Sunday, January 16, 2011

My old essay on the determination of death

The Determination of Death: Halachic 

 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

 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

 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 harvesting 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 harvesting; 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

 The proponents of cardiac death as the determinant
of death obviously reject these two proofs.  To begin with,
they differ in the interpretation of Rashi 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 pesak 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 10:254).  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 pesak 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 these 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 sufficient
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 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 dei'ah es Hashem.


  1. This statement "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."

    is just false. They can prove that once brain stem death occurs the brain, in fact, starts to go through a process called liquifaction.

    Also, don't Rav Tendler and Rav David Feinstein, Reb Moshe's son and son-in-law, say Reb Moshe held brain stem death is considered death?

    Also, I am surprised that the fact that NO ONE has awakened from brain stem death, EVER, is not a factor in the halachic process.

    I think most people involved in the debate do not understand the difference between brain stem death and a vegetative state.

    Also, I am unsure why it is assur to take someone off a respirator and wait to see if they can breath on their own. If they can't, that is halachic death according to all. The respirator should then be reinserted and the organs taken because it is a case of pikuach nefesh and in a case of pikuach nefesh we DO desecrate the body.

  2. This essay is 17 years old. Much has changed since then. I do not wish to get back into the issue and its developments. R' Shalom Spira covered that ground admirably at

    I merely posted the essay for anyone who might get some to'eles out of it.

    The issue that concerns me now is RNS's extra-halachic methodology of psak.