Bar Kamtza Should Not Have Been Invited to This Event Either:

On Brain Death, Cardiac Death, Defining Halakhic Death, and Trying to Hurt Torah Jews Who Disagree with You

Dov Fischer

Fair-minded people are torn by the subject of when a dying person has passed away. Outside the Torah community, doctors and patients wrestle with “when to pull the plug.” With enhanced technologies prolonging life externalities, the questions become harder and more urgent for everyone. Not long ago, a shul member told me of his relative who essentially could not die, despite his dead body, because the implanted coronary device automatically would jolt electric charges to re-start the dead heart every time it stopped beating. The device was powered by a battery with a quasi-lifetime guarantee; it just would not stop working, and the lifeless body was being jolted every few minutes for days. The hospital ethics committee had to work with the device manufacturer to bring in a company specialist to neutralize the battery by remote control because they ethically recoiled from cutting open the chest and pulling out the battery to stop the device.

In this brave new world, halakhists must wrestle, too. If secular medical and scientific society agrees on a definition of when death happens, while Torah defines that stage as still a period of continuing but ebbing life, then it would be murder for a Torah Jew to acquiesce at that pre-terminal stage to ending life. This commentary does not seek to contribute to or assess the halakhic positions on the subject. Rather, it emerges from the painful way that one halakhic school has sought to advance its belief and interpretation in this debate.

If one wishes to donate body organs at death, more organs can be donated successfully if removed not long after neurological death (“brain stem death”). A machine can keep the heart pumping temporarily, supplying the organs, as they are harvested for transplant. Thus, a definition that halakhic death comes with brain stem death allows for a maximally fruitful donation of vital organs for transplant in others. By contrast, for example, if one believes that halakhic death comes at a time well after brain stem death, say at coronary death, when the heart completely has stopped, then fewer organs can be salvaged from the deceased for successful transplant. Because respected halakhists endorse donating vital organs for transplant after death, the differing views – brain stem death vs. cardiac death – carry enormously important secondary ramifications that overlay but do not transcend the existential question of when life ends according to halakhah. Clearly, for example, a prominent patient desperately waiting into his final hours for a suitable heart could be saved if someone just would find another person, perhaps homeless, with such a matched heart and murder him. But no civilized society could countenance such a value system that elevates organ donation over the donor’s life.

Tough questions these, with much at stake. In late November 2010, the Rabbinical Council of America (RCA) published a 110-page report by its Va’ad Halakhah (Halakhic Council) assessing the various positions proffered by the Torah Giants among the Poskim. The weight of the report, though not definitive, clearly positioned the RCA Halakhic Council well towards the camp that defines cardiac death as the criterion for life’s end. Thus, the other halakhic camp, which defines death as coming earlier at neurological death, brain stem death, emerged less authoritative by the report.

This is a fair disagreement, worth rigorous scrutiny and vigorous scholarly debate. Within the ultimate verdict will emerge ramifications for organ transplant and other satellite issues that also bear deep gravity and sensitivity. The subject should be debated honestly, respectfully, and fearlessly in an environment free of intimidation and devoted solely to finding the truth.

Unfortunately, one side broke those rules of Jewish fair play.

There is no more vile canard against the Jewish people than the blood libel. Over the centuries, the most heinous outright blood lies against us have inspired massacres, pogroms, even expulsions from countries. People did not know, but they trusted “learned men” who presumably did know. The “learned men,” for their own sinister theological reasons, propagated the lie throughout the Middle Ages that “they kill babies to use the pure innocent blood in baking their Passover matzah.” One foolish lie like that caused tens of thousands of murders, expulsions, and led to related lies like the “Desecration of the Host” libel. Books have been written just on that one lie, the blood libel. The lie revived in certain Tsarist and Arab societies in the nineteenth century and in twentieth-century Nazi Europe. To this day, talk of nefarious Jews, animated by hate and by pursuit of money, secretly murdering people to harvest their organs comes to life on the pages of Israel haters.

Against this background, in the face of the legitimate halakhic and scientific debate over when life ends – because all agree that vital life organs, on which life depends, cannot be removed from a living person – certain advocates for the definition based on brain-stem death circulated a blood libel. They claimed that Jews following the RCA paper’s opinion, initially weighted more heavily towards cardiac death, essentially were advocating accepting transplanted organs for themselves, taken from people they deem to have been living until the organ-removals would have murdered them, even as those same Jews never would allow any of their own to have such vital life organs harvested from them while alive. From these circles came the public pronouncements. Particularly striking, a story in the November 30, 2010 New York Jewish Week pressed the idea, pursuing this absurd premise by asking one after another interviewee whether the RCA position would mean that Orthodox Jews will be denied organ transplants by the American medical community. Does the RCA paper compel the American medical community to deny organ transplants to Orthodox Jews?

It was profoundly unfortunate, in this historic Torah debate and discussion that centers around the most sobering concepts being struggled with l’shem Shamayim, that some people sought to affect and even to pressure the scholarly and considered halakhic analyses by emerging with screeds against those adhering to the RCA Paper’s positions as originally expressed.

Non-Jews were not lining up to accuse “The Jews” or “The Orthodox” of parasitically accepting donor organs that the recipients themselves never would provide to others under reciprocal terms. Fair-minded people do not think like that. When a Christian Scientist needs blood, and quietly decides below the radar to accept a transfusion for his child without government coercion, no one screams: “Hey, wait a second! You don’t give blood, so you should not receive blood.” Indeed, even though they do not give blood, the medical society forces blood transfusions on them and their children if believed to offer life-saving possibilities. It is understood that Christian Scientists are racked by religious conscience and limited by the conduct parameters proscribed by their church.

In my decade as an attorney at the kinds of prominent law firms that pay boatloads of salary but that expect round-the-clock servitude and work, no one ever said: “Hey, why does he get paid what we get paid, and why is he getting the same bonus that I get, even though he never comes in on Saturday before 9 p.m. and always leaves early on Fridays?” It is understood that we pay in other ways. Orthodox Jews pay school taxes even though our children do not use the public schools. Our taxes contribute to the police patrols of cities where our community does not commit street crimes. We do not condition marrow donations on a litmus test, nor do we require that our blood donations be denied to followers of Mary Baker Eddy or, for that matter, of Yasser Arafat. Fair-minded people just do not think in such terms.

If a non-halakhic person, Jewish or non-Jewish, asks the hospital to pull a plug at neurological death and to harvest organs for donations, that person or family does so feeling blessed that the deceased continues to generate life, that his death has added meaning. If that same non-halakhic person just-so-happens to hear somewhere that Orthodox Jews do not allow the grieving family and the dying patient respite until the heart stops beating, they may just as well feel sorry for us as anything else. That is how most fair-minded non-halakhic people feel about Orthodox Jews and the Sabbath: “You poor person. I feel so sorry for you. You can’t watch TV, can’t go to the movies, can’t drive a car, can’t answer the phone. How awful! What do you do – just sit in the dark all day? Is there anything I can do to help you?”

Much depends on motive. Fair-minded people do not ascribe sinister intent to people wrestling with religious conscience. In this matter, there obviously is no RCA motive to blood-suck from others, just as no one Torah-observant seeks to blood-suck by accepting the availability of donor bodies or otherwise-available cadavers for medical schools while instructing clearly that the halakhic community oppose autopsies being performed on Torah adherents. Moreover, fair-minded people would quickly discover that there is no Orthodox bar to organ donation. The objection is only to the donation of hearts, which at the moment must be harvested from patients that are still considered alive by those who use traditional criteria. Orthodox Jews can and to donate kidneys and corneas, and one day will donate hearts as well, provided that medical science finds a way to use organs harvested after cardio-pulmonary death.

