Determining death in trauma victims

In our last post, we saw that Rabbi Feinstein considers the interaction between different bodily functions central to the way we determine the moment of death.  This is a more nuanced and complicated approach than that proposed by his questioner, Rabbi Chaim Dov Ber Gulevsky, which isolates heart activity as the single relevant factor.  The practical ramifications of Rabbi Feinstein’s position become clear in the 1976 teshuvah (Yoreh Deah 3:122) in which Rabbi Feinstein addresses the question of when a patient may be disconnected from a respirator or other life support apparatus.  Here, too, Rabbi Feinstein firmly asserts that death is diagnosed by the absence of spontaneous respiration.  The difficulty posed by patients receiving artificial ventilation is how to assess whether or not they are still capable of breathing independently:  Rabbi Feinstein maintains that the general practice of removing the respirator in order to assess the patient’s spontaneous respiratory ability is forbidden, presumably because the act of disconnecting the patient from the respirator might inadvertently cause his death.[1]  As a result, Rabbi Feinstein allows such an assessment to be done only when the respirator must be removed for maintenance or the replacement of the oxygen tank.[2]

The problem is compounded, however, in cases where the patient’s condition is the result of an accident or other sudden event:

אבל זהו באינשי שנחלו בידי שמים באיזו מחלה שהיא, אבל באלו שהוכו בתאונת דרכים (בעקסידענט ע”י הקארס) וע”י נפילה מחלונות וכדומה, שאירע שע”י התכווצות העצבים באיזה מקומות הסמוכים להריאה ולכלי הנשימה אינם יכולין לנשום, וכשיעבור איזה זמן שינשומו אף רק ע”י המכונה יתפשטו מקומות הנכווצים ויתחילו לנשום בעצמם, שאלו אף שאין יכולין לנשום בעצמן וגם לא ניכרין בהם עניני חיות אחרים אפשר שאינם עדיין מתים.  וכיון שאתה אומר שעתה איכא נסיון שרופאים גדולים יכולין לברר ע”י זריקת איזו לחלוחית בהגוף ע”י הגידים לידע שנפסק הקשר שיש להמוח עם כל הגוף, שאם לא יבא זה להמוח הוא ברור שאין להמוח שוב שום שייכות להגוף וגם שכבר נרקב המוח לגמרי והוי כהותז הראש בכח, שא”כ יש לנו להחמיר באלו שאף שאינו מרגיש כבר בכלום אף לא ע”י דקירת מחט ואף שאינו נושם כלל בלא המכונה שלא יחליטו שהוא מת עד שיעשו בדיקה זו שאם יראו שיש קשר להמוח עם הגוף אף שאינו נושם יתנו המכונה בפיו אף זמן גדול, ורק כשיראו ע”י הבדיקה שאין קשר להמוח עם הגוף יחליטו ע”י זה שאינו נושם למת.

וגם הערת דבאלו שלקחו מיני סם וכגון הרבה כדורי שינה שעד שיצא הסם מהגוף אינם יכולין לנשום, שלכן יש להצריך שהמכונה תהיה בפיו זמן ארוך עד שיהיה ברור שכבר אין הסם בגוף שיכולין הרופאים לבדוק זה בטפת דם שיוציאו ממנו, ואז יוכלו שלא להחזיר את המכונה לפיו עוד הפעם ויראו שאם אינו נושם כלל הוא מת ואם נושם אף רק בקושי הוא חי ויחזירו המכונה לפיו עוד הפעם.

But all this is in reference to people suffering from a disease, but regarding those who were injured in a car accident or a fall from a window and the like, it may occur that they can’t breathe due to the contraction of the nerves near the lungs and respiratory organs, but after breathing for some time by means of a respirator these contracted nerves will expand and they will begin to breathe independently.  Regarding these individuals, even if they can’t breathe independently and no other indicia of life are visible, it’s possible that they’re still not considered dead.  And since you say that there’s now a test with which expert doctors can determine—by means of injecting [a radioactive nucleotide solution] into the blood vessels—whether the connection between the brain and the body has been severed, for if [the radioactive solution] doesn’t reach the brain, it’s clear that the brain has no more bearing on the body and also that the brain has rotted completely, and it’s as if the head was forcibly severed from the body; if so, we must be stringent with such a patient such that even if he’s completely unresponsive—even to a pinprick—and even if he doesn’t breathe independently at all, we may not determine that he is dead until they perform this test.  For if they see that there is a connection between the brain and the body—even if he’s not breathing—they should put the respirator in this mouth, even for a long time; and only when they determine by means of this test that there is no longer a connection between the brain and the body, then they may determine—based on lack of independent respiration—that he is dead.

You also noted that there are those who have taken types of drugs, such as an overdose of sleeping pills, who cannot breathe until the drugs leave their body.  Therefore on emust require that the machine [i.e., respirator] remains in their mouth for an extended period until it’s clear that the drugs are no longer present in his body, which the doctors can check by extracting blood.  And then they may refrain from returning the [respirator] to his mouth [once it is removed for servicing] and observe him, for if he doesn’t breathe at all he is dead, but if he breathes—even if only with difficulty—he is alive, and they must return the [respirator] to his mouth once again.

Rabbi Feinstein is aware that there are numerous conditions that may cause cessation of spontaneous respiration.  If there is a significant chance that the condition preventing spontaneous respiration is temporary (e.g., the thoracic cavity may be compressed, the patient has overdosed on barbiturates), Rabbi Feinstein insists that this does not constitute death, and additional tests have to be performed to confirm the individual’s death.

Even before we consider the significance of the specific test that Rabbi Feinstein relies upon, let us note that the very requirement for additional confirmation is a direct consequence of the position Rabbi Feinstein formulated in Y.D. 2:146.  Halakhah recognizes cessation of spontaneous respiration as the definitive indicator of death, but only because it is the final bodily process to stop when the heart and the brain no longer provide life force to the body.  Should there be some other possible cause for the cessation of spontaneous respiration, it would not necessarily attest to the failure of the life-giving organs and thus not serve as an unequivocal indicator of death.  The innovative point of Rabbi Feinstein’s ruling in Y.D. 3:132 is merely that in cases of trauma and the like, one must always be concerned that breathing has stopped because of a temporary—and hence peripheral—condition. 

This simple point effectively refutes the logical arguments forwarded by opponents of brainstem death as to why cessation of spontaneous respiration cannot serve as a reliable indicator of death, even if such a condition is irreversible.  For instance, Rabbi J. David Bleich frequently mentions the example of a polio victim dependent on an iron lung as an individual who is permanently incapable of breathing and yet is obviously not dead.[3]  In a similar vein, Rabbi Bleich cites Shmuel’s statement on Gittin 70b that a man whose trachea and esophagus have been severed has the legal capacity to issue a get for his wife: despite his presumed inability to breathe (and his impending death), he is still considered to be alive.[4]  All that these cases demonstrate is that the patient’s inability to breathe—even as a permanent condition—is irrelevant to the determination of death unless it reflects the failure of the heart and the brain.  In that sense, these cases are no different than Rabbi Feinstein’s case of a patient whose inability to breathe is caused by a mechanical or chemical problem rather than a neurological one.  Rabbi Moshe Dovid Tendler puts it succinctly: “The question isn’t whether a person can or cannot breathe, but only why he can’t breath [sic].”[5]

Understanding the significance of the test that Rabbi Feinstein relies on to determine death in the case of a trauma victim—a radionuclide cerebral blood flow scan—requires us to know something of the background of this teshuvah.  The wording of Rabbi Feinstein’s explanation—“…it’s clear that the brain has no more bearing on the body and also that the brain has rotted completely, and it’s as if the head was forcibly severed from the body”—closely echoes the wording of a position articulated by Rabbi Tendler, the questioner to whom this teshuvah is addressed.  In his own writings,[6] Rabbi Tendler argues that the medically accepted standard of “whole-brain death”—defined as the complete destruction of the entire brain (i.e., including the brainstem) and established by the complete cessation of all brain functions—should be considered a halakhically acceptable standard of death, since it constitutes “physiological decapitation”.       

