Brain Death and Organ Donation: An Interview with Rabbi J. David Bleich
Volume 3 , Issue 2 (Nov, 1989 | Cheshvan, 5750)
Jewish Review: Rabbi Bleich, you have published several halakhic responsa on the definition of death. Why has this issue come to be of such paramount importance in recent years, and why have there been attempts amongst secular physicians, the courts and even some halakhic authorities to clarify and redefine the criteria for death?
Rabbi Bleich: It began in the early 70's as a result of the advent of transplant surgery. The original motivation was to salvage organs for transplant purposes. The only way that you can harvest such organs is if you remove them before the heart has stopped beating. That's absolutely true with regard to the heart, the liver and the pancreas, and it is somewhat true with regard to the kidneys. With kidneys there is a window of time subsequent to the cessation of cardiac activity when they can be removed and used for purposes of transplantation to a recipient. However, with regard to other organs, such as the heart and liver, tissue degeneration starts almost immediately, with the result that if you wait for the heart to stop beating before you remove it, it becomes totally useless for transplant purposes. So there was a very strong desire, one we can certainly empathize with, to remove the organ at a time when it would still be useful for somebody else. The thought was that we have a patient who is going to die anyway, why not remove the organ at a time when it can be used to save another person's life, and since there is absolutely no way that anyone is going to agree to what is essentially an act of homicide, the only way that you can remove the organ is by finding ways and means of declaring the "donor" to be dead. Hence, comes a redefinition of the concept of death. Instead of defining death as it has always been defined, i.e., as the cessation of both respiratory and cardiac activity, you redefine death in such a way that by the time you remove the organ the person is not considered alive, and hence there is no homicide. That was the original motivation. I think that the motivation to redefine death today is somewhat different. It essentially stems from a desire to avoid keeping people on life‑support machinery where there is no longer any hope of their recovery, a desire that is based upon the expense involved, both literally in terms of the dollars and cents needed to maintain those people in acute or intensive care beds and figuratively in terms of the emotional expense, the anguish of relatives and of medical people who know that there is no hope, and who simply see no point in keeping people alive during this period of time.
Jewish Review: Why is the definition of death a philosophical, religious, or halakhic matter? Why isn't this purely a medical question?
Rabbi Bleich: The answer is very simple. Medicine does not define death. Medicine defines physiological states. Medicine can make determinations with regard to what can or cannot be done for a patient, but the concept of death is entirely extraneous to the practice of medicine. Let me explain. A physician can tell you that if you give him a cadaver taken from an undertaking establishment, there are certain things that he can do with that cadaver. He can put the cadaver on a heart‑lung machine, for example, and even cause certain metabolic activities to continue. Whether he should do it or not isn't a medical decision. It is a decision which reflects a judgment with regard to what it is that you want to do with a patient or a human organism in that state. Medicine can sustain a person who meets the neurological criteria of death and assure that whatever physiological activities can be supported will be supported. The judgment as to whether it's worthwhile doing that isn't a medical judgment at all. It is a meta‑medical or moral decision.
Jewish Review: Could you go into some detail regarding the traditional halakhic criteria for death? How were these criteria derived and was there ever really a consensus in the Talmud or among the later poskim?
Rabbi Bleich: There certainly was a consensus. How does halakha make this determination? There are a number of sources; the primary one is in the Talmud in Tractate Yoma, in regard to an individual who is found under the rubble of a caved in building, and, based upon the discussion of death that is found in that particular Talmudic context, later Poskim developed a clear and precise definition of death, and there is no disagreement.
Jewish Review: And this definition is ...?
Rabbi Bleich: The halakhic definition of death is the cessation of respiratory and cardiac activity. This was later clarified as meaning "irreversible cessation of all cardiac and respiratory activity," to which some later authorities add the notion that in addition to cessation of cardiac and respiratory activity there must also be cessation of all movement, and there is source for that in the comments of Rashi in his discussion of the passage in Yoma. So you have three criteria, and the third may appear somewhat redundant: cessation of both cardiac and respiratory activity plus the absence of any movement whatsoever.
Jewish Review: Could you, in contrast to that, describe the neurological criteria for death which have been introduced in recent years? How widely have they been accepted in the secular world, and has there been some acceptance of them in the Torah community?
