time to read and comment upon my Tendler, as well as a committee of the votes are less than fifty percent of the Counterpoint article. He is a forceful, energetic Israeli Chief Rabbinate, do interpret total membership since approximately advocate for the encouragement of Rav Moshe’s pesakim as supporting half of the membership claims to have organ donation within the Orthodox BSD, but certainly none of us can dis- no informed opinion on the matter.) community, and HODS’ web site is a miss out of hand the contrary interpre- III. Views of other posekim: Brain-death treasure-trove of valuable information tation of Rav Auerbach, Rav Elyashiv criteria have been rejected by a whole on both the medical and halachic and Rav Soloveichik. For further eluci- spate of posekim including Rav Auerbach, On Organ Donation aspects of this issue. Indeed, I cited dation, I refer the reader to my earlier Rav Elyashiv, Rav Waldenberg, Rav this source several times in my article. article, “The Brain Death Controversy Yitzchok Weiss, Rav Nissan Karelitz, Rav I realize, as well, that he and his orga- in Jewish Law,” Jewish Action (spring Yitzchok Kolitz, Rav Shmuel Wozner, Rav nization are motivated solely out of 1992): 61 (available at the HODS web Ahron Soloveichik, Rav Hershel Schachter I commend Rabbi Breitowitz’s and documents from these rabbis may sides of the BSD debate, and therefore concern for those persons who desper- site) and especially the addendum in and Rabbi J. David Bleich. Some of these attempt to expound upon the complicat- be found at the web site of the we offer a unique organ donor card ately need organs to stay alive. the summer 1992 issue (p. 78). See posekim reject BSD in principle; others are ed issue of organ donation and halachah Halachic Organ Donor Society that allows members to indicate their Nevertheless, his letter may create the also the voluminous discussions in Dr. concerned with the accuracy of the diag- (“What Does Halachah Say About Organ (HODS) (www.hods.org). desire to donate organs after BSD or misleading impression that acceptance Abraham’s Nishmat Avraham YD 339:1 nostic test; still others acknowledge that Donation,” fall 2003). I would, however, Regarding the Rabbinical Council of alternatively after cessation of heartbeat. of BSD is well-nigh universal, both (2), pp. 241-244 and in J. David while BSD may be death, it is at best a like to clarify a number of points. America (RCA), Rabbi Breitowitz Rabbi Breitowitz mentions a num- halachically and medically. Neither Bleich’s “Of Cerebral, Respiratory and safek (doubtful situation), and as such, one Rabbi Breitowitz casts doubt on the claims that even though the organiza- ber of reasons why Jews would proposition is true. Cardiac Death,” Contemporary would be prohibited to remove organs as acceptance by the medical establish- tion has officially accepted BSD as halachically be able to donate organs I. Rav Moshe’s position: Rav Moshe Halakhic Problems IV (New Jersey, it is possibly murder. Again, I refer the ment of the criteria of brain-stem halachic death, “many rabbanim who to non-Jews. I would like to suggest addressed issues of brain death in sever- 1995), 343-350. Again, I am well reader to the following: Nishmat Avraham death (BSD) by stating that, “the are members of the RCA, however, do three more. In many instances where al teshuvot: YD 2:174 (5728); YD 3:132 aware of the controversy surrounding YD 339:2, pp. 241-244; Nishmat brain-stem death standard itself has not follow this position.” HODS the Talmud discriminates between the (5736); Choshen Mishpat 2:72 (5738). Rav Moshe’s position. I take no sides Avraham V, pp. 92-98 and J. David recently been questioned by some neu- recently sponsored a random sampling lives of Jews and non-Jews, the non- While a number of statements seem to in this matter other than to note that it Bleich, Time of Death in Jewish Law (New rologists.” Tens of thousands of neu- survey by an independent researcher of Jews are specifically idol worshippers. I indicate support for a BSD definition, is indeed a controversy. York, 1991), 144-145. It is true that Rav rologists throughout the Western the RCA membership. The results show would like to suggest the possibility Rav Shlomo Zalman Auerbach z”l, Rav II. The RCA position: The RCA has Auerbach’s final pronouncement comes world understand BSD to mean death. that approximately half of the RCA that since Muslims are not idol wor- Ahron Soloveichik z”l and, yibadel endorsed BSD as halachically suffi- much closer to a standard that would Rabbi Breitowitz’s comment, and his rabbis claim not to have an informed shipers, and according to some lechaim, Rav Yosef Sholom Elyashiv cient following the pesakim of Rabbi legitimate organ removal but, as noted, it note that lists one paper written by opinion about BSD, and of those that posekim neither are Christians, the dis- interpreted Rav Moshe as permitting Tendler and the Israeli Chief would require that the BSD donor be off two physicians, implies dissent large do have an opinion, the majority of tinctions made in Talmudic times the utilization of the brain-death crite- Rabbinate. As chairman of the RCA’s of the respirator for five to six minutes enough to note. It is not. them accept BSD as halachic death. would not be applicable today. ria only after cessation of heartbeat. It Biomedical Ethics Committee, Rabbi before the heart could be removed. Concerning Rav Moshe Feinstein’s Rabbi Breitowitz, when discussing Second, donating organs only to must be emphasized that these gedolim Tendler spearheaded the preparation of IV. Medical Definitions: Mr. Berman position