The main difficulty raised by this passage is that some of the medical assumptions it is based on have now been called into question.  In the past two decades, research has shown that even in patients who meet the accepted standard of whole-brain death, the brainstem often continues various homeopathic functions, such as regulation of body temperature, allowing the body to maintain a basic functioning level for extended periods of time.  (We will discuss this data at greater length below.)  Studies have also shown that brain tissue in brainstem dead patients remains intact to a greater degree than was previously thought.[7]  In essence, the new medical data establishes a new context, one in which Rabbi Feinstein’s explanation that “the brain has no more bearing on the body and also that the brain has rotted completely” is no longer completely accurate.  As with any halakhic ruling, the new context demands that we consider whether or not Rabbi Feinstein’s ruling still applies—whether or not the phrases that refer to the disconnect between the brain and the body and to the destruction of the brain are essential to the meaning of the overall teshuvah.  Based on Rabbi Tendler’s writings, which define death as the complete destruction of the brain and the cessation of all brain functions, we might well conclude that any condition short of that state would not be considered death.  In other words, we would maintain that the phrases cited above should both be taken literally and be considered necessary conditions for Rabbi Feinstein’s endorsement of the radionuclide scan.[8]

A second problem, quite apart from the issue of new medical data, is that Rabbi Feinstein’s reliance on the radionuclide scan seems to contradict the introductory statement to Y.D. 2:146 (cited above) that Halakhah does not determine death by cessation of neurological functions.  This is articulated most explicitly by Dr. Avraham Steinberg in his article explaining the ruling of the Israeli Chief Rabbinate that death is determined by irreversible cessation of respiration.  Based on this, Dr. Steinberg concludes that this teshuvah represented a retraction of Rabbi Feinstein’s earlier position.[9]

It should be evident that both of these problems— the subversive force of the new medical findings and the tension between Rabbi Feinstein’s teshuvot—are predicated on the assumption that Rabbi Feinstein’s endorsement of the radionuclide scan means that he is using brain criteria as an independent indicator of death, distinct from cessation of breathing.  Yet there is little in Rabbi Feinstein’s language to support this interpretation.  Whereas Rabbi Tendler frames his analysis as a defense of a brainstem-death standard, of which cessation of respiration is only one component, Rabbi Feinstein begins his analysis in Y.D.3:132 from the same position with which he began Y.D. 2:146, that cessation of breathing—not cessation of brain function—is the definitive indicator of death.  The reason Rabbi Feinstein’s reliance on the blood flow test does not contradict that earlier teshuvah is that—as we saw above—Rabbi Feinstein subsequently establishes that cessation of respiration serves only as an indication that brain (and heart) function have ceased.  This is the logic behind his use of the radionuclide scan in Y.D. 3:132: when other factors may be preventing spontaneous respiration, a blood flow test should be used to clarify whether cessation of breathing is the result of the brain not providing life force to the body or of another, peripheral condition.  Hence he states that even once the test establishes a lack of blood flow to the brain, death is only determined only “based on lack of independent respiration.”

Moreover, Rabbi Feinstein states in Y.D.2:146 that Halakhah recognizes spontaneous respiration as the final bodily function to cease when the heart and brain stop providing life force to the body, suggesting, as we noted above, that it is the definitive indicator of life.  To the extent that this is so (an issue we will address shortly), the only fact that the radionuclide scan need confirm is that the brain is incapable of supporting spontaneous respiration.  Any aspect of brain function (or integrity) that doesn’t relate to the patient’s ability to breathe independently would not be considered life-giving, and would therefore be irrelevant to the halakhic determination of death.  Based on this, the explanation that Rabbi Feinstein offers for the significance of the blood flow test (“that the brain has no more bearing on the body and also that the brain has rotted completely”) would not be an essential aspect of his ruling, even if he originally intended these words literally.  As far as Rabbi Feinstein’s ruling is concerned, the medically accepted criteria used to establish brainstem death would be sufficient, since the new medical findings uphold the fact that patients diagnosed as brainstem dead are—without exception—incapable of spontaneous respiration.[10]

The notion we have been developing, that Rabbi Feinstein considers only some manifestations of respiratory and brain activity relevant to the determination of death, speaks to an essential but somewhat disconcerting aspect of his position, one that I think has caused much of the confusion about where he stands on brainstem death.  Simply put, Rabbi Feinstein does not recognize any one organ or bodily function as significant in-and-of itself.  Cessation of spontaneous respiration is significant only in as far as it indicates the cessation of heart/brain function, but heart/brain function is significant only as so far as it is manifest in spontaneous respiration.  The obvious circularity of this position strikes many readers (consciously or unconsciously) as illogical, as indeed it would be were it not for the fact that it reflects the fundamentally circular nature of all biological systems.  The human body, for instance, is an interconnected system of organs, in which the significance of any organ is no more than the role it plays in sustaining all the other organs.[11]  This is the black box we refer to as life: an amalgam of biological functions that is somehow more than the sum of its parts.  To depict any one organ or function as being “the primary vital force in the body”[12] is to impose upon it an artificial, acontextual significance that is at odds with the way the body actually functions.  And to insist, as opponents of brainstem death frequently do, that defining death as cessation of reparation precludes taking brain and heart activity into account is to miss the central tenet in Rabbi Feinstein’s position.

Cardiac activity in the absence of respiration

This brings us to one of the most contentious points in Rabbi Feinstein’s position: the significance of residual heart activity when there is no spontaneous respiration.  Toward the beginning of Y.D.2:146, he writes:

אבל לדמות לזה חשיבות מיתה לומר דהאדם לומר שאף שרואים הרופאים ע”י עלעקטריק ראדיאגראם שאיכא תגובות לב נחשב מת, נראה לע”ד שאינו כן. דהחת”ס בתשובה הובא בפ”ת יו”ד סימן שנ”ז סק”א כתב דהא דאיתא במסכת שמחות פ”ח ה”א פוקדין על המתים עד ג’ ימים ומעשה שפקדו אחד וחי כ”ה שנים, הוא שאיכא מציאות רחוק מאד… אבל הוא רחוק אפילו ממיעוטא דמיעוטא דלכן אין לחוש לזה ומותר לקוברו תיכף כשפסקה נשימתו דאף שהוא ענין פק”נ אין לנו לחוש לדבר רחוק כזה.