Rabbi Bleich: Neurological death is perfectly compatible with continued cardiac activity and even, at times, with the continued presence of movement in the extremities. Neurological criteria as presently understood and when correctly applied are also compatible with spontaneous respiration. These criteria have been accepted either by statute or judicial decree in at least 38 or 39 states at present, and there is very little question that the movement towards the acceptance of neurological criteria of death in the secular society is irreversible.
Jewish Review: How has the interpretation of the traditional sources figured into the current debate about neurological criteria for death amongst Torah scholars? Why have a number of rabbanim (particularly the Israeli rabbinate) apparently accepted neurological criteria?
Rabbi Bleich: There is much confusion in this area. The Israeli rabbinate's decision of several years ago with regard to liver transplants was based upon an acceptance of respiratory criteria alone and, if we look at their decision carefully, it had absolutely nothing to do with neurological criteria. Frankly, I do not think that they fully understood what they were saying. If you follow their line of reasoning to its logical conclusion, the result is that respiratory criteria are accepted as the sole criteria. That leads to a position which is much more liberal than anything that the medical profession has advocated or is likely to advocate. It leads to a situation in which a person who has suffered irreversible cessation of respiratory activity is to be pronounced dead regardless of whether there is brain function or not. Brain function is totally irrelevant to their definition of death. I should also point out there are medical conditions such as polio in which a diagnosis of irreversible cessation of spontaneous respiration can be made without any fear of error, but in which the individual is conscious and very much alive. It is true that in all cases of neurological death, if that term is understood as it is conventionally understood, there is also cessation of respiratory activity. But use of neurological criteria is much too restrictive if what you are trying to do is to formulate a respiratory criterion of death; and incidentally, the respiratory definition of death has been rejected as the exclusive criterion of death by the early poskim, the rishonim and acharonim, and by the latter day poskim.
Jewish Review: So the Chief Rabbinate's decision, in spite of claims to the contrary, does not in your view make use of neurological criteria of death, and is vulnerable, as you have indicated, to the reductio ad absurdum argument that polio patients and various other people who cannot breathe unaided by a machine but who are otherwise conscious, would then have to be declared dead by virtue of these criteria?
Rabbi Bleich: Absolutely.
Jewish Review: Why is it that the Israeli Rabbinate reads the traditional sources in such a way as to limit the criterion of death to cessation of respiratory activity alone?
Rabbi Bleich: A literal reading of the discussion in Yoma, ignoring the comments of Rashi and of later rabbinic decisors, can very well lead to such a conclusion. There is at least one person who has argued that the discussion in the Palestinian Talmud incorporates only a respiratory definition of death. Let me, however, put it this way: if you read the discussion in Yoma without looking at the commentaries you can easily reach that conclusion. But, you don't read without looking at commentaries.
The Gemara, Yoma 85a, discusses the case of an individual who has been trapped under the debris of a fallen building and is discovered on the Sabbath. Since we must violate the Sabbath even on the chance that life might be preserved, the rubble must be cleared away even if it is uncertain or doubtful that the person has survived. Now, once it is determined with certainty that he has expired, no further violation of the Sabbath is allowed. Two opinions are recorded in the Gemara as to how much of the body must be uncovered in order to show conclusively that the individual has died. One opinion is that the nose must be uncovered and the person pronounced dead if there are no signs of respiration at the nostrils. A second opinion states that death may be determined by examining the chest for the absence of a heartbeat. Following this latter opinion there is a statement by Rav Papa to the effect that there is no disagreement in situations in which the body is uncovered "from the top down" (in such cases the absence of respiration is regarded by all as conclusive); there is disagreement only in cases in which the accident victim is uncovered from the bottom up, i.e., when the heart has been uncovered first.
Now, as I have said, one can read this Gemara as a dispute as to whether cessation of respiration is to be regarded as the only criterion of death, or whether cessation of cardiac activity is also to be regarded as a sufficient indication that death has occurred. Since both the Rambam and the Shulkhan Arukh rule that the nostrils must indeed be examined, one could come to the logical, but erroneous, conclusion that cessation of respiration is the one necessary and sufficient criterion of death.
