Friday, April 01, 2005

An Old Piece on the Halachic Definition of Death

Relevant to the inyana d'yoma of the Schiavo case:

THE DETERMINATION OF
DEATH: HALACHIC CONSIDERATIONS
Rabbi Yosef Gavriel Bechhofer


In light of the recent endorsement by the Rabbinical Council of America
of brain-stem death as a valid Halachic criterion of the death of a person,
it is timely for us to explore the biological and halachic background of
this issue.

The two main parts of the brain are the upper brain, which controls the
conscious activity of the individual; and the brain stem, which transmits
the upper brain's "directions" to the rest of the body and controls vital
body functions, including respiration and cardiac activity. Therefore, even
if a person's upper brain ceases to function (as would be indicated by a
flat E.E.G.), a person would still be capable of autonomous bodily
functions, which are controlled by the brain stem. Such a person is in an
irreversible coma - what is commonly known as a "vegetable".

When the brain stem ceases to function, most autonomous bodily functions
also cease - including respiration. If supplied with oxygen (via a
respirator) and nutrients, the heart, however, may continue to beat for
several days. This is because the heart, besides being regulated by the
brain stem, possesses an independent natural pacemaker which regulates its
activity.

All Halachic authorities agree that it is not necessary, indeed
prohibited, to put a corpse on a respirator in order to simulate breathing.
This is desecration of the dead, a serious violation of Torah law. On the
other hand, all authorities agree that a polio victim who is dependent on
an iron lung, but whose brain is fully functional, is very much alive. A
doctor who "pulled the plug" on such an individual is a shofech damim. The
question involved in the RCA resolution concerns an individual whose brain
stem is clinically dead, but whose heart is still beating because he is
being maintained on life support systems. Is such a person considered
Halachically dead or alive? The primary practical ramification of this
question is organ transplantation. Most organs cannot be successfully
transplanted if harvested from a donor who has undergone cardiac death,
i.e. whose heart has stopped beating. Therefore, if we accept brain stem
death as a legitimate Halachic criterion, we may allow harvestation of
organs from such a donor. If, however, we conclude that cardiac death alone
constitutes Halachic death, the possibility of harvesting organs for
transplantation al pi halacha is practically nil.

It is important to clarify that this discussion only relates to whether
the donor via a proxy, or his or her relatives, may authorize harvestation;
and to whether a physician who is shomer mitzvos may harvest organs from
such a donor. If, as is most often the case, the organ is harvested anyway
from a "willing" donor by a willing physician, there may be no issur to
receive the donated organ. Much ado has been made over the fact that
although in a teshuva written in 1970 (Igros Moshe Yoreh De'ah 2:146)
HaGaon HaRav Moshe Feinstein zt"l called heart transplants "double
murders", he nonetheless later advised certain critically ill individuals
to undergo this procedure, and receive a new heart. In fact this ruling
only reflects that a procedure that was originally extraordinarily
questionable, resulting invariably in the recipient body rejection of the
new heart - thus in fact hastening that person's death - thanks to advances
in the use of rejection-preventing drugs is now normally successful at
prolonging the recipient's life.

The Halachic definition of death is discussed in Mesechta Yuma 85a. The
Gemara there concerns persons trapped beneath a collapsed building on
Shabbos. Obviously if there is a possibility that these persons are alive,
one is required to be mechalel Shabbos in order to save them. The moment,
however, one ascertains that a person trapped under debris is definitely
dead, one must cease desecrating the Sabbath and wait until nightfall
before continuing the process of removing the body. How does one determine
if the person is dead? According to Rav Pappa's summation, if one began
checking the body for signs of life from the feet there is a disagreement
if one checks up to the heart or continues to check up to the nostrils. If,
however, one begins checking from the head down, all agree that if one
checked the nostrils and found no breath, one need not go on to check the
heart. The Gemara, and the classical poskim (Rambam, Hilchos Shabbos 2:19,
Shulchan Aruch Orach Chayim 329:4) only mention the criterion of
respiration as a criterion of death. The proponents of the brain stem death
criterion argue that by virtue of its omission, the Gemara and the poskim
clearly are indicating that cardiac death is not a necessary criterion of
death. The Gemara's reliance on cessation of autonomous respiration as an
indicative of death clearly indicates that the death of the brain death
which controls that activity is a sufficient determinant of death.

The proponents of the brain stem death criterion also cite the Mishna in
Ohalos 1:6 as proof of their position. The Mishna there discusses the point
in time at which a corpse begins to emit tumas mes (the degree of impurity
associated with death). The body of a person who has been decapitated is
metameh immediately after the head has been severed from the body. The
Rambam there points out that this is true even if the body is still moving,
as these movements are similar to the tail of a lizard which writhes even
after being severed from its body - since this movement is not controlled
by the source of control in the brain, it is not regarded as indicative of
any residual life (this ruling is codified by the Rambam in Hilchos Tumas
Mes 1:15). The proponents of brain stem death as the definition of death
regard brain stem death as "physiological decapitation", i.e. the brain has
been severed de facto by virtue of its clinical death from the body. Any
remaining heartbeat must therefore be regarded as equivalent to the
movements of the headless torso of the decapitated body, and thus not
indicative of any residual life.