וא”כ במי שרואין העלעקטריק ראדיאגראם שיש לו איזה חיות הרי על אופן זה ליכא שוב אפילו רוב לומר שהוא מת, ואולי גם מיעוט ליכא והוא החי ממש אף שאינו נושם, כאיש ההוא שנקבר בהכוך מחמת שפסקה נשימתו וחי אח”כ כ”ה שנה, מאחר דאיכא עכ”פ איזה מציאות, וזהו ג”כ היחידי דאיכא במציאות זה. ולכן יהיה אסור לקבוע לאיש כזה ואדרבה יהיו מחוייבים להשתדל ברפואות אם אפשר ומסתבר שגם בשבת.

But to compare this to the determination of death to say that an individual is considered dead even if the doctors see cardiac activity on an electrocardiogram, in my humble opinion it seems that this is incorrect.  For the Hatam Sofer—in a teshuvah cited in Pitehei Teshuvah, Yoreh Deah 357:1—interpreted that which it says in Semachot 8:1—”One should examine the dead for three days, and there was a case where they examined [one individual who was thought to be dead and found that he was alive] and he survived for another 25 years”—to mean that there’s a very remote possibility that [a person could survive without breathing for up to three days]… but it’s so remote that we need not be concerned for it and one may bury a person as soon as he stops breathing, for even though there’s a concern for saving a life we need not worry about such a distant possibility.

If so, in the case of one who shows signs of life on an electric radiogram, there’s no majority—or even significant minority—of such people who are considered dead, and therefore he’s considered to be alive even though he’s not breathing—like the individual who was buried in the crypt because he had stopped breathing and went on to live for another 25 years—since there was such a case, even if this is the only such case that ever occurred.  Therefore it’s forbidden to determine [death] for such a person; on the contrary: they must try to treat him medically, if possible, even [if it involves violating] Shabbat.

Here Rabbi Feinstein addresses the same problem faced by Hatam Sofer: despite the conclusion of the sugya in Yoma 85a that absence of breathing is a necessary and sufficient condition to establish death, a few halakhic sources—most prominently the mishnah in Semahot—suggest that individuals can survive for extended periods of time without breathing.[13]  Like Hatam Sofer, Rabbi Feinstein dismisses these instances as so rare that in routine cases, they need not be taken into account.  However, he insists that if there are other signs of continued vitality, such as heart activity detected on an ECG, the possibility that the individual might survive becomes far more plausible, and hence he must be treated as living.  Hence the conclusions we drew from Rabbi Feinstein’s analysis of Hakham Zevi—that absence of breathing is the definitive indicator of death, and that heart function in the absence of spontaneous breathing is irrelevant to the determination of death—are suddenly called into question.

This issue is of paramount significance within the debate over brainstem death because artificial ventilation of a brainstem-dead patient (along with parenteral nutrition) provides the heart with sufficient oxygen and nutrients for it to continue beating independently.  We should note, however, that the above passage does not directly address this case.  Rather, Rabbi Feinstein is addressing the case of an individual who shows sub-perceptible cardiac activity in the absence of any life support, as evidenced by the fact that it is detected only with an ECG (whereas artificial life support allows the patient to maintain a regular heartbeat and pulse).[14]  The question we need to address, then, is whether the heartbeat of a brainstem-dead patient on artificial life support is analogous to the kind of heart activity that Rabbi Feinstein is referring to.

At first glance, the two cases seem would not seem to be comparable.  The basis for Rabbi Feinstein’s ruling is the concern that this patient could turn out to be the rare individual who recovers from his current condition, akin to the individual mentioned in Semahot.  Thus it would seem that the faint heart activity detected on the ECG is significant only in that it appears to contradict our diagnosis of death, suggesting that the observable absence of other vital signs may not tell the whole story.  This cannot be said of the heartbeat of a brainstem-dead patient, which is perfectly consistent with our expectations for someone in this condition.  To the extent that we hope against hope that a patient diagnosed as brainstem-dead might make a miraculous recovery (there are, after all, a handful of well-publicized instances of this happening), it is based on the possible inaccuracy of the diagnostic tests that were administered, not on the persistence of his heartbeat.

On the other hand, a compelling argument can be made that heart activity in a brainstem-dead patient is significant even if it does nothing to indicate that the patient might recover.  For Rabbi Feinstein, this would not be because a heartbeat in-and-of itself constitutes a sign of life; as we noted above, he specifically rejected that explanation when it was suggested by Rabbi Gulevsky.  Rather, it’s because the heart of a brainstem-dead patient is not only beating but functioning in the sense that Rabbi Feinstein explained: it provides life force to the rest of the body.  As we noted above, studies have shown that the bodies of brainstem-dead patients can maintain virtually all basic metabolic functions, and as a result they exhibit numerous external signs of vitality: hair and nails grow, wounds heal, pregnant women carry their fetuses to term.  There are even documented cases of brainstem-dead juveniles who continue normal proportional growth and development.  The persistence of all these functions stems from the fact that heart continues to supply the rest of the body—including small portions of the brainstem—with oxygen and nutrients via the bloodstream.  Proponents of brainstem death might write off these functions as artifacts, and hence dismiss the heartbeat itself as mere muscle spasms.  But these functions seem so unnervingly lifelike that a certain point, the distinction between lifelike and alive becomes hard to justify.        

If the text of Y.D. 2:146 doesn’t provide enough information to adjudicate between these two interpretations, Rabbi Feinstein’s ruling in Y.D. 3:132 regarding trauma victims proves decisive.  In that teshuvah, he directly addresses the case of a patient on artificial life support and does not mention his heart activity as a relevant factor, even though, as we mentioned, such a patient will exhibit a regular heartbeat.  Were this merely an argument from silence, one could argue—with some difficulty—that Rabbi Feinstein is referring to a case where for whatever reason the patient’s heart has stopped, and he makes no mention of this because he takes for granted that any heart activity would constitute as a dispositive sign of life.[15]  However, Rabbi Feinstein’s endorsement of the radionuclide scan confirms that he is referring to a typical case where the patient’s heart is beating, since this test relies on blood flow from the heart.[16]  Unless we assume that Rabbi Feinstein reversed his earlier position, we must conclude that his ruling in Y.D. 2:146 regarding heart activity in the absence of spontaneous respiration would not apply to a patient connected to a respirator.

The upshot of our analysis is that the conclusions we drew from Rabbi Feinstein’s analysis of Hakham Zevi are valid: heart activity following the irreversible cessation of spontaneous breathing is irrelevant to the determination of death.  In essence, Hakham Zevi’s position that the heartbeat is a necessary condition for life does not entail that it is also sufficient condition for life.  The reason Rabbi Feinstein considers heart activity in a non-breathing and non-ventilated patient to be significant is that there is reason to believe that his cessation of breathing is temporary, just like the individual referred to in the mishnah in Semahot.