confirming BSD as halachic non-heart beating donation, refers only Jews—to the exclusion of non-Jews— were not purporting to disagree with a health-care proxy form that would is absolutely correct that a large major- death, I refer readers to Iggerot Moshe to comatose patients whose hearts stop would most likely cause eivah (enmity) Rav Moshe; rather, in their view, Rav authorize the removal of vital organs ity of the medical profession regards (YD 3:132) and Rav Moshe’s letter to as a result of being removed from a res- between Jews and non-Jews. Out of Moshe himself did not necessarily from a respirator-dependent, brain- brain death as equivalent to death for Dr. E. Bundi, the grandson of Rabbi pirator. He omits other kinds of non- fear of eivah, one is allowed to violate endorse BSD as a stand-alone criterion. dead patient for transplantation pur- all purposes—whether it be termina- Yosef Breuer. Rav Moshe’s position was heart beating donation such as those Biblical commandments to save the life It should be noted that in YD 3:132— poses. Although the form was tion of life-support or removal of also confirmed by Rabbi Dovid that come from patients who were of a non-Jew, and this applies equally the very teshuvah that Mr. Berman cites approved by the RCA’s central admin- organs. It is also true that for almost Feinstein, Rabbi Shabtai Rappoport, originally brain-stem dead—whose ces- in America (Iggerot Moshe, OC 4:79). as support—Rav Moshe quotes with istration, its provisions on brain death two decades it has been the dominant Dr. Ira Greifer and Rabbi Dr. Moshe sation of breathing is already deter- On a practical level, even if all of approval the ruling of Chatam Sofer, were opposed by a majority of the American legal definition of death as Tendler. mined to be irreversible—and who one’s eight life-saving organs were to YD 338, who explicitly enumerates lack RCA’s own Va’ad Halachah (Rabbis well. However, two points need to be Furthermore, in 1986 the Chief then undergo cardiac arrest. He also be donated to non-Jews, this would of pulse (heartbeat) and lack of respira- Rivkin, Schachter, Wagner and considered: First, it is beyond the Rabbinate of Israel appointed a com- omits uncontrolled-donation. This sit- directly move eight Jews closer to the tion as necessary prerequisites for the Willig). It is obvious that at least some purview of science to determine when mittee of rabbinic scholars and neurol- uation arises when CPR is being per- top of the list of 80,000 people who determination of death. In CM 2:72, a eminent posekim within the RCA do a person is dead. Medicine can ogists to investigate the halachic status formed on a patient for a prolonged need organ transplants, thus increasing teshuvah written two years later, Rav not agree with the organization’s posi- describe with greater or lesser accuracy of BSD. Not only did the scholars period of time and the physicians final- their chances of receiving an organ Moshe reiterated a point he made some tion. In light of this disagreement at the level of functionality an organism unanimously conclude that BSD was ly declare him dead. Compressions are and having their lives saved. years earlier that removal of a heart the highest level of the RCA’s posekim, may possess, but whether that level is halachic death, but they were also of continued, however, until the family constitutes murder of the donor. Since the positions of the rank and file equivalent to death or life is a moral the unanimous opinion that Rav Moshe can be contacted to approve or deny Robby Berman under American law hearts are not frankly assume less importance. The and religious question, not a medical himself accepted BSD as halachic organ donation. While this type of Founder and Director removed until the donor has been diag- talmidim of X tend to follow the rul- one. Thus, while the findings of neu- death. The committee included rab- donation is rare, it does happen and, Halachic Organ Donor Society nosed as brain dead, this too suggests ings and opinions of X, the talmidim rologists concerning level of activity binic luminaries such as Rabbis therefore, it allows even those Jews New York, New York that BSD is not equivalent to halachic of Y will follow Y. With all due are highly instructive, their labeling of Zalman Nechemia Goldberg, who reject the BSD definition of death death. respect, in the absence of a Sanhedrin, a certain level as death is not. Mordechai Eliyahu, Avraham Shapiro, to become organ donors. Rabbi Breitowitz responds Mr. Berman is correct that a number grave halachic matters cannot be Second, the brain-death concept orig- Avraham Shlush, Shaul Yisraeli and HODS recognizes that there are sig- of eminent posekim, including Rav decided by a head count, even a rab- inated in a 1968 report authored by a Yisrael Lau. All the testimonies, letters nificant halachic authorities on both I appreciate Mr. Berman taking the Moshe’s son-in-law, Rabbi Dr. Moshe binic one. (In any case, the approving special committee of Harvard Spring 5764/2004 JEWISH ACTION JEWISH ACTION Spring 5764/2004 Medical School. The report explicitly many other studies that dissent from have been excluded from recipient lists in noted that it was not actually defining the conventional wisdom. It should also parts of Europe as a result of their unwill- death rather irreversible coma, the point be noted that what is widely accepted ingness to be donors. As such, eivah may, after which further medical treatment in the United States is not necessarily in fact, be a possible justification. It is should be deemed futile. The eventual regarded as valid in other