Among fair-minded Jews conscious that other people of other faiths and cultures share the planet with us, there are Rubicons that sensible Jews do not cross. The Kamtza/ Bar Kamtza narrative is instructive. The Babylonian Talmud (Gittin 56a) teaches that we lost our Second Temple because a party host snubbed a fellow who mistakenly had been handed an invitation to the celebration. The host saw him and ordered him ousted. The snubbed guest pleaded not to be humiliated so publicly, even offering ultimately to bear the cost of the entire party. Rabbis at the party watched the spectacle unfold and did nothing. When the guest finally was evicted, he avenged himself on everyone by proceeding directly to Rome and persuading the Emperor that the Jews of Israel were in rebellion. The Emperor had no idea, had never given the subject any thought until then.

Sometimes non-Jews just do not care about “The Jews.” Particularly in a fair-minded society like America, we are not on their minds their every waking hour. Indeed, they often wish we just would keep our “Jewish thing” to our internal universe and not emote, seemingly in every television program and every movie that they watch, about our being Jewish. We comprise two percent of this country, and the other 98% really do not care. Whether it be the Coen Brothers deprecating Torah and rabbis, or Larry David or Sarah Silverman, or the multiplicity of intermarried Jewish men writing movies and TV scripts in Hollywood reproducing on the big and small screens their marriages to non-Jewish women, always mocking Judaism and the Torah, they demonstrate a strange need to win friends by knocking the Jews, their community. Similarly, the notion that the RCA’s paper would have generated angry sermons from Presbyterian pulpits to Baptist churches is absurd. It was for internal Orthodox rabbinical use. There would have been some people, here and there, who criticized ostensible inconsistencies, but the compelling need some had to bring our internal deliberations before the world court of opinion with such strident demonization is tragic.

Thus, it was particularly disheartening that this very difficult halakhic debate, a painfully difficult subject, was marred by the effort by some to change the tenor from a mutually respectful eilu v’eilu to a public alarum and neo-blood-libel suggesting that RCA Orthodox Jews are posturing for hypocritical acceptance of organs that they themselves will not donate. Think about it: Would any fair-minded person think it hypocritical and unethical for a hospital patient to be saved with a life-saving transplant even though the recipient herself has not filled out an organ-donor card, even refusing overtly to do so? The people of America are a fair-minded and good people. They do not need their Jewish countrymen to feed them with a calf blemished by Bar Kamtza.

Rabbi Dov Fischer, adjunct professor of law at Loyola Law School, is a columnist for several online magazines and is rabbi of Young Israel of Orange County. He blogs at rabbidov.com

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38 comments to Bar Kamtza Should Not Have Been Invited to This Event Either:

  • Dovid Shlomo

    >>neo-blood-libel suggesting that RCA Orthodox Jews are posturing for hypocritical acceptance of organs that they >>themselves will not donate. Think about it: Would any fair-minded person think it hypocritical and unethical for a >>hospital patient to be saved with a life-saving transplant even though the recipient herself has not filled out an >>organ-donor card, even refusing overtly to do so?

    I thought the issue was about someone’s taking an ideological stand that something is considered murder and yet be willing to be the catalyst for it being done to someone else. (Organs don’t just “show up” or “become available.” They are removed expressly for the sake of the intended recipient. The surgeons who do so are acting as the recipient’s agent, and their services are being billed to the recipient.

    I don’t disagree with you that this debate has no place in the public sphere and that the rhetoric / tactics used by the anti-RCA parties is reprehensible, however it seems to me that you are being a bit disingenuous when assumeing that we need only worry about the reactions of “fair-minded people,” when the reality is that we have to consider how our policies look to ALL people, whether fair-minded and not.

    In addition, as I said above, I would think that, lacking an understanding of the sophisticated lomdus, even “Fair-minded people” could be excused for finding this policy not just hypocritical, but deeply offensive.

    (Again, I’m not saying that the halacha should be shaped so as to accommodate public sensibilities, but I am saying that it’s simply not realistic to deny that the “take but don’t give” policy can legitimately be considered deeply offensive to many.)

  • Miriam

    Now that the Western world is less religious, this idea of being a “fair-minded person” – instead of aligning with a religious crusade – is very common. It reminds me of eLamdan’s comment regarding “reasonable people” vis-a-vis non-Jewish viewers of the $3000 sheitl episode.

    While I’m not so sure how many of these “fair-minded people” actually put down their soda cans and get out of their armchairs to stand up for fairness (many are more interested in personal comfort), it is important to remember they are the majority of people out there. We have external enemies, but we don’t need to encourage more to join them.

    But back to the Bar Kamtza analogy, is there anything us bystanders could be doing, perhaps that will keep the Bar Kamtzas from creating bad PR?

  • Menachem Lipkin

    Actually, applying the term “blood libel” in this case is more of a blood libel than the issue at hand. Like Rabbi Fischer states, the original blood libels were just that, libels. They were falsehoods, lies specifically intended to generate antisemitism. While it may not be wise to have the discussion in “public” (something virtually, if not literally, unavoidable today), discussing whether or not it’s moral for people to receive organs if they won’t donate is certainly not a libel. And though it’s probably intended to heighten the debate, it’s far fetched to say that the intent is to generate antisemitism.

    Rabbi Fischer’s analogy to Christian Scientists taking but not donating blood is faulty on two counts. First, since when do we base our morals on the tenants of other religions? More importantly, the reason they shun giving and receiving blood is their belief that all healing should be left to God. In our case the issue is one of murder not divine healing.

    Further, this is not nearly the first time that this issue has been introduced into the public sphere. Over a year ago Israel tried to address the issue of an insufficient organ supply by passing a law giving priority to those who sign donor cards. The ethics of this law and concept have been hotly debated here for years. Also, the European cooperative that handles international organ sharing has questioned Israel’s extremely low donor rate.

    As far I as I know we don’t refrain from discussing the issue of Eiva because of Eiva. Here too, the moral component of taking without giving, no matter which side of the debate one is one, is core component of the issue and should not be avoided just because we’re worried about the ramifications of the discussion itself. While antisemites will always find reasons to hate us, more open minded, enlightened people will see this as laudable moral struggle.

  • joel rich

    In my decade as an attorney at the kinds of prominent law firms that pay boatloads of salary but that expect round-the-clock servitude and work, no one ever said: “Hey, why does he get paid what we get paid, and why is he getting the same bonus that I get, even though he never comes in on Saturday before 9 p.m. and always leaves early on Fridays?” It is understood that we pay in other ways. Orthodox Jews pay school taxes even though our children do not use the public schools. Our taxes contribute to the police patrols of cities where our community does not commit street crimes.
    ————————————————————
    While reserving comment on the rest of the post, I would like to discuss this section. I have no doubt that R’Fisher is describing his perception of the world around us. I am not aware of any studies of these issues (if anyone is, please post) but from over 30 years of anecdotal experience I would say that there is at least a significant minority (miyut hamatzui) that percieves us differently.
    Unless an employee makes it very clear how he/she is making up those hours/yom tovim etc., they will be judged accordingly in compensation, advancement and, more importantly, in the eyes of man, especially bbosses and coworkers (and so I ingrain in my firms frum associates).
    In our local town’s last election, the school budget was defeated. It was made known to our shul that the “blame” was placed on the orthodox community who didn’t send their kids there and didn’t care about quality education for others.
    As for crime, I’d say the front page “frum” criminals have done more for us than whether our street crime numbers are low.
    As R’YBS taught – it says veleh shmot in the present tense – a Jew should always feel the insecurity of just having arrived and being a stranger in a strange land and long to be home.
    KT

  • Zedd

    If cardiac death is the halachic definition of death, then is the acceptance of a heart for transplant not a tacit participation in murder? Can non-Jews, who are still bound by the Noachide laws, define death differently from halacha and therefore define away what would be murder for a Jew?

