Essays	Print

by Rabbi Moshe Dovid Tendler
Volume 3 , Issue 5 (April, 1990 | Nisan, 5750)

The determination of Torah Law, psak, with respect to issues on the interface between science and Halacha demands three prerequisites: understanding of Torah law as gained from the interaction between rebbe and talmid; knowledge of the scientific facts; and unimpeachable intellectual integrity. Rabbi Bleich's rejection (see, Jewish Review, Vol. 3, No. 4) of the truths taught me by the Posek Hador, HaGaon Moshe Feinstein's z"t"l must be evaluated against the above listed three principles.

I The Psak of Reb Moshe; methodology and conclusions:

A) Rabbi Bleich repeats, again and again, the canard about Rav Feinstein "not changing his mind" and makes the confusing charge that a "new set of facts on the basis of which Rabbi Feinstein is purported to have reversed his opinion simply does not exist." Who said he changed his mind? Why the debate ploy of false attribution? I stated clearly that he never changed his mind. The "new facts" simply refer to facts pertinent to a new question regarding the interface of halacha and medicine. All of Rabbi Feinstein's previous responsa referred to cerebral death as he carefully noted, kivan sheyachol linshom (because he can breathe independently). The responsum on brain death specifies "sheaino yachol linshom" (he cannot breathe independently). This responsum was written to me in response to my need for halachic directives.

B) Concerning the purported statement of Rabbi Feinstein's son Rav Dovid, shlita:

1) Again, Rabbi Bleich misunderstands Rabbi Dovid Feinstein's views. I translate freely from a letter written to me by Rav Dovid on Jan 3, 1990.

"I never spoke to my father about his halachic ruling on Brain Death. However in his responsum (Y.D. 3:132) he states that if he will not breathe again because the connection to the brain has been disrupted, then death had occurred. This was written by him in his writing of truth and none should question it."

" Rav2) Dr. Mordecai Halpern, shlita, editor of the prestigious Israeli Medical/Halacha journal, Assia, asked Rav Shabtai Rappaport, shlita, the Israeli editor of Rav Moshe's last two volumes of responsa, for clarification of the brain death ruling. In a letter dated Dec 4, 1989, which is to be published in the current issue of Assia, he answered as follows:

(Free translation) "While editing the Igrot, I spoke often by phone and then visited Rav Feinstein. He confirmed that his responsum to Rav Tendler referred to a brain dead patient whose heart was beating. Who would foolishly ask if a respirator should be removed from a patient whose heart stopped beating? Of course he permitted removing the respirator from a brain dead patient while the heart was still beating!"

Copies of both letters referred to above, were distributed to 69 participants at the January, 1990 International conference on Jewish Medical Ethics where I and Rabbi Bleich presented papers. They were made available to Rabbi Bleich. Why does he nevertheless repeat the same canard?

It is a gratuitous insult to accuse me of misrepresenting the opinion of my father‑in‑law. Why did Rabbi Bleich not speak to Reb Moshe, z"ts"l during the last five years of his life to either verify or refute my public statements? For 36 years I studied with Rabbi Feinstein, read each of his responsum, and for the last 15 years of his life I photocopied and dispatched every significant responsum he composed. I know his style, his unique vocabulary, better than anyone alive today. Nevertheless, his published responsa on cerebral and total brain death, state in plain and clear language, exactly what I have said they state without having to appeal to the "36 years of oral tradition" that Rabbi Feinstein provided me.

II On Reb Moshe's methodology

A) Rabbi Bleich writes: "I find it incredible that N.Y.C. hospitals would... breach confidentiality in permitting non‑medical personnel access to patient records." Again, "playing to a jury?" Could he be unaware that the "bread & butter" business of bioethics is the review of patient records? Every week I read the case histories from Massachusetts General Hospital in the New England Journal of Medicine along with tens of thousands of other subscribers, without violating any patient's right of privacy.

B) Rabbi Bleich writes, I am totally unable to comprehend what it is that Rebbe Feinstein might have learned from visual examination of a "brain dead" patient, or why he found it instructive to see not one but five such patients. I have seen at least five times five "brain dead" patients and have found nothing remarkable in what meets the eye."

