The Jewish View On Brain Death, Organ Donation

The Jewish Week reports Jan. 11, 2011:

Faced with two well-founded positions of Jewish law on when death occurs for the purpose of organ donations, the country’s major Modern Orthodox rabbinic group has similarly ruled that both brain-stem death and the cessation of heartbeat are valid opinions.

In both cases, the two movements left it to their fellow clergy members to determine for themselves which opinion to follow.

Until a few months ago, Modern Orthodox Jews had for years accepted brain death as the criteria for death. But a paper commissioned by the Rabbinical Council of America and circulated internally late last year raised questions about that definition. Without taking a position, it also cited experts of Jewish law who said the definition should be the cessation of heartbeat and breathing.

In circulating the paper, offering up both points of view, the RCA said it had decided not to take a position on the issue, backing away from its previous endorsement of brain death. But because of “strong reactions from many quarters,” the RCA last week took what it described as an “unusual step” of issuing a clarification to reiterate that it was “taking no official position as an organization on the issue of whether or not brain stem death meets the halachic [Jewish law] criteria of death.”

“It is true that many halachic authorities of our day, including Rav Hershel Schachter, Rav Mordechai Willig, Rav J. David Bleich and others maintain that brain stem death does not satisfy the halachic criteria for the determination of death,” the new statement said. “It is also true, however, that many other halachic authorities, including Rav Gedalia Schwartz, Rav Moshe Tendler, and the Chief Rabbinate of Israel maintain that brain stem death does qualify for the determination of death in Jewish law.”

Rabbi Tendler, a biology professor and Jewish medical ethics expert at Yeshiva University in addition to being a rosh yeshiva there, criticized the RCA for its report, which he said was intentionally biased against the brain-death position.

An Orthodox rabbi tells me:

Re: Jewish Week quote on your blog: “Until a few months ago, Modern
Orthodox Jews had for years accepted brain death as the criteria for
death.”

This is so blatantly false. It ignores the fact that just about every
year there has been at least one medical ethics conference at YU or
elsewhere with a discussion about the brain death debate. Simple
question: If there was such unanimity, why do HODS organ donor cards
offer two options for when death is defined and organs may be taken?

A friend tells me: Have you seen the R. Moshe David Tendler video on FM? Amazing!

He rakes the RCA over the coals on the brain death psak, especially the notion that jews cant donate organs or take them from Jews but they can take them from goyim. He calls it a blood libel, correctly.

Rabbi Moshe Tendler has a reputation for speaking his mind. But this is a great show of his stuff by any standard. I was afraid he would be arrogant or crotchety but he was dead on about the core issues.

A rabbi tells me: “I have not read the RCA’s position paper, but I have read hundreds of medical textbooks and journals. I have been present many times when doctors were doing a brain stem death protocol and it is clear that the person is dead. When the gemara (last perek in Yoma) says that both heart and lung function are how we know if someone is alive or dead, it is talking about examining a person under a collapsed building or wall, this is spontaneous breathing and heart function. To extent that to the case where only mechanically is the body kept alive organically seems to be quite a stretch. I think Rabbi Moshe Tendler‘s position is correct. This has also been the position of the rabbis Shlomo Goren, Ovadia Yosef, Mordechai Eliyahu, Avraham Shapira. Many times when Rav Shlomo Zalman Auerbach was confronted with this question, (he was one of those that rejected brain stem death) he would always send the question to Rav Avraham Shapira (in order to save a life).”

I understand that the brain stem is the last part of the brain to cease functioning. This continues after all cognitive abilities are gone.

Heart, liver and lung transplants are unique. Those organs have to be harvested while the heart is still pumping blood. If you wait three seconds after the heart has stopped pumping blood, they will deteriorate so they will not work in another body.

It was 1984 when the first heart transplant was done so that the patient could live five years. By that point, the Rav J.B. Soloveitchik was not functioning due to Alzheimers.

Almost everyone who had a heart transplant in 1995 is still alive today. It is difficult to take too seriously the position of the poskim such as the Rav and Reb Moshe prior to this development.

At a famous Agudah meeting, Rabbi Moshe David Tendler was presenting and he kept saying, “My father-in-law [Reb Moshe] says.” Reb Moshe said, “The father in law will speak for himself.”

Towards the end of his life, Reb Moshe seems to have reversed his position on brain death because it is a different issue when we’re saying that one person will lead a normal life if we can do a transplant while the heart is still pumping. You can’t compare the discussions prior to this development to the ones after it.

Rav Hershel Schachter said they are going to harvest the heart anyway for an organ transplant, no matter when you rule the person dead. This is not true, because it is a very tricky matter to transplant the heart. The heart has to be still beating when they harvest it. You need many biological points of match to do a transplant. You can’t take a heart from anyone and transplant it to anyone. There has to be enough match that we can suppress the immune system enough that the recipient’s body will accept the heart.