The proponents of cardiac death as the determinant of death obviously
reject these two proofs. To begin with, they differ in the interpretation
of Rash i in Yuma. Rashi there explains that the situation in which we
found the person in question which requires us to check his breath is: im
domeh l'mes, she'eno meziz aivarav. The brain stem death school holds that
this phrase refers to a lack of external movement, i.e. brain and brain
stem controlled movement. The cardiac death school of thought holds that
this phrase refers also to lack of internal movement, i.e. lack of
heartbeat. They sustain this position further by citing the Teshuvos Chasam
Sofer Yoreh De'ah 338 who defines death as: kol she'achar she'mutal k'even
domem v'ain bo shum defika v'im achar kach batel haneshima, ain lanu ela
divrei Toraseinu hakedosha shehu mes. The Chasam Sofer clearly introduces
the element of defika - pulse - into the equation of death. He defines
death as the presence of three criteria: 1) lack of movement; 2) lack of
pulse; 3) lack of respiration. It would seem that the absence of any one of
these three indicators would prevent us from pronouncing such a person
definitely dead. HaGaon HaRav Shaul Yisraeli shlita, who wrote the Halachic
basis for the ps ak of the Chief Rabbinate of Israel (Ass ia, 11:2-3)
offers a different interpretation of this passage in the Chasam Sofer, that
the true criterion of death is the absence of spontaneous respiration;
therefore, even if there is no movement nor pulse, one must still ascertain
the absence of respiration before pronouncing death.We shall leave this
dispute unresolved, as there is no consensus on it among the poskim (see
the ruling of HaGaon HaRav Shmuel HaLevi Vosner shlita ibid., and Teshuvos
Tzitz Eliezer 9:46 and 10:25,4). One must bear in mind that in a case of
doubt as to the meaning of a ruling in hilchos shfichas damim it is far
better to err on the side of safety and refrain from possibly hastening a
death. The proponents of the cardiac death criterion also cite the Teshuvos
Maharsham 6:124 who states that even if respiration has ceased, so long as
some sign of life remains in any of the other organs of the body, we do not
regard a person as definitely dead.

As to the proof from Mesechta Ohalos, the cardiac death school maintains
that we have no right to extrapolate from the case of physical decapitation
to a case of physiological decapitation. In this vein, HaGaon HaRav Shlomo
Zalman Auerbach shlita (quoted in Dr. Abraham S. Abraham's Nishmas Avraham
339:2) writes that it is difficult for him to believe that it would be
possible to maintain respiration in a clinically brain stem dead person if
his brain was in fact completely dead. Medical technology is constantly
evolving. In 1971 the authors of an essay in HaDarom (no. 32) proposed that
Halachic death be determined on the basis of a flat E.E.G., i.e. upper
brain death - which even the medical sector now rejects as inaccurate. It
is possible that several years from now some function will be detected in
what is now regarded as a clinically dead brain stem, thus invalidating the
current definition of death even from a scientific perspective. Again, in
matters of life and death one must be certain beyond a shadow of a doubt
before acting.

The RCA resolution quote three sources as its basis. One is HaGaon HaRav
Yoshe Ber Soloveitchik shlita (yirapehu Hashem). Any possibly extant
teshuva from Reb Yoshe Ber is not in the public domain, and therefore not
available for analysis (parenthetically, it should be noted that the
publisher of the Midwest Jewish Week, Robert Gibber, related to me that
HaGaon HaRav Aharon Soloveitchik shlita told him that in fact this is not
his brother's position). A second is the ruling of the Chief Rabbinate of
Israel, written by Rav Yisraeli, mentioned above. This ruling relies
primarily on the third source, HaGaon HaRav Moshe Feinstein zt"l. In order
to clarify Reb Moshe's position it is important to examine his second
teshuva on the determination of death, written in 1976 (Igros Moshe Yoreh
De'ah 3:132). Reb Moshe discusses there cases of individuals who are
incapable of autonomous respiration, but are on life support systems. Reb
Moshe rules that persons who have reached this state as a result of a
debilitating disease may not be disconnected from their respirator. If,
however, the system went off on its own, one is not required under certain
conditions to reactivate it. Reb Moshe then draws a distinction between
this case and the case of a person who has been wounded in an automobile
accident or a similar incident. In these cases, says Reb Moshe, the
cessation of respiration is due to the contraction if certain nerves.
Therefore it is possible that after some time on a respirator the nerves
will again expand and work autonomously. Hence, even if no vital signs are
readily apparent, it is possible that these people are not yet dead (as Dr.
Abraham points out, in understanding Reb Moshe's psak it does not matter if
his perception of the clinical reality was correct, but rather only what
his perception was - only once that is clarified may we extrapolate to
other cases). Therefore, says Reb Moshe:

V'kaivan she'ata omer she'ata ika nisayon she'rofim gedolim yecholin
l'barer ... laida she'nifsak hakesher sheyesh liha'moach im kol haguf ...
v'gam she'kvar nirkav ha'moach ligamrai v'havai k'hutaz harosh b'koach,
she'im kain yesh lanu l'hachmir b'ailu ... v'af she'aino noshem klal blo
ha'michona shelo yachlitu shehu mes ad sheya'asu bedika zu, she'im yiru
sheyesh kesher liha'moach im haguf af she'aino noshem yitnu hamichona b'piv
af zman gadol, v'rak k'sheyiru al yidai habedika she'ain kesher liha'moach
im haguf yachlitu al yidai zeh she'aino noshem limes.