Indeed, without a "rebbe" or neurologist to "make one see," there is "nothing remarkable." It took the great late transplant surgeon, Dr. Sam Kountz, and the present Chief of Pediatric Neurology at Albert Einstein College of Medicine, Dr. Ira Greifer, more than three years to have me understand the "organ perfusion" system known as Brain Death - and I am professionally trained in the biomedical sciences. Permit me to share what they so painstakingly explained to me with a quote from The Journal Of Critical Illness (Nov. 1989, V.4 no.11 pp 68‑9).

"Reflexes mediated by the spinal cord may be preserved in brain death, but those reflexes that require higher centers cannot be present. Thus deep tendon reflexes and Babinshis sign may be elicited in a brain dead patient. Decerebrate or decorticate posturing, superficial abdominal reflexes and grimacing in response to noxious stimuli require the participation of brain stem nuclei and are incompatible with brain death."

I needed to see ten times five patients before I could be confident that here was a dead man, for each one was slightly, and potentially significantly, different.

C) Concerning my father‑in‑law's reading or understanding English: he had greater proficiency in English than Rabbi Bleich seems to imagine. He also had superb instructors and translators at home.

III The scientific "facts" cited by Rabbi Bleich

A) He refers to a "signed editorial" in JAMA April 21, 1989 which questions the validity of brain death criteria. The authors, neither of whom are physicians, were discussants of an educational survey by Younger, et. al. published in that same issue of the journal. I quote from their editorial:

"The study by Younger, et. al. does not suggest that brain death is being misdiagnosed; indeed the diagnosis is as certain as anything in medicine [emphasis added]. There is no suggestion that patients are being declared dead or serving as organ donors who are not brain dead."

The authors do cite a personal medical opinion in which they are joined by Rabbi Bleich. They write, "The so called brain dead patient remains an integrated organism." They, and Rabbi Bleich, directly contradict the findings of the President's Commission which found an opposite conclusion based on the testimony of the finest neurologists, neurosurgeons, and physiologists in the United States. If they or Rabbi Bleich had attended the magnificent two day conference on Brain Death held on Dec 8 & 28, 1988 at AECOM, they would have heard Prof. Richard Lipton explain that actual anatomical decapitation would not interfere with maintaining the heart beat or the viability of other vital organs for some period of time. Would this headless "patient" still be an "integrated organism?" Is our mishna also in error? Tapes of these conferences, which were widely publicized, were and are available to Rabbi Bleich, free of cost.

B) Concerning the value of "blood‑flow" studies. The previously cited article in The Journal of Critical Illness (op. cit.) states, "Nuclide scanning (blood flow studies) is the most useful confirmatory test."

C) Concerning lysis of brain cells. Rabbi Bleich writes: "It is true...the brain begins to lyse (liquify)... but emphasis must be placed upon she word begins."

The facts: "Begins to lyse" is like "a little pregnant." A cell that begins to lyse is dead, dead! Read this description from the prestigious, Cleveland Clinic Journal of Medicine (Jan‑Feb 1990, page 26):

Ordinarily, as soon as the brainstem becomes affected, either directly from the initial insult or from the process of brain herniation, the person stops breathing. The resultant lack of oxygen leads quickly to cardiac arrest. However, if breathing is supported mechanically, the heart can continue beating on its own, despite total brain destruction. This condition is described as "brain death." The remainder of the body's cells can be kept alive for some time if ventilation, fluids, nutrition, and intensive nursing care are provided. The longest recorded time is 201 days. However, during this time, the dead brain tissue softens liquefies, and eventually entirely disappears, leaving a bag of scar tissue full of watery fluid. Almost always, patients are disconnected from artificial life support long before this stage is reached. "Respirator brain" is the pathological term used to describe the early stages of this liquefacative necrosis. [emphasis added]

Rabbi Bleich proudly notes that he is in the excellent company of those gedolim who oppose brain death as a criteria of death. I, too, would be honored by their association but I am more honored to know that I am not counted among those who misinformed them and thus led them into grievous error.

The Jewish Review has performed an invaluable service in focusing the light of truth and integrity on the brain death controversy. But in the process they have invalidated the defense of "ignorance of the law." If one would transgress the Sabbath to maintain the "organ perfusion" system which is the brain‑dead patient, he can no longer claim innocence. He would be engaging in a most egregious, knowing and willful violation of Sabbath law.

I have been advised that The Jewish Review has promised Rabbi Bleich the last word. I pray that it will contain a change of heart and perspective on this life and death matter. Rabbi Bleich's writings have caused families to hesitate to permit vital organ donations from a brain‑dead relative. Those waiting for these life saving organs died while rabbis debated.