Obviously, this position creates an uncomfortable situation where individuals whose bodies remain largely intact and functional are declared to be dead, and it is appropriate that we conclude our analysis by briefly offering a perspective on this ‘meta-problem’.  It is, of course, not a strictly halakhic or even Jewish issue: non-Jewish ethicists—both secular and religious—struggle with exactly this difficulty.  What we must recognize is that regardless of how one chooses to define death, that definition can be challenged with counterexamples.  For example, proponents of a cardiac definition of death point to the fact that the heartbeat of a brainstem-dead individual is “in no sense artificial”,[17] yet with modern life support systems, that same heartbeat can be maintained even following decapitation.  All this goes to show is that our definitions of life and death are guided by our preconceived notions of what life and death look like, rather than a rational—or even consistent—set of guidelines.  Nature itself does not impose significance on any given phenomenon, or establish boundaries as to when one thing begins and another ends.  This amorphous character of nature means that whichever point in the gradual process of the body’s deterioration we choose to call the moment of death will necessarily seem arbitrary.

Another way of putting this is that the distinction between life and death is essentially legal, not scientific.  The need to have a definitive point at which the human individual ceases to exist reflects the exigencies of society, and the different positions among contemporary ethicists as to what that point should be reflect different societal conceptions about what is the essence of humanity.  To expect the moment of death to represent the absolute moment at which all biologically significant functions cease is simply to misunderstand the relationship between law and science.  There may well be a host of complex bodily functions that continue after the cessation of spontaneous respiration; what Rabbi Feinstein’s ruling establishes is that however lifelike they may be, within the context of Halakhah they are not considered to be manifestations of life.

In conclusion, the position articulated in Rabbi Feinstein’s two main teshuvot on this issue is that we determine death at point where the body as a composite organism is permanently incapable of supporting spontaneous respiration.  As we noted above, this analysis does not address Rabbi Feinstein’s opposition to human heart transplants as late as 1978, but we find little evidence that his opposition was based on a rejection of the standard of brainstem death currently accepted by the general medical community.[18]

The main purpose of this series of posts has been to offer a fresh perspective on the central texts in the debate over brainstem death, and to highlight elements that have frequently been downplayed or overlooked.  It is my hope that this analysis will prompt proponents on both sides to reexamine their interpretations of these sources, and help bring us closer to a consensus on this fundamental issue.

[2] Obviously this recommendation is not relevant to contemporary respirators, which do not rely on oxygen tanks and do not normally need to be removed for service.  However, there are other ways for doctors to assess the patient’s ability to breathe independently while complying with Rabbi Feinstein’s restriction, such as providing oxygen through a thin tube inserted into the trachea while disconnecting the main tube of the respirator.  (Dr. Edward Reichmann, personal communication)

[3] “בענין מות מוי וקביעת זמן המות בהלכה”, אור המזרח 36:3-4 (1988), pp. 73-74 ; Tradition (1989), p. 54.

Dr. Steinberg (“קביעת רגע המוות והשתלת הלב [תשובות להשגות]“, אור המזרח 36:3-4 [1988], p. 283) counters Rabbi Bleich’s polio victim example by saying that the overwhelming majority polio victims eventually recover their ability to breathe, hence they do not meet the standard of irreversible cessation of spontaneous respiration which Rabbi Feinstein requires to determine death.  Rabbi Bleich (“קביעת רגע המוות ע”י הפסקת פעולת המוח [תשובות להשגות]“, אור המזרח 37:1 [1988], pp. 81-82) responds that this objection is moot, since some polio victims—not to mention victims of numerous other degenerative disorders—are forever incapable of independent respiration.  However, this entire discussion is beside the point: a necessary condition of brainstem death is that cessation of respiration be irreversible, but that’s only because it must attest to the irreversible cessation of brain and/or heart function.

[4] אור המזרח 36:3-4 (1988), pp. 73-74 ; Tradition (1989), pp. 57-58.  Rabbi Bleich insists that the only plausible reason why a polio victim or an individual with a severed trachea would be considered alive is that he has a heartbeat or other vital movement.  He dismisses an equally plausible reason—the fact that these individuals are fully conscious—by saying that “consciousness, while assuredly absent in an organism meeting halakhic criteria of death, is nowhere posited as a condition negating otherwise dispositive criteria of death.” (ibid.; cf. אור המזרח 37:1 [1988], p. 82)  Even if we accept Rabbi Bleich’s assertion that consciousness cannot be considered a factor in determining life and death unless it is explicitly identified as such in halakhic literature (as we noted above, Rabbi Feinstein accepts brain function as germane to the halakhic definition of life even though it, too, is never mentioned explicitly), we might suggest that this is precisely what the gemara in Gittin 70b is doing—establishing consciousness as a dispositive sign of life! 

[5] “Halakhic Death Means Brain Death”, The Jewish Review (Jan.-Feb. 1990), p. 7.

[6] See Frank J. Veith et al., “Brain Death: I. A Status Report of Medical and Ethical Considerations”, Journal of the American Medical Assoc. 238:15 (Oct. 10, 1977), pp. 1651-1655; Dr. Fred Rosner and Rabbi Dr. Moshe Dovid Tendler, “Definition of  Death in Judaism”, Journal of Halacha and Contemporary Society 17 (Spring 1989), pp. 24-25.

[7] See Abraham Sofer Abraham, Nishmat Avraham, Yoreh Deah 339:2; Bleich, “Brain Death: Medical Myth and Semantic Sleight of Hand”, Le’ela [March 1996], pp. 36-37; Kunin, op. cit.

[8] Abraham (ibid.); Kunin (ibid.); RCA paper, pp. 50-52.  Cf. Bleich, אור המזרח (1987), p. 82, which was written before the medical data we have referred to came to light, but nonetheless insists that the phrase “the brain has rotted completely” be interpreted literally (see below).

We should note that Dr. Kunin’s literal interpretation of this teshuvah does not resolve exactly what conditions would be acceptable as a definition of “physiological decapitation”.  He concludes that “R. Feinstein’s opinion that brain death is like decapitation was made with very clear conditions: 1) Proof that there is no connection between the brain and the body and 2) the brain has been completely destroyed.” (op. cit., p. 56)  Dr. Kunin’s language suggests that these are two independent conditions, yet he does not specify what exactly would constitute complete destruction of the brain, nor does he explain what meaningful connection might remain between it and the body once the brain has been “completely destroyed”.

In contrast, Rabbi Bleich has repeatedly stated that only complete lysis of every cell in the brain would be comparable to decapitation, since the extreme nature of decapitation could be paralleled only by the most extreme destruction possible.  (Tradition [1977], p. 134; [1989], pp. 46-49; Le’ela [1996], pp. 35-36)  Yet the very fact that we are using an analogy—comparing a case of decapitation to a case in which the head is still attached—means that the two scenarios will never be exactly alike, and that the point of comparison between them is not unequivocal.  The relevant aspect of decapitation may very well be that “the brain has no more bearing on the body”, in which case any residual cellular or even structural integrity (or residual electrical activity) in the brain would be irrelevant to the determination of death.  Likewise, Rabbi Bleich’s assertion that an organ is considered halakhically “dead” only upon its complete degeneration is inconsequential: the term “brain death” does not refer, as he implies, to the death of the brain, but rather to the death of the individual as determined by brain criteria.

[9]  אור המזרח (1987), pp. 61-2.

[10] This interpretation is presented extensively by Edward Reichman, “Don’t Pull the Plug on Brain Death Just Yet”, Tradition 38:4 (2004), pp. 63-69.