[Free Translation] "And since you say that now there is a test that great
doctors can thereby ascertain that the connection of the brain to the
entire body has been severed, and also that the brain has rotted
altogether, rendering the victim as if he was decapitated, we should
therefore be stringent in thes cases and even if one cannot breathe at all
without a respirator he should not be pronounced dead until this test is
performed, that if they shall discern a connection between the brain and
the body - even if the victim is not breathing at all - they should put him
on a respirator, even for extended periods of time, and only when they see
by this test that there is no connection between the brain and the body may
they pronounce this victim that is not breathing dead."

Some poskim derive from Reb Moshe's usage of the concept of physiological
decapitation that Reb Moshe here condoned the acceptance of brain stem
death as a suffice int criterion of death. Dr. Abraham (ibid.) points out
that this is definitely not the case. Reb Moshe clearly makes use of brain
death only as a chumra, an additional factor to be taken into account in
addition to and beyond the previously accepted criteria (which he defined
in the earlier teshuva explicitly as contingent on cardiac death).
Furthermore, Reb Moshe understood that the tests employed in determining
brain stem death actually indicate that the physical state of the brain has
decayed and rotted into "mush" (which in fact the tests do not measure -
the test approved by the Chief Rabbinate measures "auditory nerve-brain
stem evoked response"; see Assia ibid.). Even so, Reb Moshe did not rely on
this criterion l'kula. There is no evidence in the public domain that
indicates that Reb Moshe ever issued any psak overturning this teshuva.

In the final analysis, although there exist sevaros likan ulikan, such an
issue is of the gravest Halachic severity, touching as it does on the
subject of shfichus damim. Rulings in these areas must stem from writings
of the foremost gedolei hador which are available to talmidei chachamim di
b'chol asar v'asar to analyze and consider le'asukei shmatta aliba
d'hilchasa. The RCA is probably the most widely respected and and accepted
Rabbinical organization in the world. It is out of a sense of chibas
hakodesh that we raise these points for consideration in order to further
the clarification of this matter, u'mal'a ha'aretz de'ah es Hashem.

10 comments:

  1. Dear R' Bechhofer

    An interesting site that contains some interesting articles about this topic can be found here

    http://www.hods.org/pages/Articles.asp

    Congrads, on the new blog. Keep up the great work

    Regards,

    Rael Levinsohn

    ReplyDelete
  2. I should really have posted a disclaimer - this is an old essay, there have been some developments since, but the basic premise remains intact.

    ReplyDelete
  3. Thanks for this interesting article!

    Out of curiosity -- where was it published, and when?

    Have you considered submitting it to JLaw.com?

    Kol Tuv,
    Uri Cohen

    ReplyDelete
  4. It's from the early nineties, published in a short-lived Chicago Jewish newspaper calle the "Midwest Jewish Week." I doubt the essay is either scholarly enough or au courant enought to go to JLaw.com.

    ReplyDelete
  5. I am currently interning at the Southeast Tissue Alliance, an organ and tissue recovery and donation center. I have noticed, as I speak with my family and friends, that a good portion are either unaware of- or have misconceptions about- the Judaic stance towards donation. Some think it is simply not allowed and others think it is only accepted by conservative or reform sects.
    I am trying to get the word out. Do you know of a good resource for this topic?
    Excellent essay.
    Toda raba,
    Rachel

    ReplyDelete
  6. While HODS has a definite bias, they seem to have done a good job amassing essays on the topic of transplantation. See:

    http://www.hods.org/English/ArticlesE.asp

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  7. As I understand it, death is the point that the nefesh leaves the body finally. If so, the question is one of whether this body is capable of connecting to / supporting a nefesh. Brain death, IMHO, would not invalidate this connection, although the person would not be able to motor the body. Heart cessation would, and this is why it is the end of life al pi chazal.

    ReplyDelete
  8. I agree with you in principle - but one must take into account the "decapitated sheep" experiment - see article #31 at:

    http://www.hods.org/English/ArticlesE.asp

    ReplyDelete
  9. I don't actually see the problem there. The Gemoro says that when the mother is going to die the vlad will die first, presumably because it is less attached to it's body. But here there was no threat to the vlad at all.

    ReplyDelete
  10. True enough. But IIRC RSZA and RYSE agreed as a result of the experiment to allow harvestation after thirty seconds of cessation of spontaneous breathing.

    ReplyDelete