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

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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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dr. bill
4 years 7 months ago

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.

L. Oberstein
4 years 7 months ago

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.

Raphael Kaufman
4 years 7 months ago

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?

Avraham Yosef Follick
4 years 7 months ago

> “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.

dr. bill
4 years 7 months ago

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.