  • joel rich

    You said:Think about it: Would any fair-minded person think it hypocritical and unethical for a hospital patient to be saved with a life-saving transplant even though the recipient herself has not filled out an organ-donor card, even refusing overtly to do so? The people of America are a fair-minded and good people. They do not need their Jewish countrymen to feed them with a calf blemished by Bar Kamtza.
    ============================================

    ou might want to think about this:“According to organ trade expert Nancy Scheper-Hughes of Organ Watch (in 2001), Israel had become a “pariah” in the organ transplant world. The lack of donations due to Jewish custom heightened the disparity between the supply and demand of organs. This led to the popularity of “transplant tourism” in which patients in need of organs travel to medical centres abroad to receive organs.[11] Prior to the 2008 law prohibiting it, some Israeli organ brokers advertised on the radio and in newspapers. Kidneys, which are the most traded organ, may fetch up to $150,000 for brokers who usually pay the donors far less.[10]”

    I’m not debating the halacha, just your view of the implications.

    KT

  • Alan S.

    Dovid, you wrote: “Organs don’t just “show up” or “become available.” They are removed expressly for the sake of the intended recipient.”

    Your assertion, however, is simply not the case.

    A rabbi friend of mine sent me the following e-mail yesterday:

    “The organization which oversees all organ transplants in the USA is called UNOS
    Their FAQ page can be found on the transplantliving.org website
    See these 3 Q & A’s:
    _________________________
    How long will I have to wait?

    There is no set amount of time, and there is no way to know how long, a patient must wait to receive a donor organ. Factors that affect waiting times are patient medical status, the availability of donors in the local area and the level of match between the donor and recipient.

    How will they find the right donor for me?

    When a transplant hospital adds you to the waiting list, it is placed in a pool of names. When an organ donor becomes available, all the patients in the pool are compared to that donor. Factors such as medical urgency, time spent on the waiting list, organ size, blood type and genetic makeup are considered. The organ is offered first to the candidate that is the best match.

    How are organs distributed?

    The organs are distributed locally first, and if no match is found they are then offered regionally, and then nationally, until a recipient is found. Every attempt is made to place donor organs.
    ______________________________

    This fits with what I have been told by several cardiologists.

    There are far more potential recipients than there are donors of hearts.

    While the best case scenario is that donor’s heart be a 100% perfect fit for the recipient, that is rarely the case.

    The heart usually ends up being as close a fit as possible (thus, some patients will require more anti-rejection drugs than others).

    Within each blood type, there is a range of patients who could be potential candidates for that heart.

    UNOS decides who the organ goes to based on compatibility, illness, time accrued on the waiting list, location, etc.

    No donor heart will ever go to waste – as they are in such short supply VS. the potential recipients, and somewhere in the USA (if not the local UNOS region) a match can be found.

    As such, whether a Jewish name appears on a waiting list or not, the person who signed up to be a donor will have his/heart harvested (assuming they are still a candidate to donate when they are declared brain-dead).

    While UNOS will determine which patient on the waiting list will get the heart before it is removed, that heart would have been removed regardless of whether or not the Jewish recipient was on the list.

    I hope this helps in sorting some of this out.”

  • dr. bill

    There is little question that receiving organs but being unwilling to donate organs, is a morally difficult position. the fact that some argue it to be halakhicallly justified, only serves to place the halakha into a morally difficult position as well. Unquestionably laws of Amalek and Mamzer, to name two, place the halakha in such a light. However, in all such cases, poskim over many generations have worked to limit the scope using various halakhic mechansims.

    The issues of what is commonly called “brain death” are complex. The rhetoric on all sides has not been balanced. Unquestionably, as medical science advances, the camp of those who will accept “brain death” will grow. The debate is over whether that point has already been reached. Quoting a psak from 10+ years ago, without including its assumptions, rationale and cicumstance, is as useful as quoting a psak on a sheailah that was asked about a different event.

    There are two approaches among the “brain death adherents” – both changing continuously – one more meta-halakhic and the other more typical of halakhic reasoning. 1) meta-halakhic: Some argue that the halakha does not provide a formal definition of death; rather it provides an operational one. We need to know that absent artificial means, the patient will not ever be viable. This cuts both ways as medicine is able to more often revive and more definitively declare one as dead. The halakha relies on what it considers the state of the art. 2) Halakhic: a more traditional halakhic position continues to rely on respiration as a formal definition; however it argues for allowing a brain function mechanism to determine whether independant respiration is possible.

    Both approaches change continually. Read RMF ztl and RSZA ztl and what they struggled with; the issue is what they would have said given our current state of medical technology. While advertising the ostensible immorality of a position is hardly defensible, the language attacking one prominent rabbi and declaring a position as contrary to RSZA ztl is hardly balanced. Of all topics, this is one i would moderate off of blogs except those permitting halakhic debate.

  • mycroft

    “Would any fair-minded person think it hypocritical and unethical for a hospital patient to be saved with a life-saving transplant even though the recipient herself has not filled out an organ-donor card, even refusing overtly to do so?”

    Yes-there have been proposals in some jurisdictions that state that priority will be given for transplants to those who have signed donor cards.
    Of course, I agree that halacha can’t be changed for that reason-assuming something is rechitza one can’t change ones policy to save someone else.

  • Bob Miller

    There are many instances in halacha where different rules apply to different classes (Kohanim vs. Yisraelim, Jews vs. non-Jews…). The idea that reciprocity has to be 100% in everything, including transplants, for all people, does not seem to come from halacha. I wonder if those who believe in 100% reciprocity are motivated in this by halacha as opposed to a general sense of “fairness”. Possibly, some have darchei shalom aspects in mind regarding the transplants.

  • Michael Rogovin

    If the non-halachic community were to determine that it was permissible to harvest organs from a vulnerable population (say inmates on death row, impoverished persons, etc) in a way that was life threatening or even involving murder, and the society sanctioned this as moral under its own definitions or ethics, would we, as halachicly observant Jews accept such organs in order to save our lives? While you may say this is a legal reductio ad absurdum, I do not see the ethical distinction between taking organs from a living donor as described above and the case of brain stem death (and by the way, it is more than the heart, it is also lungs and other vital organs that require brain stem death rather than cardiac death for transplants to be done). In both cases, the “donor” is halachicly alive, regardless of how secular society views him and is being murdered in order to save the life of the orthodox Jew (would it make a difference if the organs were banked? I suspect not since a Jew would be benefiting from murder, though I can see a potential for poskim to be makel in such a case were it to become medically feasible).

    Had the RCA paper presented a more balanced and medically accurate presentation (which it purports to be but has been shown is not), then it is unlikely that the debate would have degenerated as far as it has. If some of the rhetoric on the part of the “pro-brain-stem death” criteria camp is high, so is the use of the term “blood libel” which seems to be a popular term this week. The fact is, many people feel that it is morally repugnant to adopt a public posture as a community that it is permissible to accept organs from people whom we regard are alive and are murdered for our sake. You can disagree since these feelings are subjective. But I think that trying to match over the top rhetoric with over the top rhetoric does a disservice to the discussion and turns it into a competition.