However, when we read the comments of Rashi on this Gemara, we find that he makes two points which vitiate this conclusion. The first is that the whole discussion in the Gemara concerning examining the nostrils and the heart is limited to situations in which the victim is "comparable to a corpse and does not move his limbs" (in Hebrew "ever"). Since the term Rashi uses, viz. ever, connotes both limbs as well as any organ of the body, it is clear that for Rashi any movement of any bodily organ (and this includes cardiac activity, i.e. "movement" of the heart) is an absolute criterion of life even if an individual is incapable of spontaneous respiration. Rashi's second comment is even more revealing. The dispute in the Gemara, he tells us, is not so much about the criteria for death, but rather about the diagnostic reliability of an external examination of the heart. We insist upon an examination of the nostrils, not because heartbeat is irrelevant to life, but because our ability to detect a faint heartbeat is unreliable. Certainly, when a heartbeat is present we cannot rely on a lack of respiration as a criterion for death. Indeed, Rashi understood that according to both opinions recorded in the Gemara cardiac activity is the primary indicator of life. It's just that our ability to detect cardiac function may be unreliable.
Jewish Review: It has frequently been pointed out that the Hebrew word for soul, neshamah, is etymologically related to the word for breathing, neshimah. Doesn't this suggest that breath is somehow equivalent to the soul itself?
Rabbi Bleich: Yes it does, and the question then is whether breath is to be identified with the soul or merely "symptomatic" of its presence. The point made by Rashi, and all others who have followed in his footsteps, is that our criteria for death do not define life or death, but rather simply serve as signs and indicators of the presence of life or death. Now, if you are dealing with a situation in which the patient is not hooked up to highly sophisticated technological apparatus, then absence of breath means that the patient either is dead or will die within a matter of minutes. Hence, in antiquity respiration was the primary criterion.
Jewish Review: But breath is not the soul itself, just a symptom of its presence?
Rabbi Bleich: No one can see the soul leaving the body. Therefore, you have to look for other indications; you need symptoms which you establish as criteria that will tell you that the soul has left the body. The best of these under most circumstances is absence of respiration. However, if the person is not breathing, but there are other vital functions that persist the patient is, from the vantage point of Jewish law, very much alive, and if you extrapolate to metaphysical language, the conclusion must be that the soul has not left the body.
Jewish Review: You have said that "brain death" is itself a misleading expression which is designed to lull the public into a state of moral complacency. Could you explain what you mean by that?
Rabbi Bleich: If you read the early literature on neurological criteria, particularly the Harvard report, you will find that the people who formulated neurological criteria understood very well what they were doing. They were, in their own minds, establishing criteria for withdrawal of treatment. They did not pretend that they were capable of redefining death. "Death" is very much a convention, insofar as the medical profession is concerned and insofar as any secular legal system is concerned. If you make a determination that for any reason or purpose you want to withhold treatment from a patient, then you have to find a way of "marketing" that determination. It then becomes very tempting to pretend that you have redefined death in order to gain acceptance of that platform. The chairman of the Harvard Ad Hoc Committee stated clearly that the committee was not defining death, but that it was defining "irreversible coma" and that is exactly what they did. They were absolutely correct. They did succeed in defining irreversible coma.
Now the question is how do you treat a patient who is in a state of irreversible coma. Do you treat him in a manner that is entirely similar to the way in which you treat a corpse. If so, fine. That is then a recognition that you are going to make a value judgment and treat a person in a state of irreversible coma as if he were dead. It's a short hop, skip and jump to say that you are not treating him as if he is dead, but that you are pronouncing him dead, and you certainly gain public acceptance by saying that he is dead rather than by saying it is as if he were dead; that is exactly what has happened over the course of the last fifteen years or so.
Jewish Review: Rabbi Moshe Feinstein writes in one of his responsum on the question of brain death:
"There is now a test used by leading physicians whereby they inject a liquid into the arteries to determine if the brain has lost its connection to the rest of the body and, accordingly, does not belong to the rest of the body, the brain having already decomposed, such a state being the equivalent of death by decapitation." [Tr. by Rabbi B. Herring]
A number of authorities have taken this statement of Reb Moshe's as an indication that he accepts neurological criteria of death; and indeed the Chief Rabbinate of Israel appears to have relied on Reb Moshe's responsum in their support of neurological criteria under certain circumstances. Do you believe that Rabbi Feinstein did endorse a version of "brain death," and why, in your view, isn't brain death analogous to "decapitation?" Perhaps you could comment on the passage in the Gemara (Oholot 1:6) which states that an animal whose head has been severed is unclean carrion (i.e. dead).
