to do with issues of brain death, as Dr. Zacharowicz I am sure is well aware. Patients who are in persistant vegetative states are clearly not brain dead and it is a disservice to the public to mingle the two issues.
5. A number of issues ago, the journal Tradition published two papers on brain death. They clearly show that brain death is halachically acceptable to a significant segment of the halachic community. Unfortunately, they also show some misunderstanding of the complex anatomy and physiology that underlies these issues. In addition, the medical literature is replete with articles concerning brain death, although many of them have criteria which are not consistant with halachic criteria of brain death. Therefore, unless one carefully looks at the criteria that are used in each and every article, the conclusions may or may not apply to the halachic discussion.
6. This is obviously a very complex issue, both from the medical side and the halachic side. I would hope that all who are involved would take the time to very carefully and critically look at the medical literature as well as the halachic literature.
Noam Stadlan, MD
Asst. Professor
Dept. of Neurosurgery
Rush University
Chicago
An additional point that Rabbi Shafran failed to mention, and which Robby Berman referred to: The HOD Society has a unique organ donor card that allows one to choose their definition of halachic death according to their wishes and the rabbis that they follow: 1) brain stem death or 2) cessation of heartbeat. Many people don’t realize that kidneys and corneas can be recovered for transplantation for a short period of time, even after the heart stops beating. So one can still donate a limited number of organs — even if you hold by a stricter definition of halachic death. These opportunities may increase even further as medical technology advances.
Also, to be clear, the issue at hand is not whether rabbis are for or against organ donation. The issue is what constitutes halachic death. All rabbis would support organ donation in order to save a life, assuming the requirements about their definition of halachic death were completely met. So it’s incorrect to say that a rabbi is for or against organ donation.
Michael Feldstein
Stamford, CT
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
“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.
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.
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.
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.