  • Ori

    Am I allowed to sacrifice my own life to save another, for example by jumping on a hand grenade? How is that different from promising to donate my organs, even when it would hasten my death?

  • yehudis

    Well, we are about to hit the point here in Israel where the priority for transplant will indeed go to those who have signed on as potential donors or whose family members have.
    This is being discussed here right now, and although it will be fought about ad nauseum, I imagine that it will eventually become fact. In a way I am ambivalent, precisely because of the point raised by commenter #1–if I am the beneficiary of an act that I consider murder, have I not participated in this issur?

  • noam stadlan

    Rabbi Fischer- Your article contains a huge factual error. The paper put out by R. Asher Bush and the Va’ad Halacha attmepted to mislead the reader into thinking it was fair. However, it was incredibly one sided and biased. I have demonstrated this in my post on TorahMusimgs.com in December . Since my name was referenced in the paper, I asked Rabbi Bush to issue either a note stating that I was not in agreement with the paper, or send out ALL the relevent medical information(which I had sent him in 2008), but he refused to do either. I am aware of some members of the RCA who also attempted to have some formal response or other positions noted and this too was refused. Essentially the paper was presented and no discussion was allowed. All the responses were, as far as I know, in Jewish papers. Because, how else were people, RCA members, scientists, and others, to dispute this biased(and in some cases, plainly incorrect) paper? Certainly it would have been better to have a quiet non-confrontational discussion or conference. But when Rabbi Bush put out his paper in the way that he did, the only option to get out the real facts was via public media.

    Bringing up the issue of blood libel is frankly inflammatory and uncalled for. Those who hold certain positions should be comfortable defending those positions. If your positions make you uncomfortable, perhaps those positions need to be re-examined.

  • Dr Mike

    The difficult with this post is that it gives little more than lip service to the multiplicity of legitimate opinions as to when death occurs, either with brain stem or cardiac death, and then goes on to act as if cardiac death is the de facto accepted position by all groups involved.
    The other problem is that while the outside world does not obsess over us as much as we would like to believe/fear, it does pay more attention to us than to many other ethnic groups far larger than us. Certainly our cause is not helped when certain groups claim that their position on when life ends is THE position al pi halacha, then declares that opposing or different opinions are murder, and then says that it’s okay to take organs from people who, according to them, are murder victims. While some may appreciate how halacha does not always allow reciprocity, to the outside world it very much smacks of hypocrisy.

  • Chareidi Leumi

    How is this more of a “blood libel” than what R’ Elyashiv wrote about the opposite halachic opinion:

    “בעניין השתלת הלב, או שאר איברים לצורך חולה מסוכן, בזמן שלב התורם פועם ומוחו כולל גזע המוח אינו מתפקד כלל הנקרא ‘מיתת המוח’ – דעתנו שאין שום היתר להוציא אף אחד מאבריו ויש בזה משום שפיכות דמים”

    Is this not implicitly accusing the opposing halachic opinion as murder?? You can not have it both ways. If pointing out that people who advocate the receiving of organs but not the donating of organs are basically advocating – leshitatam – that orthodox Jews benefit from the murder of others is a blood libel. Then it is also a blood libel to claim that those who advocate halachic post-brain-death organ donation are guilty of murder.

    [YA – It is not the strong words that make it a blood libel.

    Stating that some Orthodox Jews accept donor hearts but will not donate themselves is accurate.

    Stating the same in public, for the purpose of inciting it to change existing policies towards allocating hearts is incitement, and repugnant. It is still not blood libel

    Stating the above and adding that those recipients live by a flawed, hypocritical system that does not allow them to donate to others, and that they immorally benefit from the murder of others is a blood libel. It rises to the bar because it contains two elements: incitement of others against one group, and icorporation of lies. (Those who reject brain death still donate other organs, and one day will likely donate hearts as well; they do not callously benefit from murder, because the murder will take place regardless of whether they receive the organ.)

    Stating – not in the Jerusalem Post or the NYT – that those who take organs before criteria of death are satisfied commit an act of murder according to those who accept those criteria is neither blood libel nor incitement. It is accurate representation.

    So is the Pope stating that for Catholics who accept life as beginning and sacrosanct from conception, that abortion is murder.]

    All in all, I don’t see how you can claim that “one side broke those rules of Jewish fair play” when statements such as the one above (as well as many stronger statements regarding those who accept some forms of brain-death as halachic death) have been circulating for a long while.

  • Rav Fischer

    Menachem Lipkin writes compellingly. I use the term “blood libel” because the comments made went beyond the euphemistic description I have offered within this Cross-Currents contribution. I choose not to reprint the libels in this journal. When I publish something, if it be a heinous quote, it thereupon can be found on Google, even as the prior journal may not come up on as early a Google page. What some have said is a blood libel.

    At bottom, if a non-halakhic Jew or a non-Jew opts, of his own accord, for his own reasons, pursuant to his own separate beliefs, to have his life ended and to have a “plug pulled” at a time earlier than I would have recommended to his family that it end, such a decision by that person is not in our hands. If it pleases that person or his family to donate organs to others in need of them, so as to impart a consolatory sense of deeper meaning in the death, that his organs are helping other people to live, there is no moral basis for refusing to accept the donation.

    Joel Rich offers some fascinating insights. Briefly, Israel is a pariah no matter what she does. She is a pariah in the UN, a pariah on certain campuses. Nothing she does can change that. She sent the best emergency response doctors in the world to Haiti, and those who hate claimed that the Israelis were there to harvest organs. See below for a link to one such observer.

    Jews who engage in economic crimes do indeed contribute mightily towards the worst of chilulei Hashem. http://ravfischer.blogspot.com/2008/12/on-bernie-who-madoff-with-money-fifty.html

    Is it immoral for someone who does not fight and risk his life in the armed forces to benefit from the safety and security that our armed forces help assure him by their service and sometimes by giving their lives for freedom? Is it immoral for someone who does not pay taxes to benefit from the infrastructure that others’ taxes provide? Different people make different decisions based on different circumstances. They participate in different ways. If an observant Jew believes that the soul leaves the body only at cardiac death, not at brain stem death, he is acting consistent with his belief by refusing to have a plug pulled at brain stem death. Yes, it certainly would be immoral and heinous for him to induce others to believe erroneously (in terms of his belief) that they should pull their plugs at brain death so that he can receive their organs. But he is not doing that. They are giving their organs anyway. The doctors at the hospitals are tellign them to pull their plugs, and the families are acquiescing. Meanwhile, our “cardiac death” adherent may already have given a kidney earlier in his life, and perhaps further has instructed that, upon his death, all organs that can be harvested should be harvested. It is disingenuous to accuse him of immorality.

    If a liberal advocates tax increases, it is not immoral for him to take deductions on Schedule A, take exemptions for his family members, and to benefit from the tax deductions that legally are available to him. One can have an honest belief, yet benefit from someone else’s contrary belief.

    To Michael Rogovin — I, too, would have liked to see more attention in that paper paid towards the neurological death (brain death) position associated with the perspectives of the Israeli Rabbanut HaReishit, HaRav Gedalia Dov Schwartz, and HaRav Moshe Tendler, among others. In the end, the RCA took the position that rabbonim should follow their respective perspectives, based on the authorities whom they follow.