Rabbi Bleich: Let me answer your questions one at a time. First, you are correct that the passage in Oholot suggests a criterion for death, decapitation, which is in addition to the three others (cessation of respiration, cardiac activity and movement) which we have been speaking of. The Mishnah in question, Oholot 1:6, states that cattle and wild beasts are unclean, hence dead, "if their heads have been severed" even if they continue to move convulsively, etc. Now one might indeed argue that if the brain were totally liquified, that this liquification would be tantamount to physiological decapitation. However, for halakhic purposes, we must point out that the mere dysfunction of an organ is not the equivalent of its destruction or excision. For example, while a male whose testes have been removed is forbidden to cohabit with a Jewess of legitimate birth, no such restriction is placed on a male whose testes have simply ceased to function, and while an animal whose liver has been removed is trefah, an animal whose liver is simply dysfunctional may still be kosher. Now as I have said, the halakha does recognize that tissues or organs which are liquified, or so decayed that they "crumble in the finger," can be regarded as excised, but the brain of an individual who is pronounced dead on the basis of neurological criteria does not even approximate such a condition. I should point out to you that I'm a liberal on this issue, because it seems to me that if the heart stops beating and there is no breathing, the patieent is dead even if brain waves are still present. Rabbi Aaron Soloveitchik maintains that such a patient is alive. I'm perfectly happy not to resolve that disagreement because in the universe that you and I inhabit there is no such patient. Such a patient only exists in the world of fiction.
Insofar as Reb Moshe's opinion is concerned, it is absolutely clear from his earlier responsum on this subject that he explicitly and unequivocally rejected brain death as being incompatible with the halakha. The Chief Israeli Rabbinate reports that Reb Moshe changed his position in later years. This is contradicted both by the fact that Reb Moshe permitted publication of his opinion opposing heart transplantation (which, as we have seen, entails the use of brain death criteria), on the grounds that it involves murder, only eight months prior to his death, and by the testimony of his own son, R. David Feinstein, to the effect that at no time did his father retract his earlier opposition to acceptance of brain death criteria. The responsum from which you quote (and I am not sure of your translation) has certainly created some confusion, but if this responsum were to constitute a change in his position, it would be in direct contradiction to a responsum he wrote two years later (in 5838) in which he reiterates that the removal of a heart from a donor pronounced dead on the basis of neurological criteria is an act of homicide. A careful reading of the responsa from which you quote will show that Reb Moshe did not rely on neurological criteria and that he only required certain neurological or blood flow tests in order to determine that cessation of respiration (which is one of the criteria he did accept) was indeed irreversible.
What Reb Moshe says is, that having been informed that there is a way of determining that brain function still exists, and hence that cessation of respiration may be irreversible, such tests should be administered in order to determine that the cessation of other physiological activities is not irreversible. That's all he says in that responsum.
Jewish Review: Why do you suppose that there seems to be a division on this issue in the Orthodox community? You feel that there has been a creative misreading of the sources on the part of the Israeli Rabbinate. Why do you suppose that we have this on this issue?
Rabbi Bleich: I can't speak for the Israeli Rabbinate. Confusion is confusion.
Jewish Review: Is your position one that you are prepared to defend on rational as well as halakhic grounds, or are the criteria for death, khukim, laws that are ultimately beyond our comprehension? If there was no halakha on this issue would you feel as strongly about it?
Rabbi Bleich: Certainly not. But by the same token it is not irrational by any means. I prefer to recognize the issue for what it is, which is not one of defining death but rather one of withholding treatment, i.e., euthanasia, either active or passive. One does not have to accept halakha in order to oppose euthanasia. One can oppose euthanasia on extra‑halakhic grounds either because of "slippery slope" arguments [once we permit it in one case, it becomes hard to prevent it in so many others] or because of the fact that one has an innate feeling that man ought not to tamper with life processes and by virtue of recognition that society cannot tolerate situations in which human lives are allowed to be extinguished for "social reasons."
Jewish Review: What of an instance in which an individual had written a "living will" which stated that in the event that he was in such an extreme condition that he would like to perform an act of chesed and give his organs to a needy or worthy person?