More people die with signed donor cards than hearts we can use. Not because their hearts are not usable, but because we don’t have anyone with a close enough match to use the heart. They will harvest a heart for a specific person.

There’s a short time period from the point of harvest to finishing the transplant. We often move the person dying to close proximity (same city or same coast of the United States) with the patient to do the operation.

They will have a helicopter waiting on the roof to take the heart to a waiting plane that will depart immediately. The surgeons will already be in the middle of the operation. They will know at what time they will have to put the heart in and they will be at that point in the operation when the heart arrives.

It reminds me of when Rav Schachter said during the disengagement from Judea and Samaria that IDF might have to “shoot the prime minister.”

Rav Schachter often shoots from the hip.

On September 15, 2010, Rav Schachter said: “I happen to be very friendly with R. Druckman, but I don’t understand why he got involved in gerus [conversions]. I understand the government appointed him, but why did he accept? It’s not his field. It’s like them asking me to be in charge of spaceships; it’s not my field! He’s not in the area of pesak Halakhah. He’s a wonderful rabbi but he’s not really involved in the area of pesak Halakhah.”

Rav Haim Drukman is certainly considered a posek (ruler on Jewish law) and a dayan (judge in a religious Jewish court) by the Modern Orthodox aka Religious Zionists in Israel.

Mordechai Eliyahu became the Sephardi Chief Rabbi of Israel in 1983, he asked Rav Drukman to do giur (conversions). He got three dayanim (judges) — Eliezer Yehuda Waldenberg, Zalman Nechemia Goldberg, and Shlomo Dichovsky — from the Bais Din HaGadol in Jerusalem to sit with him for many months until they said it was ridiculous for them to come anymore because Rav Drukman had it handled.

Rav Drukman was such a widely accepted dayan that when Rav Mordechai Eliyahu and Rav Avraham Shapira left the Chief Rabbinate in 1992, they formed their own Beit Din with Rav Drukman when Rav Eliezer Yehuda Waldenberg became too ill to continue.

Rav Hershel Schachter has never sat on a Bais Din with anyone of the stature of Rav Avraham Shapira and Rav Mordechai Eliyahu.

Rav Schachter shoots from the hip and all these people just go “bah.” They’re sheep. Rav Schachter is brilliant and knowledgeable but he doesn’t know how to control his mouth and to know when to say he doesn’t know.

According to Rabbi Eisman (sp?), who helped run Rav Avraham Shapira’s office as Chief Rabbi for the Ashkenazim, there would be questions on this every week. We always said that brain death is death. Rav Shlomo Zalman Auerbach and Rav Elyashiv, who’ve said it is not death, would send them the questions so they could do it (treat brain death as death). They wouldn’t answer them themselves.

When asked about this matter, Zalman Nechemia Goldberg said he hadn’t looked into it. He said his father-in-law, Rav Shlomo Zalman Auerbach, would send these questions to Rav Avraham Shapira.

So the two major Israeli poskim opposed to considering brain death as death would send such questions to people with opposing views.

The authors of the RCA report, such as Rabbi Mordecai Willig, are not the stature of Rabbi Moshe David Tendler who wrote the report about 15 years ago. What gives them the authority to overturn his work?

When Rav Mordechai Willig and Rav J. David Bleich write, they quote Rav Avraham Shapira and Rav Mordechai Eliyahu all the time. Rabbis Shapira and Eliyahu never quoted rabbis Willig and Bleich.

This would be a bad joke if the opinions of rabbis Willig, Bleich and Schachter weren’t killing people. Because of their rulings, many people who might’ve donated organs will not.

I suspect that Rav Schachter’s position will gain prominence in most Orthodox circles in the United States though a huge number of people still turn to Rabbi Moshe David Tendler on these issues.

As long as Reb Moshe Tendler was alive, few people cared what Rav Schachter said. He was a conduit to the Rav. That’s it.

Rabbi Moshe David Tendler is an original thinker. Rav Schachter is a tape recorder. He’s excellent at regurgitating other people’s opinions.

Rabbi Moshe David Tendler is less fun to be in a shiur (class) with because he can beat you up with his brain. Rav Schachter doesn’t beat up his talmidim (students). The popular learning now at YU is with Rav Schachter. He’s the most popular rosh yeshiva at YU. He’s gentle with his students. He’s there all the time. He doesn’t have a shul. He doesn’t have a Biology department to run. He doesn’t have Biology classes to give. Rabbi Moshe David Tendler has all of those things.

Rav Schachter is in the Beit Midrash all day. He’s there.

Rabbi Moshe David Tendler is an original thinker. For most Orthodox Jews today, original thought is threatening. Rabbis fear making decisions these days. With his medical work, Rabbi Moshe David Tendler is not only making decisions, he’s making big decisions.

About Luke Ford

I've written five books (see Amazon.com). My work has been followed by the New York Times, the Los Angeles Times, and 60 Minutes. I teach Alexander Technique in Beverly Hills (Alexander90210.com).
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