    To the question asked by Yehudis: If someone’s uncle is non-observant and became wealthy through his life by profiting from hunting or some other contra-halakhic (but not secularly illegal)source of income, then opts to leave an inheritance to the Orthodox nephew, is the nephew obliged to refuse the inheritance because he always taught people not to hunt, etc.?

    To Noam Stadlan: I cannot speak to your comments about Rav Bush. The paper was a team effort of the RCA Va’ad Halakha. As I noted above, I would have liked to see more attention given to the other side’s perspective, too. When someone is unsatisfied with something in the RCA, it can be discussed openly and honestly within the RCA. You and I do not know each other, but if someone in my shul were to say to me “Rav Fischer, here is a problem I believe should be raised within the RCA,” I would raise it. We have a robust process of feedback and communication. My goodness, how you would be surprised by the intensity and robustness of our internal communications! We simply are prohbited from sharing that robust dialogue outside the walls where we discuss. That rule makes good sense because it encourages incredibly frank and open debate. The paper has been discussed. It is understood that each rav is free to follow the halakhic perspective and school that accords with his Torah learning.

    Again, regarding the term “blood libel,” When Jews criticize other Jews on a matter like this, we need to remember that we live in the following world: http://alisonweir.org/journal/2009/9/1/israeli-organ-harvesting.html
    We do not need to give the likes of this more quotes in which to luxuriate.

    Some Jewish commentators made comments that went over the line beyond fair debate and played into the universe of these sorts of people. I will not reprint thoswe comments here and provide yet another vehicle for someone to find those words via “Google.” The words were a blood libel. You do not know me, but I assure you that I do not use the term lightly, have my own boatload of academic degrees and recognize the responsibility one bears when printing such words as a Jewish scholarly commentator, not merely as a politician inundated by grievously unfair calumnies.

    Dr. Mike: My article begins explicitly by conveying that it is not written to contribute to the separate discussion between the two schools. Yes, the criticism in my article is leveled at those who are “brain death” advocates and are going outside the parameters of fair debate. However, it would be a major leap of inference for you to infer from my article that I adhere to either of the two schools. Suffice to say that HaRav Tendler shlit”a was my rebbe in RIETS and always has been, through thirty years, a dominating influence on my thinking and a Posek to whom I have turned with sh’eilot.

  • Menachem Lipkin

    Is it immoral for someone who does not fight and risk his life in the armed forces to benefit from the safety and security that our armed forces help assure him by their service and sometimes by giving their lives for freedom? Is it immoral for someone who does not pay taxes to benefit from the infrastructure that others’ taxes provide?

    These arguments, and those similar, do not hold up in comparison to the issue we’re discussing. The second issue is a no-brainer. It is 100% immoral/unethical for someone who is able knowingly withholds taxes to receive the benefits of society. If, say, all the people on a particular street in a town unanimously decided not to pay their taxes it would certainly be logical and fair for the town to decide to without fire, police and sanitation services from that block.

    In the U.S., which has a volunteer army, the argument is moot as people choose to take on the burden of protecting others. In a country that has a mandatory draft, Israel for example, one certainly can make a case (and many do) that it’s immoral not to share in serving the country.

    There are two moral issue which, I think, are valid for discussion. One is the general idea of participating in a societal endeavor for which you would expect to receive benefit from if needed. It’s simple fairness issue. If, as in the volunteer army, the supply of organs was greater than the demand then it might be more morally tenable to hold that the altruism of the suppliers could benefit all who need without expectation of a quid pro quo. However in a situation, such as is currently the case in the US and Israel, where the demand for organs outstrips the supply and people literally die waiting for transplants, then it’s certainly not unreasonable to hold, all things being equal, that one who has accepted upon himself to donate should take precedence over one who hasn’t.

    The other moral issue, which you also addressed, is the idea of benefiting from something which one considers to be murder. You may be able to create a “Talmudic” kvetch that basically says “what done is done” so why shouldn’t I be on equal footing with everyone else? However, reasonable people can certainly disagree with that position. And that’s really the issue here. Nobody has the right to shut down this discussion by yelling “blood libel” on the one hand, or complete immorality on the other hand. It’s fair discussion that we must continue to have, regardless of who’s listening in.

    And certainly, since this is clearly a case of Eilu V’Eliu, it’s not unreasonable for someone who’s on the halachic fence to look to the moral argument as a decisive factor.

    [YA – 1) I would think that the way to decide whether something is a Talmudic kvetch or a halachically dispositive argument would be to ask great tamidei chachamim. In this case, a good number of the greatest of them have weighed in, and accept it as a valid argument 2) Using a moral argument might indeed be machria in a case of elu v’elu. However, not every dispute in halacha achieves that balance. In many, if not most, there is a preponderance of evidence. The dispute over time of death criteria is of this latter category, and therefore should be solved by halachic evidence, not appeals to the moral sense of the masses.]

  • Ben

    “Would any fair-minded person think it hypocritical and unethical for a hospital patient to be saved with a life-saving transplant even though the recipient herself has not filled out an organ-donor card, even refusing overtly to do so?”

    Absolutely. If this organ could also be used to save one who did fill out an organ-donor card, then it is immoral to use the ogan to save the one who DIDN’t fill out the card. I have asked many people this question, including charedim, and they all agree that it would not be unethical for a hospital to refuse to give an organ to one who refuses to be an organ donor himself.

  • S Goldwater

    The psak to accept but not donate organs from brain-stem dead patients is moral. By refusing to donate under such circumstances, one is saying: ‘please do not kill me in order to save another’s life’. If asked by a doctor: ‘should I take the heart of this brain-dead person?’ we would surely (even according to this psak) be obliged to say: ‘please do not kill that person, even if doing so will save me’. Accepting an organ does not, however, involve such a question. What is asked of the patient receiving an organ (or their family) is: ‘here is an organ from someone who was brain-dead – can we use it to save your (relative’s) life?’ Even if one must view the organ here as the end-product of an act of murder, the murder has already occurred, and benefiting from it, while unpalatable, is perfectly moral. Does anyone argue that the organs of the victim of a suicide bomb or a shooting who proudly carried a donor-card should not be used because ‘it’s wrong to benefit from an act of murder’?

  • Charlie Hall

    “If cardiac death is the halachic definition of death, then is the acceptance of a heart for transplant not a tacit participation in murder?”

    See below.

    “While UNOS will determine which patient on the waiting list will get the heart before it is removed, that heart would have been removed regardless of whether or not the Jewish recipient was on the list.”

    This is misleading. The heart is never removed until the specific recipient is prepped for surgery. Time is of the essence; no more than four hours may elapse between the removal of the heart and the implantation of the heart in the body of the recipient. Essentially, according to the position that harvesting organs of a brain-death patient is murder, the donor is murdered for the *specific* benefit of the recipient. The heart must still be beating at the time the heart is removed from the donor. Everything is coordinated.

    You can find a description of the entire procedure, including a very informative video including a video of part of an actual heart transplant on the montefiore.org website

    Montefiore Medical Center is the main hospital affiliate of the Albert Einstein College of Medicine of Yeshiva University.

  • cohen y

    To michael Rogovin
    Rav Elyashiv forbade accepting organs from china,as they would speed the death of criminals to fill organ requests.

  • Binyomin Eckstein

    It rises to the bar because it contains two elements: incitement of others against one group, and icorporation of lies.