[11] See Tendler, “Halakhic Death”, p. 20: “The fact that a polio patient cannot breathe, but is yet alive, is based precisely on the fact that he is an organized system.”

[12] See Bleich above at n. 3.

[13] Likewise, R. Meir (mYevamot 16:3) cites a case in which “a man fell into a large cistern and emerged after three days”; Rashi (bYevamot 121a, s.v. אשתו אסורה) explains that R. Meir considers the possibility that an individual might be able to survive in water for a day or two.  These sources are obviously inconsistent with the findings of modern medicine, which asserts that depriving the brain of oxygen almost invariably results in death within a matter of minutes.  Rabbi Bleich (Time of Death in Jewish Law, pp. 48-50) tries to justify these sources by citing the phenomenon known as the mammalian diving reflex, though the longest documented period of survival as result of this phenomenon is less than an hour, far short of the periods mentioned in these sources.

[14] Dr. Abraham (אסיא [1997], p. 83) assumes that Rabbi Feinstein’s ruling would automatically apply to any cardiac activity, even though the reference to an ECG clearly indicates that the only explicit reference is to a patient without a regular heartbeat.  (As a result, Dr. Abraham struggles to comprehend Rabbi Feinstein’s ruling in Y.D.3:132; see following note)  The RCA paper (p. 49) goes a step further, directly misrepresenting which case is explicit and which is inferred: “Accordingly, a patient – dependent on a respirator – with a beating heart would not be considered as dead (based on the words of this תשובה , this might even [!] be true in a case where there was limited spontaneous cardiac activity that could only be detected through an E.K.G.).” 

[15] Dr. Abraham (ibid.) prefers this interpretation of Rabbi Feinstein’s ruling, in part because it would be consistent with the way he understands Rabbi Feinstein’s position in Y.D. 2:146 (see previous note).  However, while he finds it incredible that Rabbi Feinstein would contradict an earlier teshuvah, he finds it equally incredible that Rabbi Feinstein would require neurological confirmation—even as an added stringency—for the death of an accident victim with no spontaneous respiration and no heartbeat.  In contrast, Rabbi Bleich (Tradition [1989], pp. 59-60) does find this a reasonable understanding of Rabbi Feinstein’s ruling.

Rabbi Bleich also posits an alternate explanation for Rabbi Feinstein’s ruling.  In a 1977 essay (op. cit.), he explains that in the cases where Rabbi Feinstein permits not reattaching the patient to the respirator, his reasoning is based on his position in Y.D. 2:174 that “it is not necessary to prolong the life of a goses…  If not only medicaments but also oxygen need not be administered to a goses, it would follow that a goses need not be attached to a respirator.  This consideration is, however, germane only in the case of a patient actually in a state of gesisah.” (p. 132)  Rabbi Bleich revisits this explanation in his 1991 collection of essays, Time of Death in Jewish Law, where he apparently concedes that Y.D. 3:132 is referring to a case in which the patient’s heart is still beating, but insists that this teshuvah “addresses, not determination of death, but criteria for withholding treatment from a terminally ill patient”, in other words, the question of when the patient is considered a goses such that one may withhold (though not withdraw) the supply of oxygen. (p. 173)

Rabbi Bleich does not offer a line-by-line exegesis of Rabbi Feinstein’s teshuvah, but it is genuinely difficult to see how this approach, as Rabbi Bleich presents it, could possibly be sustained.  Contrary to Rabbi Bleich’s assertion that the teshuvah doesn’t address the determination of death, Rabbi Feinstein titles the teshuvah, “Establishing the time of death”, and opens with the words, “On the matter of determining when an individual is considered dead…”  In each of the cases he addresses, Rabbi Feinstein states that cessation of spontaneous renders the patient dead; he does not mention the word goses.  On the issue of returning the respirator to the patient’s mouth once it has been removed for servicing, Rabbi Feinstein writes:

 …But if the respirator stops working because the oxygen runs out, they shouldn’t put it back in his mouth for a short time—approximately 15 minutes, at which point if he’s no longer alive he will have stopped breathing and they will be certain that he’s dead.  But if he lives—that is, they see that he is breathing even without the respirator, but laboriously and haltingly—they must immediately return the respirator to his mouth…

The reason that Rabbi Feinstein doesn’t require the respirator to be reattached when the patient cannot breathe independently is that he is dead, not that he is a goses; the reason it must be returned if he can breathe independently is that he is alive, not that he is ‘not a goses’.  If the category of goses applies to any case in this teshuvah, it is the patient whose independent breathing is laborious and halting.  If this categorization is correct, then it would demonstrate that Rabbi Feinstein does consider oxygen a necessary component of treatment even for a goses.  (See above, n. 6)

The implausibility of this explanation suggests that Rabbi Bleich may have in mind something closer to the interpretation suggested by Rabbi Shlomo Zalman Auerbach in his assessment of Rabbi Feinstein’s letter to Dr. Eliot Bondi (published in אסיא [ספר], vol. 7 [Jerusalem: Dr. Falk Schlesinger Institute of Medical-Halachic Research, 1993], pp. 148-148a), which clarified his ruling in Y.D. 3:132  .  Rabbi Auerbach suggests that when Rabbi Feinstein states in that letter that a patient who cannot breathe independently is נחשב כמת (“considered to be dead”), he is relating only to the permissibility of stopping life support, not to the more stringent matter of actively harvesting the patient’s organs.  In other words, we are willing to rely on our diagnosis of death enough to stop treating the patient but not to harvest his organs.  According to this interpretation, a patient who could not breathe independently would not be considered a goses, but rather would fall within the range of a safeik hai/safeik meit—someone whose death is legally indeterminate.  According to this interpretation, the reason one need not reattach the respirator when the patient cannot breathe independently is not that he is considered a goses, but that with regard to the issue of withdrawing treatment, he is considered to be dead.

This explanation is certainly less problematic than Rabbi Bleich’s formulation, but still, there is nothing in Rabbi Feinstein’s language to indicate that he has any hesitancy about considering such patients to be dead.  Rabbi Auerbach acknowledges that this is not the simple meaning of the teshuvah; he proposes it only because he finds it hard to believe that Rabbi Feinstein would approve of harvesting the patient’s organs without saying so explicitly, given that this was such a “hot” topic in 1985 (when the letter to Dr. Bondi was written).  To this there is little more to say: Rabbi Auerbach may be correct, but his assessment of Rabbi Feinstein’s mindset may say more about his own predisposition on this issue.

[16] Dr. Mordechai Halperin, “על דעתו של הגר”מ פיינשטיין זצ”ל בסוגיית המוות המוחי”, אסיא [ספר], vol. 7, p. 69.

[17] Bleich, Tradition (1989), p. 59.