Rabbi Bleich: A living will which commands the withholding of treatment when it is not sanctioned by halakha is not one that we can either endorse or accept, motives notwithstanding. Let's not confuse this issue because "living wills" go far beyond neurological criteria of death. The State is not interested in, and does not need, a "living will" to justify termination of life support systems when neurological criteria have been met. You need a living will to prevent a person from being put on a respirator while the brain is still very much alive. For halakha, such a living will would certainly not be valid.
Jewish Review: A person is not permitted to sacrifice his own life in order to save the life of another?
Rabbi Bleich: That is correct.
Jewish Review: Are you saying that there are no limits then at all to what a physician should do in order to save a person who is still alive according to Jewish law?
Rabbi Bleich: I didn't say that. I said something very close to that, but there are certain exceptions. A physician need not use hazardous procedures. He doesn't have to place the patient in a position where the little life that is still available to him is being gambled for the sake of prolonging life beyond the time that the patient would live had the physician done nothing. The physician may not be obligated to use experimental procedures. The physician may not be obligated to treat the patient when the patient is already a gosses, which is a very technical concept in halakha and refers generally to someone who is in death's throes.
Jewish Review: Can a Jew accept an organ transplant from a body that has been declared dead by neurological criteria?
Rabbi Bleich: I'll rephrase the question. Can a Jew accept an organ that has been removed from a human being whom Jewish law regards as having been alive when the procedure was instituted? The answer is ?yes.? The procedure is illegitimate; it shouldn't have been done. But once the organ has been removed, there is no exclusionary principle that says that benefit cannot be derived from the organ. Once the organ has been removed, you don't have to throw it in the trash basket.
Jewish Review: Can a Jewish family go on a search for a liver or a heart for an ailing loved one?
Rabbi Bleich: A Jewish family cannot tell a physician, Jewish or non‑Jewish, that it is permissible for the physician to remove the organ unless and until the patient has been pronounced dead in accordance with halakhic criteria. However, when the physician announces that he is going to remove the organ regardless of whether or not this particular patient accepts it, there is nothing to prevent the Jewish patient from accepting that organ. We're dealing with a situation in which the person who is going to commit this act is going to commit it in any event. There are long waiting lists for organs and transplant surgeons remove every available organ. Under these circumstances the Jew's refusal to accept the organ is not going to prevent an act of homicide.
Jewish Review: So he might even be under an obligation to accept it (and thereby save his own life) if it is available?
Rabbi Bleich: If it is available, yes.
Jewish Review: Philosophers sometimes speculate about the nature of human personality or what we might regard as the essence of an individual, his nefesh or his soul. One argument they use to show that the "person" is most closely associated with the brain and consciousness, thoughts and ideas, is the hypothetical situation of one person's brain in another person's body. They argue that if Shimon's brain, for example, were in Reuven's body, we would relate to and regard such an individual as Shimon because he would have Shimon's consciousness, thoughts and memories. Therefore, the argument goes, the essence or "soul" of an individual resides in the brain or in his mental processes, not in his heart or his breath. Could you comment on the validity of this as a philosophical argument?
Rabbi Bleich: Let me answer the question with a question. Tell me, if a dybbuk (evil spirit) enters Reuven, is Reuven no longer Reuven? Is he now the dybbuk or is he still Reuven. The answer, as far as halakha is concerned, is that he is still Reuven, but that Reuven now harbors a dybbuk inside his body. In formulating your question you're telling me something very similar: that there is a dybbuk called "Shimon" who entered Reuven.
Jewish Review: Is the so‑called neurologically dead individual capable of performing any of the actions for which G‑d placed man on earth. Does he have a soul in a meaningful sense, in the sense of being able to choose right or wrong, to perform mitzvahs, etc.?? Don't we have an entity which no longer has a function in terms of G‑d's plan?
Rabbi Bleich: That may be the case. I'm not aware that comatose patients can exercise free will. But so what? Remember, that a person who is mentally incompetent or insane also cannot perform mitzvahs but he is still a human being.
Jewish Review: Let me ask you a practical question. What is the status of third‑party medical insurance payments for Jews in a secular society where the secular government and the treating physicians recognize neurological criteria and the Orthodox Jews do not?