    Charedi Leumi’s comment smacks of incitement against Rav Elyashiv, when he is singled out because he is an easier target for incitement – by pandering to the anti-Elyashiv establishment sentiment so pervasive on the blogosphere – than R’ Shlomo Zalman, the cosigner on the very piece he quotes.

    It is also a lie, because they both retracted after the famous sheep experiment. This was written later, in response to a well-known Rabbi in the US claiming that R’ Shlomo Zalman allowed brain death:

    נתבקשנו לגלות דעתינו, דעת תורה, בענין השתלת הלב לצורך חולה מסוכן, וכן בענין השתלת שאר איברים לצורך חולים שיש בהם סכנה – הנה כל זמן שהוא מונשם ולב התורם פועם, ואפילו במקרה שכל מוחו כולל גזע המוח אינו מתפקד כלל, הנקרא “מיתת המוח”, עם כל זה דעתנו שאין שום היתר להוציא אף אחד מן איבריו, ויש בזה חשש שפיכת דמים.

    (Note the change to חשש)

    שלמה זלמן אויערבאך
    יוסף שלו’ אלישיב

  • yehudis

    Rav Fischer,
    Your comparison to the complicity in that which is either משום שפ”ד or חשש שפ”ד to being the passive recipient of an inheritance procured by “treife” means falls short. In the case of organ harvesting (let’s call it what it is), there is a direct link between a person’s legal acceptance of the organ and medical preparation for receiving it and the removal of organs prior to cardiac death, which initiates cardiac death.
    In the case of the uncle and nephew, yes the nephew may either reject the “treife” money or see that he can be mekadesh it, but the accumulation of the money was already accomplished before he came into the picture. As far as I know, the proceeds of such sales are not assur b’hana’ah. Yes, if the uncle made all of his money from the manufacture of cheeseburgers, then I think you have a real halachic problem, don’t you? And would the case of organ harvesting not be much more severe than a run-of-the-mill proceed that is assur b’hana’ah since murder is a question of yeihareg v’al yaavor?
    As an aside, I have a whole different question about the subject of organ harvesting, which is the transformation of the body into a commodity. We are going to be living in a world, if we are not already in it, where those who have the resources will have access to the organs of the less fortunate.
    When I was in university I learned a little about this process through the donation of bodies to our medical school for dissection. Whose body ends up on the table? To put it bluntly, the person who cannot afford his own burial. This is the usual course of events. Because the average person would not subject his dead body to the slow grinding away at it which is the process of use of a cadaver for study.
    Who makes a good donor? The young and healthy victim of a severe neurological trauma that was caught immediately so the person could be preserved as an ideal storage facility for his organs. Until the time comes to remove them.
    His family is prepared for this harvesting by being told that the victim is already dead. The fact that his heart beats is an illusion–he is already dead. “If we were to take him off of the machines, he would die. This means that he is dead, so now we can take him off the machines.”
    As the demand for transplant organs has grown, the definition of death has moved back. As the rising cost of medical care has made long-term vegetative states impossible to sustain, the definition of death has rolled back.
    Call me dystopian, but if things continue this way all we will see is that people who can raise large amounts of money will essentially be buying the organs of those whose families cannot afford to keep them in the hospitals or nursing facilities.
    Of course, lives are being saved through organ donation, and this is a very great thing. Nevertheless, if the poskei hador find what to worry about, I suspect that my ambivalence has some basis in fact.

  • Meir Shinnar

    YA
    Stating the above and adding that those recipients live by a flawed, hypocritical system that does not allow them to donate to others, and that they immorally benefit from the murder of others is a blood libel. It rises to the bar because it contains two elements: incitement of others against one group, and icorporation of lies. (Those who reject brain death still donate other organs, and one day will likely donate hearts as well; they do not callously benefit from murder, because the murder will take place regardless of whether they receive the organ.)
    YA suggest that the following two statements are false, allowing for the blood libel.

    1)They do not donate – he argues that they do donate, just not organs at the time of death.
    As the statement is clearly dealing with the issue of donations related to brain death – I find this puzzling.The system does not currently allow them to donate hearts, lungs, small intestines, and pancreas, and only allows to donate kidneys and liver when alive – to suggest othertise is a lie. Yes, those who reject brain death may do a great deal of good – but that does not negate the truth of the statement.

    [YA – My point was not that BD nay-sayers do a great deal of good, but that they also donate organs. Yes, they are different organs. Those who might look askance at people who “receive but do not give” might be more charitably inclined if they realized that this skewed policy does not stem from a reluctance to give organs. It is the protocol of harvesting the organs they object to, something that can and likely will change in the course of medical progress. More observers of the scene will be prepared to respect genuine misgivings about ascertaining the moment of death if it is not linked to a complete reluctance to donate under any circumstances.]

    2) They do not callously murder the donor – as he is murdered anyway.
    Several issues

    1) Metziut. While the “murder”(according to those who reject brain death) will take place, the timing of the murder and interventions prior to the” murder” are done based on the recipient and his needs – the notion that what happens to the donor is independent of which recipient accepts it reflects ignorance of the transplant process. Yes, the donor will eventually be subjected to cardiorespiratory death – but how and when is dependent on which recipients.

    2) Most of us find it morally problematic to benefit directly from actions that we view as abhorrent – even if the actions were done completely independently of us (and, as above, that is not true). Yes, there may be times when it is acceptable. Furthermore, it is difficult to judge an individual facing death willing to so benefit. However, the fact that someone does not find this morally problematic is what is most problematic at all, and suggests (IMHO) an utter failure of Jewish education. Furthermore, there is a profound difference between an individual facing a difficult choice – and for a dati community declaring that it will take but not give (or only give under very limited conditions) – which is part of the original public RCA statement – is a hillul hashem befarhesya.

    [YA – The counterargument, once again, is that our mesorah tells us to inquire of the gedolei poskim about whether something is morally untenable or a chilul Hashem. We do this even when the answer grates on our own subjective moral sensitivities. We do not discard those as without merit, but we do bow to the decisions of the greatest halachic voices. Too many of them do not agree with your position to calll it morally indefensible.]

    Lastly, kol haposel bemumo posel. The use of the term blood libel, loaded as it is, in this debate, at least suggests the realization that one’s position is completely untenable – which is the beginning of teshuva…

  • Robert Lebovits

    In the early 1900’s when Hadassah Medical School was first established there was a need for cadavers for the training of medical students. Since Nituchei Meisim is forbidden other than for the direct & imminent saving of a person’s life, the school faced the dilemma of how to acquire bodies. Then Chief Rabbi A. Y. Kook, zt”l, was consulted & a dispensation was requested. Rav Kook refused & instead recommended that the school purchase non-Jewish cadavers from abroad. The school’s dean expressed concern that this appproach would generate great anti-Semitism & Jews would be thought of as ghoulish. Rav Kook responded & said that those non-Jews who understood the sanctity Jews placed on the human body would be sympathetic & accepting. Those who would vilify us would find some other justification to do so & therefore ought not be a source of concern.
    Seems to me that this logic would apply to the issue of organ donation as well.

  • Robert Lebovits

    BTW: I attended a panel discussion where Dr. Thomas Starzl, the pre-eminent transplant pioneer, was asked his opinion about the brain death criterion. He offered his point of view that brain death is NOT the cessation of life but it is useful for the greater good. Prior to the acceptance of that criterion many doctors were very reluctant to put someone on artificial life-support for fear that they would not be able to end it if the patient remained unresponsive. As a consequence many patients were not provided with extraordinary efforts who might have then survived. Since the advent of the brain death definition – which now allows an avenue for “pulling the plug” even if the patient is still breathing – many patients are given much more aggressive treatment. Dr. Starzl stated that he believes this benefit made it worthwhile to accept the brain death view even if the true onset of death is cessation of cardiac activity.
    I wonder how many other medical experts have validated brain death for the same reason, notwithstanding the total unacceptability from a halachic perspective of such a view, without openly acknowledging the fact.