[18] Opponents of brainstem death have frequently noted that the second teshuvah expressing Rabbi Feinstein’s opposition to human heart transplants (Choshet Mishpat, 2:72) was written in 1978, only two years after his endorsement of the radionuclide scan to determine whether a moribund patient attached to a respirator could be considered dead.  They reason that if Rabbi Feinstein had wanted to rely on this test to permit the removal of organs from brainstem-dead patients, he would not have referred to heart transplants as “double murder”.  (See, for instance, Bleich, Tradition [1989], pp. 59-60; RCA paper, p. 54)  This interpretation seems to be a bit of wishful over-reading.  The reference to double murder is a single line in a teshuvah that is otherwise concerned only with the wellbeing of the heart recipient.  Rabbi Feinstein states that his continuing opposition to heart transplants reflects the medical community’s own moratorium on the procedure due to the low survival rate among recipients.  In stating that heart transplants would be considered “double murder”, it is likely that Rabbi Feinstein was simply reiterating his statement from 1968 without considering its precise implications for a procedure that few expected to be viable in the short term.  The expectation that Rabbi Feinstein would have addressed the issue of cadaveric organ donations in more substantive fashion is a classic case of hindsight bias.

Some opponents of brainstem death further note that the volume of Iggerot Moshe in which this teshuvah appears was published in 1985, when heart transplantation was quickly becoming an accepted procedure.  Again, they suggest that had Rabbi Feinstein endorsed removing organs from brainstem dead patients, he would not have approved this teshuvah for publication. (ibid.)  This objection ignores the fact that by 1985, Rabbi Feinstein’s teshuvah was out of date in a much more important way: the outcome for heart recipients had dramatically improved, and the medical consensus against the procedure that the teshuvah prominently cites no longer existed.  Moreover, most scholars acknowledge that by 1985, Rabbi Feinstein himself had given oral approval to potential heart recipients, indicating at the very least that his stated opposition to receiving heart transplants was no longer valid.  One can only conclude that in approving this teshuvah for publication, Rabbi Feinstein understood that readers would take into account that it was dated to 1978.

Rabbi Moshe Feinstein was one of the very few contemporary poskim with sufficient stature to potentially resolve the contemporary halakhic dispute over brainstem death.  That Rabbi Feinstein’s position on this issue has become the subject of intense debate is particularly unfortunate.  It is also highly uncharacteristic: Rabbi Feinstein’s exhaustively reasoned teshuvot typically leave little room for misunderstanding, so that his legacy has largely avoided the kind of controversy which has marked that of other 20^th-centrury gedolim.  Proponents on both sides of the brainstem death debate sometimes give the impression that on this issue, as well, Rabbi Feinstein’s position is perfectly clear, and any confusion stems from the other side’s misinterpretation.  At the same time, others cite the ambiguity of Rabbi Feinstein’s position to undermine the possibility of using his writings to support the halakhic acceptability of brainstem death.  Without impugning these authors’ sincerity or integrity, I would suggest that they place too much emphasis on the most overt passages in which Rabbi Feinstein relates to the means of determining death, and in doing so miss the proverbial forest for trees.  We will endeavor to show that there is good reason to say that Rabbi Feinstein’s position is either ambiguous or non-committal on several points, but that for the most part, his writings on this topic establish a clear and consistent position.

The main reason for the ambiguity of Rabbi Feinstein’s position is simply that he refused to explain himself.  In a June 1968 teshuvah (She’elot Ve’Teshuvot Iggerot Moshe, Yoreh Deah 2:174), written just months after the first successful human heart transplant in Cape Town, South Africa, Rabbi Feinstein denounced the procedure as “truly the murder of two individuals”— the donor whose heart is excised, and the recipient whose functioning (if severely diseased) heart is exchanged with another of dubious value.  Clearly Rabbi Feinstein considered the criteria that doctors were using to establish the donor’s death to be inadequate.  However, rather than present the halakhic reasoning behind his position, Rabbi Feinstein insists that the only response that should be published in his name is a brief statement prohibiting the procedure and excoriating the doctors who were promoting it.  He states that any attempt to explain his position might lead people to question some of his proofs, thus opening the door to permitting a procedure that he considered outright murder.

There is, obviously, much more to discuss regarding Rabbi Feinstein’s position on brain death.  But the effect of Rabbi Feinstein’s uncharacteristically opaque initial response should not be underestimated.  The teshuvah that opens with this brief, forceful statement continues with a lengthy analysis of various issues related to the determination of death and end-of-life treatment.  But at no point in that teshuvah or in any of his other teshuvot relating to end-of-life issues does Rabbi Feinstein explicitly relate his halakhic analysis to his initial assertion prohibiting the removal of the donor’s heart.[1]  (The only place he refers to it again is in a brief 1978 teshuvah [Hoshen Mishpat 2:72] in which he confirms his earlier statement but adds no further elucidation.)  So perhaps the first thing we should say is that about Rabbi Feinstein’s opinion on brainstem death is that we will never have the full picture: whatever we conclude about his position, we should do so with a sense of humility.

Rabbi Feinstein’s general position and interpretation of Hakham Zevi

If there is a passage in Rabbi Feinstein’s later writings that could be understood as clarifying his original response, it is the opening paragraph of a teshuvah penned just over two years later (Yoreh Deah 2:146), where he refers to “what the doctors say—that indications of life and death are found in the brain”.  As in his initial statement, Rabbi Feinstein immediately rejects the doctors’ position:

מה שאומרים הרופאים שסימני חיות ומיתה הוא בהמוח שאם לפי השערותיהם אין המוח פועל פעולתו הוא כבר נחשב למת אף שעדיין הוא נושם… אבל האמת ודאי שלא זה שפסק המוח לפעול הוא מיתה דכל זמן שהוא נושם הוא חי, רק זה שפסק המוח לפעול פעולתו הוא דבר שיביא למיתה שיפסוק לנשום, ואפשר כיון שעדיין הוא חי שאיכא מיני סמים בעולם מהידועים לאינשי או שעדיין אינם ידועים שיעשו שהמוח יחזור לפעול פעולתו… שלכן פשוט שההורגו הוא רוצח וחייב מיתה… דהא לא הוזכר בגמ’ ובפוסקים שיהיה סימן חיות במוח, ולא שייך לומר נשתנו הטבעים בזה, דגם בימי חז”ל היה המוח פועל הפעולות כמו בזמננו וכל חיות האדם היה בא ממנו ומ”מ לא היה נחשב מת בפסיקת פעולת המוח, וכמו כן הוא ברור שגם בזמננו הוא כן.

Regarding what the doctors say that indications of life and death are found in the brain, that if according to their assessment the brain isn’t functioning [the patient] is considered dead even if he’s still breathing…   The truth is that cessation of brain function isn’t death, since as long as one is breathing he’s considered alive; rather the cessation of brain function is what causes death since [the patient] will stop breathing, and it’s possible that since he’s still alive that there are types of drugs—either of those that are known to man or that are as-of-yet unknown—that would cause the brain to function again…  Therefore it’s clear that one who kills such an individual is a murderer and liable for capital punishment… for neither the Talmud nor the poskim mention that indications of life are found in the brain, and it’s not possible to say that nature has changed, for even in the time of the Sages the brain worked as it does now and all human life depended on it and even so one wasn’t considered dead upon cessation of brain function, and so it’s clear that the same is true in our time.