Rabbi Bleich: Should insurance companies pay for the extra 3 to 12 days that a person will stay in the hospital until he is declared (halakhically) dead? There may well be no reason? why the insurance companies should automatically pay for it, but there is every reason in the world why the state authorities should demand that the insurance companies offer a policy that will cover this if you so desire. The state mandates that, when offering insurance to the public, insurance companies do not exclude particular individuals because they are susceptible to certain medical risks. The insurance companies may have a right to charge an additional premium for these risks, but they cannot exclude the individual altogether. If you work out the costs you will probably discover that, administratively, it would cost the insurance companies more to collect the additional premium from Orthodox Jews than the income they will derive from additional premiums reflecting only additional medical costs. It probably doesn't pay. That's the simple answer. The other answer is that the State does not allow insurance companies to discriminate in ways that are perfectly valid and cogent from a statistical perspective, but which discriminate, for example, between men and women. Should the State treat matters of conscience in the same way? I think that a perfectly valid argument could be made in support of the position that you should no more exclude or charge an additional premium to the Orthodox Jew than you do to the female, who is likely to incur far greater medical expenses in the course of a lifetime. I'm not interested in pressing that point because the difference is a matter of pennies.
Jewish Review: Are you saying that following neurological "death," it is always only a matter of three to twelve days before the person is declared dead by traditional criteria? Are there not instances in which a person might be declared brain dead and then remain halakhically alive on a respirator for an indefinite period of time?
Rabbi Bleich: No! No one who has met neurological criteria has ever been maintained on a respirator for more than 67 days, and that was a woman who gave birth to a viable infant during that period, and frankly I doubt that she was neurologically dead in the first place. We must not be confused because of cases such as Karen Ann Quinlan's. Karen Ann Quinlan was not neurologically dead. She was alive by everyone's definition of death. She was in a permanent vegetative state and her case involved a euthanasia issue pure and simple.
Jewish Review: What of a situation in which an individual commits a criminal act which is murder by secular criteria but only attempted murder by halakhic criteria?
Rabbi Bleich: Yes, that was the Eulow case in New York. The victim was assaulted in a barroom brawl. The victim was pronounced dead on the basis of neurological criteria and the physicians pulled the plug in order to remove an organ for transplant purposes. The perpetrator's defense was that he did not commit the act of homicide; rather it was the doctor who killed the victim. Of course, we're dealing here with a complicated issue. The fact that from the vantage point of halakha the doctor had no right to pull the plug doesn't mean that the assailant ought to go scott free. He's certainly guilty of something. How the secular courts choose to treat that issue and how they choose to punish him doesn't really concern me at all. If the non‑Jew will come to ask the technical question as to who is guilty according to the Sheva Mitzvot B'nai Noach, (the Seven Noahide Commandments that apply to non‑Jews) we'll deal with that when it's asked.
Jewish Review: However, if the law were to recognize the civil rights of Orthodox Jews to be regarded as ?alive? even when their doctors refer to them as (brain) dead, wouldn't that have a concomitant effect on the criminal law, such that murder would have a different criterion for Jews as opposed to non‑Jews?
Rabbi Bleich: Absolutely not. If you recognize an individual's rights of conscience for purposes of continuing his medical treatment this does not bind the district attorney or judge to accept the same position in a criminal proceeding.
Jewish Review: Aren't there going to be many Orthodox Jews who will follow the Chief Rabbinate on this issue? After all, as you point out, there are some powerful incentives not to be so strict on this question.
Rabbi Bleich: The Chief Rabbinate believed that they were simply endorsing Rabbi Feinstein's position but, in point of fact, Rabbi Feinstein never sanctioned brain death. Moreover, if people realized that halakhic death invariably follows "brain death" by 3 to 12 days, they probably would not be so anxious to have their loved one's declared dead by neurological criteria.
Jewish Review: But how, in your view, can we morally solve the problem of organ transplants in the Jewish and wider community?
Rabbi Bleich: By advocating development of artificial organs. I think we ought to promote and support the research necessary for the perfection of artificial organs. Perfection of artificial organs is certainly in the realm of medical possibility. Artificial organs are not in the realm of science fiction. Jarvis knows what he is doing. He's had technical problems with his artificial heart but they can be solved. If we had put the same money into developing an artificial heart that we did in putting a man on the moon or in sending missions to Mars, we would have developed the artificial heart before the moon landing, and that's the direction in which we ought to now go.