  • Rav Fischer

    In response to Chareidi Leumi’s very insightful post and question, I will offer this thought. With apologies to people of all faiths from Bulgaria, I will use the term “Bulgarians.” People who have read my prior response and my lead post will understand why. The following statement would be a blood libel against Bulgarians: “Bulgarians are very eager to harvest the hearts and other vital organs of non-Bulgarians even when they regard those peolle as still living. According to their Bulgarian definition of life and death, they would willingly murder other people — or knowingly look the other way while other people are murdered — so that the Bulgarians then can harvest those vital organs from non-Bulgarians to save themselves.” To me, that is a blood libel against Bulgarians.

    Some argue that the term “blood libel” is sacrosanct, belongs to one people in one context, in one historic epoch. I do not agree, just as I do not believe that the words “Inquisition” or “Holocaust” belong to one people in one context, in one historic epoch. The Communists perpetrated a Holocaust in Cambodia. The Turks perpetrated a Holocaust in Armenia. There has been a Rwandan Holocaust. Sadly, one can list others. And so with “Inquisitions.”

    To Ben: In America, if an undocumented alien who is pregnant breaks our laws and crosses our borders illegally, then shows up promptly in a hospital emergency room with a baby about to be born, this country gives that person immediate emergency medical care, including hospital room, medical doctors and staff, and hiugh technology. I am not guessing. I know this for a fact from my litigation years. The cost of that medical care comes from somewhere. This country has no “morality issue” with dying Bulgarian Americans who accept donated hearts, bequeathed by non-Bulgarians who opted to pull the plugs on their lives sooner than Bulgarians do. This country respects the premise that different people have different religious and cultural values, beliefs, and principles that guide their respective lives. There is no value in Bulgarian American leaders bringing their internal Bulgarian death debate before the wider non-Bulgarian American audience, accusing those with whom they disagree of advocating that Bulgarians look aside while non-Bulgarians are murdered to provide hearts for Bulgarians.

    S Goldwater, above, has said it better than I have, in fewer words. I add again: A Bulgarian in this country hears from his son that the fellow plans to join the American armed forces. The Bulgarian American teen is signing up tomorrow at the army recruitment center. The parent makes crystal-clear to the boy that, “No, you are not joining the army tomorrow. You are going to college, then to grad school, then becoming a doctor/ attorney/ accountant/ auditor/ IT professional/ engineer, etc. But you are not going to the army. No son of mine is going into the army or navy at a time of volunteer service.” One by one, members of the Bulgarian family are recruited to “talk sense” into the boy. His Bulgarian teachers are recruited for this role. His uncles, aunts. His girlfriend, if he has one. That Bulgarian family, meanwhile, enjoys all the freedoms and liberties, the security and the financial opportunity that is possible only by the grace of G-d and thanks to the national service of those who are prepared to die, and who often do lay down their lives, in places like Iraq and Afghanistan, so that these American borders may repose safe and free. Just another thought about this “morality issue” of accepting the benefits of someone else’s choice, someone else’s death that a Bulgarian has not induced, has not encouraged, had nothing to do with, but from which a Bulgarian is profoundly willing to stand at the front of the line to benefit.

    Bottom line: It is a tough debate. There are two valid schools of Torah thought. We should respect the purity of purpose and the nobility of honor with which each school comes to the table in this discussion. Debating points should not be made by playing the politics by which the Other’s moral or ethical decency is negated cynically. It is immoral to call a moral person immoral.

  • Chareidi Leumi

    >Charedi Leumi’s comment smacks of incitement against Rav Elyashiv, when he is singled out because he is an easier target for incitement – by pandering to the anti-Elyashiv establishment sentiment so pervasive on the blogosphere – than R’ Shlomo Zalman, the cosigner on the very piece he quotes.

    You are giving me too much credit. I used the above quote because I was looking for examples of what I considered to be similar rabbinic statements from the other side thereby trying to show that the “one side breaking the rules of fair play” arguments was disengenuous. On the net, I found the above quote and it was attributed to R’ Elyashiv. The fact that he was not writing alone is irrelevant – nor is the fact that they changed the words later. In the original verbase, they are denying the existance of another halachic opinion and at the same time accusing those who follow it of murder. I am well aware that in traditional halachic discourse, one states their opinion as the one true halacha, period. However, since we live in a world in which people who are not converstant in halachic language also read public pronouncements, then the consideration of how something sounds to the rest of the world should also be taken into account. And how, the more stringent pronouncements sound to others is something that I am quite an expert at – since I am often the address for nearly every non-religious person I know when they are confronted with such statements.

    Rav Adlerstein’s clarification above that the “blood libel” is not the advocation of a particular halachic approach nor is it the advocation of such an approach in public is actually a counter to what I wrote. Althought I do not agree with Rav Adlerstein’s chilluk that the receipient does not benefit from murder since the transfer of hearts is done by coordination of the “death” of the donor (according to the shita which only considers respiratory-cardiac death as death) with the surgery of the receipient. It is not as if person A’s family makes a decision to donate an organ and the heart is removed and then a search for a receipient begins. The receipient is always found first – and in the case where there is no other match, then no action will be taken until one is found. Therefore, if someone accepts a heart transplant, then they are, according to the approach that accepts only respiratory-cardiac death as death shortening the life of the donor for the sake of saving their own.

    Unless there are new medical developments of which I am not aware, I can not understand how this would not be seen as grave hypocracy. I am sure that there are scenarios different than the one I discribe, but from what I have read, the above is the standard procedure. Pointing out this hypocracy is not a blood libel – though I share and agree with the criticism that this should not be done on the pages of public US media. These discussions should be kept inside and should not be had in the general domain.

    My true hope is that medical science advances fast enough as to make this entire discussion purely theoretical. Until then, I fear that the information age will force all of us to see more of the kind of halachic discourse that Rav Adlerstein bemoans above.

  • dr. bill

    Robert Lebovits and others: if a brain activity based test, administered accurately by mumchim, determined that an artificially beating heart could not ever again given current medical technology beat on its own nor can the patient ever again breathe on their own, would you allow harvesting organs? That seems to me to be one currently relevant question. (i do not doubt that some / many in the medical community would harvest organs on a totally non-halakhic basis; but that is a red-herring.) How would the precise scenario described impact the psak? said otherwise, does the (modern) existence of artificial methods to maintain respiration imply that organs cannot be taken from an individual that is provably only able to breathe on that basis? (If we are only arguing about what provable means, that is a totally different issue.)