countries. questionable, however, whether the con- adoption of the Harvard criteria as a Finally, there are a number of facts cept of eivah is limited to the specific basis for a determination of death, as concerning patients with a clinical diag- contexts in which Chazal applied it or was done in laws like the Uniform nosis of brain death that need to be whether it is a general rule that can be Determination of Death Act, was a later noted: Such patients 1. Have brought applied across the board. Chazal used development and was, to some degree, babies to term; 2. Have occasionally eivah as a dispensation for some forms of motivated by a practical desire to facili- regained consciousness; 3. Are warm to chillul Shabbat—see Avodah Zarah 26a tate organ transplantation. Few would the touch, and maintain body tempera- and commentaries—but there is no support removal of vital organs from the ture; 4. Have been able to occasionally explicit reference to its being employed as dying; most would support such survive in at least a comatose state with- a heter for nivul hamet. removal from the dead. By a magical out suffering cardiac arrest for weeks, Mr. Berman’s third argument is that process of redefinition, persons who months and, in some cases, even years. the donation of organs to non-Jews were formerly classified as dying are Let me reiterate that I am not at all indirectly helps Jews in need of organs now defined as dead, thereby eliminat- arguing against a brain-death standard, by moving them higher up on the ing moral quandaries. Needless to say, but simply trying to show that the issue is recipient list. This is an intriguing such a result-oriented, ethical slight-of- less clear-cut than Mr. Berman paints it. argument that deserves careful consid- hand is entitled to little deference in any V. Donating organs to non-Jews: In eration from posekim. I wonder, how- objective halachic determination. note 24 of my article, I provided four ever, if such indirect assistance satisfies In any event, even within the medical possible bases to permit blanket dona- the Noda B’Yehudah’s ruling that nivul profession the consensus is not tion of cadaveric organs even though it hamet is permitted only if a choleh absolute. Mr. Berman notes correctly is probable that the recipient will be a Yisrael will directly benefit. Does mov- that my note lists only “one paper writ- non-Jew. Mr. Berman cites three rea- ing up on a list qualify as a direct life- ten by two physicians [which] implies sons. First, he suggests that since saving benefit? I believe it may, but the dissent large enough to note [which] it Muslims and, according to some, even matter needs further study. is not.” Lack of space necessitated omis- Christians, are not idol worshippers, VI. Non-heart beating donors (NHBD): sion of other sources. A partial list the distinction between Jews and non- Finally, Mr. Berman notes that the includes Capron, “Brain Death: Well Jews would not apply. I believe this halachic problems I identified in Settled Yet Still Unresolved,” New assertion is incorrect. When the Torah NHBDs do not apply to all NHBDs. England Journal of Medicine 344 states rules pertaining to “idolaters,” I certainly agree. As long as the heart (2001): 1244; Wijdicks, “The these rules may often not apply to was not stopped through improper Diagnosis of Brain Death,” New monotheistic Gentiles. See, for exam- and deliberate cessation of life-sup- England Journal of Medicine 344 ple, Rambam, Hilchot Avodat port, and the lack of heartbeat is irre- (2001): 1715; Greenberg, “As Good As Kochavim 10:6 (residence in the Land versible, the donor is a cadaver, and Dead: Is There Really Such a Thing as of Israel). But with respect to violating removal of the organ would certainly Brain Death?” The New Yorker (13 prohibitions in order to save a life, the not constitute retzichah (murder). August 2002): 360. An earlier critique Torah limits the dispensation to the These cases, however, are likely to be appears in Halevy and Brody, “Brain saving of Jewish lives. See Yoma 83a. rare; any lapse of time that will be Death: Reconsidering Definitions, Even if Muslims or Christians are not long enough to result in irreversible Criteria and Tests,” Annals of Internal characterized as pagans, they certainly cessation of heartbeat will also be long Medicine 119 (15 September 1993): are not Jewish and hence, not covered enough to render the organ unsuitable 520 and in Shewmon, “Brainstem by the vechai bahem rule. for transplantation. Death, Brain Death and Death: A Mr. Berman’s second rationale— My remarks were directed to a specific Critical Reevaluation of the Purported eivah—was mentioned in note 24 of my protocol that was developed at the Equivalence,” Issues in Law and article, though I did not employ the University of Pittsburgh Medical Center. Medicine 14 (fall 1998): 125. This last term. The citation of Iggerot Moshe, OC All of us owe HODS a debt of grati- article is especially interesting because 4: 79 is directly on point and appeared as tude for raising public awareness of Dr. Shewmon is a neurologist in a a supporting reference in an earlier draft these important and complex issues, major transplant center who was a of my piece, but was dropped in the edi- but such awareness can in no way dis- strong proponent of the brain-death torial process to conserve space. The pense with the need to consult with a standard but eventually came to reject eivah argument is not totally compelling. qualified and knowledgeable posek (as it. Dr. Shewmon’s article also cites There is indeed some evidence that Jews the HODS web site itself notes.) JA