The central point that emerges from this passage is that Rabbi Feinstein’s objection to the doctors’ use of loss of brain function to determine death is that the patient is still breathing.  On a purely technical level, then, if the doctors’ position that Rabbi Feinstein presents here is the same one he was referring to in his 1968 statement, it’s clear that he was objecting to the diagnosis of death based on partial loss of brain function (e.g., cerebral function), since full loss of brain function—specifically loss of brain stem function—is inconsistent with continued spontaneous respiration.[2]

On a more conceptual level, Rabbi Feinstein rejects the notion of “brain death” in the sense that he does not regard brain function as the definitive indicator of life and death; that is to say, he rejects the notion espoused by the secular medical community that death is defined as the cessation of neurological functions.  This is a vital point, one that Rabbi Feinstein returns to repeatedly in this teshuvah: Halakhah regards spontaneous respiration—over and above all other physiological functions—as the definitive indicator of life and death.  In support of this position, Rabbi Feinstein cites the sugya in Yoma 85a, which establishes that regardless of how a victim located in the rubble of a fallen building is uncovered, it is both necessary and sufficient to examine his nose.  Cessation of neurological functions cannot serve as the basis for determining death simply because it does not feature in halakhic literature.

If this passage seems dismissive of modern medicine, Rabbi Feinstein corrects that impression in subsequent passages, where he offers a more complex description of the relationship between respiration and other bodily functions:

אבל ברור ופשוט שאין החוטם האבר שהוא נותן החיות בהאדם, וגם אינו מאברים שהנשמה תלויה בו כלל, אלא דהמוח והלב הם אלו הנותנים חיות להאדם וגם שיהיה לו שייך לנשום ע”י פוטמו [חוטמו], ורק הוא האבר שדרך שם נעשה מעשה הנשימה שבאין ע”י המוח והלב, ואית לנו הסימן חיות רק ע”י החוטם אף שלא הוא הנותן ענין הנשימה, משום שאין אנו מכירים היטב בלב ובטבור וכ”ש שאין מכירין במוח, וכוונת הקרא דנשמת רוח חיים באפיו לא על עצם רוח החיים שזה ודאי ליכא בחוטם, אלא הרוח חיים שאנו רואין איכא באפיו אף שלא נראה באברים הגדולים אברי התנועה, וגם אחר שלא ניכר גם בדפיקת הלב ולא ניכר בטבור, שלכן נמצא שלענין פקוח הגל בשבת תלוי רק בחוטם.

However, it is abundantly clear that the nose isn’t the organ that gives life to a person, nor is it the organ on which life depends.  Rather the brain and the heart are the organs that give life to a person and enable him to breathe via the nose, and the nose is only the organ through which occurs the respiration that comes from the brain and the heart, and we have no indication of life other than nasal [activity]—even though the nose isn’t what generates respiration—since we cannot easily detect activity in the heart or abdomen and all the more so in the brain.  And the verse, “All that has the breath of life in its nostrils” [Gen. 7:22], isn’t referring to the [source] of the breath of life—for that’s definitely not in the nose, but rather [it’s saying that] the breath of life that’s visible to us is located in the nostrils, even if it’s not visible in the larger, moving organs or in the heartbeat or abdomen; and therefore the matter of clearing the heap on Shabbat depends only on nasal [activity].

Later in the teshuvah, Rabbi Feinstein twice reiterates this position:

…דהא ודאי לכו”ע הרי עיקר חיותא שאנו רואין הוא בחוטמו, ועיקר חיותא ליתן החיות והכח בהאברים הוא הלב והמוח.

…for surely everyone agrees that the primary manifestation of life that we see is nasal [activity], and the primary manifestation of life that gives life and strength to all the limbs is the heart and the brain.

…שודאי הלב הוא עיקר נותן החיות, וכן ודאי המוח נמי הוא עיקר נותן החיות שבכלל זה הוא גם הנשימה דרך החוטם כדלעיל.

…for it is certain that the heart is the main provider of life, and so, too, it’s certain that the brain is also the main provider of life—which includes breathing via the nose.

Notwithstanding his point that the gemara and later poskim make no mention of brain function as an indication of life, Rabbi Feinstein clearly has no problem accepting it as part of a broader definition of life within Halakhah.  That he does so without citing any sources suggests that he is fully willing to incorporate contemporary scientific perspectives into the halakhic process as long as they do not contradict established psak.  This, too, is a vital point, because it forces us to qualify what we mean when we say that Rabbi Feinstein rejects the notion of “brain death”: it does not mean that he considers neurological criteria irrelevant to the determination of death.  It’s clear from these passages that he considers all three factors—heart function, brain function, and respiration—germane to Halakhah’s understanding of life and death.

It is Rabbi Feinstein’s manner of integrating these three factors that constitutes the central difficulty in determining where he comes down on the issue of brainstem death.  First of all, he systematically refuses to single out either the heart or the brain as the primary source of life,[3] undermining the simple dichotomy that has framed the contemporary debate.  More problematic is way his description of the relationship between breathing and heart/brain function seems deeply counterintuitive: if the brain and heart are the sources of life, why is breathing the definitive indicator of life? 

One possible explanation is that respiration is not inherently significant, but merely serves as a reliable external indicator: because we lack the necessary tools to detect heart and brain activity, we use respiration as a litmus test.  This interpretation is not only suggested by Rabbi Feinstein’s language in the above passage (“…we have no indication of life other than nasal [activity]… since we cannot easily detect activity in the heart or abdomen and all the more so in the brain”), but also is explicitly endorsed by Hakham Zevi, in the teshuvah that we referred to in the previous two posts. (She’elot Ve’Teshuvot Hakham Zevi #77)  Recall that Hakham Zevi argues that a slaughtered chicken whose heart was not found should not be considered a tereifah, since the heart must have gone missing after it was killed.  His reasoning is simply that the heart is essential for life, so that had the heart gone missing beforehand, the chicken could not have been alive at the time of slaughter.  In explaining why the gemara in Yoma rules that death is determined by the absence of breathing rather than heartbeat, Hakham Zevi explains that breathing is always perceptible, whereas a weak heartbeat may not be.  Based on this approach, would we possess more advanced means of detecting brain and heart activity, respiratory activity would be irrelevant.

However, Rabbi Feinstein himself specifically rejects this understanding of the relationship between heart activity and respiration:

ואין צורך להסבר החכ”צ שפעמים א”א לשמוע דפיקת הלב מפני שהלב תחת החזה ומרוב חולשה א”א להכיר אם עודנו בחיים, וכוונתו מפני שהדפיקה היא נמוכה ביותר, דאף אם נימא שנפסק הדפיקה ממש עדיין הוא נותן כח חיות מעט להגוף דלכן הוא נושם בחוטמו עדיין. ומש”כ הרמב”ם דאם ינוח הלב כהרף עין ימות ויבטלו כל תנועותיו, אין כוונת הרמב”ם על הפסק דפיקה אלא על הפסק עבודתו ליתן חיות להאברים, שהדפיקה הוא רק סימן לעבודת הלב ואירע שעובד הלב עבודתו ולא ניכר סימן זה דדפיקה כשהלב הוא בחולשה, והפסק עבודתו לגמרי ניכר בפסיקת הנשימה מהחוטם.