  • Robert Lebovits

    dr. bill:I am certainly not an expert in halachic definitions of death so I have no standing to allow or disallow any act. If the question you’re posing is: can there be a circumstance in which the harvesting of organs is permissible from someone about whom we know conclusively that the cardiac function is entirely artificial, I suspect the answer from the cardiac death position would remain:”NO”. While science explains the manner in which the physical universe operates – such that a cessation of brain function would “naturally” result in death – as frum Jews we do not ascribe the process of healing to the physical world alone. We identify the Ribbono Shel Olam as the Rofeh Cholim while we are his agents & technicians. According to those poskim who state that the Torah requires a heart to stop before death is declared, perhaps they have concluded that this is the absolute standard by which Hashem chooses to order His world, irrespective of our understanding of science & technology.
    I am curious as to the lack of attention paid in these comments to the presence of the Borei Olam in all things medical, as if this halachic dispute was strictly a question of the nature of physical reality. Assuming both positions are Torah L’shmah, how could there possibly be negative consequences, such as denial of life-saving treatment, to someone who honestly adheres to a legitimate halachic line of reasoning which does not allow donation prior to cardiac cessation while permitting the receipt of organs? I think poskim of stature can answer the question of HOW to be a recipient.

  • noam stadlan

    Rav Fischer- since you note that the RCA is an open environment, please talk with Rabbi Bush. If he contradicts anything I have written, I will be happy to provide you with documentation. And then I anticipate that you will put up a corrected version of your post here at Cross Currents. Thank you

  • L.Oberstein

    Please clarify why this issue was revived? Has anything new happened in the past 30 years that upends the old conclusions? What caused the RCA to open up an old issue after all these years?
    In orthodox Judaism, to my knowledge, there is room for more than one great halachic deciser . It seems that for a long time it was not simmering but now has become a “Mi Lashem alie” call for unanimity.
    As far as bad behavior is concerned, tragecally, there is a lot of that to go around . I think that in former times, they burned the books of the Rambam. Is this a true machlokes lesheim shamayim or does everyone have an agenda and are using this issue to separate the camps.i fear that a lot of people welcome machlokes because it makes them players, especially those who aren’t too learned but can latch onto an issue like this to make a stand for “truth ,justice, and the American way” (If you don’t recognize this quote from Superman, then you are showing your youth.

  • dr. bill

    Rabbi Oberstein, You ask: “Please clarify why this issue was revived? Has anything new happened in the past 30 years that upends the old conclusions?” The question has been raised again because of further advances in the ability of brain based tests to make various determinations, hence my question above. You can expect yet further progress in making such tests even easier to administer. While some accepted brain death in the past, the sheailah will continue to present itself to those who opposed it, as medical technology advances. There is a deeper halakhic debate that these changes brings into focus; but this is not the ideal place for halakhic discussions.

    Why the RCA raised the issue I will leave to others to explain.

  • Avraham Yosef Follick

    > “Althought I do not agree with Rav Adlerstein’s chilluk that the receipient does not benefit from murder since the transfer of hearts is done by coordination of the “death” of the donor (according to the shita which only considers respiratory-cardiac death as death) with the surgery of the receipient. It is not as if person A’s family makes a decision to donate an organ and the heart is removed and then a search for a receipient begins. The receipient is always found first – and in the case where there is no other match, then no action will be taken until one is found. Therefore, if someone accepts a heart transplant, then they are, according to the approach that accepts only respiratory-cardiac death as death shortening the life of the donor for the sake of saving their own.”

    According to my poor understanding of Halachah We are not, in general, allowed to kill ourselves or allow ourselves to be killed. We don’t own our bodies. HKB”H does. We need to do almost anything possible to save our own lives or the lives of others. There are exceptions. One exception is that we aren’t allowed to murder one person in order to save the life of another including ourselves. But there is an exception to that rule too based on a certain incident in Shmuel II 20:22. If we are given a choice between two possibilities, one in which we give up a particular person to die, and the other in which we don’t give him up to die and he will be killed anyway and we will also die, then we need to choose the first possibility and survive ourselves even if that results in the person being murdered.

    Based on this understanding and also assuming that cardiac death is the standard and also assuming that the organ donor will not be murdered until the organ recipient agrees to accept the organ donation, nevertheless if the organ recipient is in a Life-or-Death situation he would be required to accept the donation even though that would result in the murder of the donor since the donor will certainly be murdered anyway. Note that this would only apply if he was in a Life-or-Death situation. He would not be able to accept a donation otherwise.

  • Raphael Kaufman

    While organdonation may be the sheilah du jur, there are other halachic questions that come to mind. I don’t know if anyone has addressed them but here they are:

    Scenario 1: A man, R”L, goes into cardiac arrest in shul on shabbos. He is unconscious and has no detectable pulse or respiration.

    1. Is he alive or dead?
    2. If he is dead, are we allowed to be mechalel shabbos to resuscitate him? If we are permitted to do so, why?
    3. If he is considered to be still alive, what then constitutes death?
    4. If there is a minimum time requirement for lack of pulse and respiration, what is it? What is the makor in chazal?
    5. Is his wife an almonah? Can she collect her kesubah? Can she remarry without a get?
    6. Do his children inherit him?
    7. If 5 and 6 do not apply, why not?

    Scenario 2: A man enters the hospital for scheduled by-pass surgery. In the normal course of the surgery, his heart is stopped and his lungs are deflated. A device (called a heart-lung machine) now oxygenates and circulates his blood. Upon completion of the critical part of the surgery, the machine is removed and his heart and lungs are re started.

    1. Was he alive or dead during the surgery?
    2. If he was considered to be still alive, why?
    3. His heart and lungs were stopped for over an hour. If there is a minimum time requirement for lack of pulse and respiration, is it more than that?
    4. Is his wife an almonah? Can she collect her kesubah? Can she remarry without a get?
    5. Do his children inherit him?
    6. If 4 and 5 do not apply, why not?

  • L. Oberstein

    I think I figured it out. The yeshiva world feels that its poskim are the only ones who count. If it is said in the name of Rav Elyashiv, then the discussion is over, case closed, you are an apikorus if you even doubt his absolute authority.
    The dati leumi world doesn’t really care what Rav Elyashiv says, he isn’t part of their world and they are not part of his. If the Chief Rabbinate says it is ok, then who are these other people to say otherwise. The actual halachic issues and the medical facts, if there are facts, is basicly irrelevant .
    I am not being sarcastic or a cynic here. I deal with this mentality all the time. There is a complete bitul by one side of the other.
    Now, Chovevei Torah is more of a threat to the RCA than to the Agudah, so they are in a bind,they can’t sign an online petition that validates their competition. An online petition has zero validity in halacha, so it is obviously not meant to be a legal discussion but a turf battle. Rav Avi likes to challenge the establishment and establish his place on the spectrum, this is a great opportunity. I am being quite serious here. I think that battles like this one are fought on two levels and the ones who are actually bothering to take the halachic arguments at face value as the real battlefield are missing the forrest for the trees. There is a battle for the future of orthodoxy and for religion in Jewish life. The zionistg view is that we absolutely must have transplants and easy conversions for national reasons and the other side doesn’t think that these play a role in psak.

  • dr. bill

    Rabbi Oberstein, You write: “The zionistg view is that we absolutely must have transplants and easy conversions for national reasons and the other side doesn’t think that these play a role in psak.” I would be hard-pressed to believe that the national interest or any other circumstance can or should be discounted by a posek. Poskim bias towards heter or issur within the legitimate bounds of halakha. While those with a zionist view might be inclined one way, it is equally likely that those who do not have that view may incline the other way. that is the historic nature of psak on many issues.

    what one posek may view as in the national interest, another may view as a threat to that very interest. This is a deeply philosophic issue that goes to the heart of the halakhio process. of course, those who do not share the same view of the circumstance as the posek, will have a harder time appreciating the basis for the psak. it is not uncommon for this to result in a debate over sources; imho, it is more aptly a debate over how each side reads a situation and its halakhic import.