ואולי מה שהוצרך החכ”צ לסברתו הוא מחמת שסובר דאם אך הלב לא הפסיק עבודתו היה ודאי נשמע הדפיקה, לכן כתב שכל זמן שנושם בחוטמו איכא ודאי דפיקה בלב אבל מאחר שעובד בחולשה הוי קול הדפיקה נמוך מאד עד שלא נשמע כלל מאחר שהוא תחת החזה, ואף שאין הכרח לזה אפשר שהוא כן.  וזהו כוונת החכ”צ…

And there’s no need to invoke Hakham Zevi’s explanation that sometimes it’s not possible to hear the heartbeat since the heart is beneath the chest and due to its weakness it’s not possible to tell if it is still alive—meaning that the heartbeat is very faint; for even if we assume that the heart had actually stopped beating, it would still be providing minimal life force to the body which is why the individual is still breathing.  And regarding that which Rambam wrote, that if the heart stops the individual will die instantly and all his movements will cease, he’s not referring to the cessation of the heartbeat but rather to the cessation of [the heart’s] function in providing life to the limbs, for the heartbeat is only an indication of the heart’s functioning, and when the heart is weak it may happen that it is performing its function without this indication being discernible, but the complete cessation of heart function is discernible in the cessation of breathing through the nose.

And perhaps what drove Hakham Zevi to his explanation is his assumption that unless the heart stopped functioning, the heartbeat would still be audible; therefore he wrote that as long as the individual breathes through his nose the heart is certainly still beating, but since the heart is weak, the sound of the heartbeat would be very faint to the point where it’s imperceptible since it’s beneath the chest; and even if this isn’t necessarily the case [that the heart would still be beating imperceptibly], it’s a possible that it is so.  That’s what Hakham Zevi meant…[4]

There is no denying that Rabbi Feinstein’s assumptions in this passage are a bit unsettling: he seems to say that the heart’s physiological function—providing life force to the body—is not dependent on its beating, an idea that modern medicine utterly rejects.  That having been said, we should note that this assumption is not integral to Rabbi Feinstein’s approach; he freely concedes that Hakham Zevi may be correct in assuming that the heart continues to beat as long as it functions.  Whether or not there is ever an actual (i.e., biological) divergence between heartbeat and heart function, Rabbi Feinstein insists on making a conceptual distinction between the two when it comes to determining death.  The aspect of cardiac function that is relevant to the determination of death is not the heartbeat per se but rather the heart’s ability to provide life force to the rest of the body, and respiration is the final manifestation of that life force.  Thus when we conclude from the gemara that absence of breathing is the definitive indicator of death, what we mean is that the heart’s inability to provide life force to the body is determined—not merely indicated—by its failure to support spontaneous respiration.

Rabbi Feinstein’s understanding of Hakham Zevi’s teshuvah stands in stark contrast with the approach taken by numerous opponents of brainstem death, who equate Hakham Zevi’s insistence that life depends on the heart with the notion that the heartbeat is a dispositive sign of life, even in the absence of spontaneous respiration.[5]  Indeed, Rabbi Feinstein explicitly rejects just such an interpretation, proposed to him by Rabbi Chaim Dov Ber Gulevsky (the questioner to whom this teshuvah is addressed):

ולא מובן לי היכן ראה כתר”ה מה שמסיק, נמצא שלהחכ”צ ישנו סימן אחד של חיות וזה הלב ולפ”ז אדם שהלב פועם דינו כחי ואדם שהלב נפסק דינו כמת אולם בלי נשימה הלב אינו פועל והוא מת תיכף, דאין זה כוונת החכ”צ אלא כדכתבתי שהחיות לכל האברים נותן הלב כדהביא מזוהר ומרמב”ם במו”נ, וגם זה שאיכא ענין הנשימה ע”י החוטם הוא מהלב, וכשפוסק הלב מלעבוד לגמרי נפסק תנועת כל האברים וגם הנשימה מהחוטם נפסק, אבל כל זמן שעובד הלב אף בחולשה גדולה באופן ששאר אברים לא מתנוענעים איכא עדיין חיות בנשימה דהחוטם שהוא אבר האחרון מלהפסיק…

And I don’t understand on what basis you concluded: “It emerges that for Hakham Zvi there is but one indication of life and that is the heart, so according to this an individual whose heart is beating is considered alive and an individual whose heart has stopped is considered dead, though without respiration the heart cannot function causing [the individual] to die immanently.”  For this isn’t the intention of Hakham Zvi, but rather as I wrote above that the heart provides life force to all the organs, as he cited from the Zohar and Rambam in Guide to the Perplexed.  And even nasal respiration is [enabled by] the heart, and when heart stops functioning completely all limbs stop moving, and breathing through the nose stops as well.  But as long as the heart is functioning—even with great weakness such that the rest of the limbs aren’t moving—life is still present in respiration, since the nose is the last organ to cease…

Based on Rabbi Gulevsky’s understanding of Hakham Zevi, absence of respiration functions as an indicator of death only because heart function will quickly cease without it.  Rabbi Feinstein counters by reversing the direction of causation: what’s important is not that absence of breathing causes the heart to stop beating, but rather that the absence of heart function invariably causes cessation of spontaneous respiration (along with all external bodily movement).  The difference between these two formulations is crucial.  If spontaneous respiration is significant only in as far as it sustains the heartbeat, then any alternate means of sustaining heart function—such as mechanical ventilation—would be just as effective at keeping the patient “alive”.  But according to Rabbi Feinstein’s explanation, spontaneous respiration is that which defines heart function: because respiration is necessarily the last physiological function to cease, it determines what it means for the heart to provide life force to the rest of the body.  Based on this, we might conclude that the absence of observable spontaneous respiration is a definitive indication that meaningful heart function has ceased. 

We will revisit this conclusion in our next post, as we analyze the significance of residual heart and brain activity in more detail.

[2] See Rabbi Moshe Dovid Tendler, “קביעת רגע המוות והשתלת אברים: ‘התזת ראש’ פיסיולוגית”, עמק הלכה (Jerusalem: Dr. Falk Schlesinger Institute of Medical-Halachic Research, 1989), p. 215; “Halakhic Death Means Brain Death”, Jewish Review (Jan.-Feb. 1990), p. 20. 

Dr. Abraham Steinberg (“קביעת רגע המוות והשתלת הלב”, אור המזרח 36:1 [1987], p. 61) suggests that Rabbi Feinstein’s objection to the use of neurological criteria to determine death while the patient is still breathing shows that he did not fully understand the nature of brainstem death, since one of the diagnostic requirements for brainstem death is the absence of spontaneous respiration.  But Rabbi Steinberg’s assessment is somewhat anachronistic, based on standards of establishing brainstem death that were not universally accepted in 1970, when this responsum was written.  Although the criteria issued by the ad hoc committee at Harvard Medical School in Aug. 1968 did include a stipulation of no spontaneous respiration, first-hand accounts of the first successful heart transplant at Groote Schuur hospital in Cape Town suggest that doctors there were concerned solely with lack of neurological responsiveness.  To wit, a 2006 account of the surgery based on the testimony of Marius Barnard (the brother of head surgeon Christiaan Barnard and one of only three witnesses to the excision of donor Denise Darvall’s heart) reveals that the surgical team debated whether or not to wait for the Darvall’s heart to stop beating of its own accord (they did not), but suggests that they were not similarly concerned by Darvall’s continued “labored breathing”; see Donald McRae, Every Second Counts: The Race to Transplant the First Human Heart (New York: G. P. Putnam’s Sons, 2006), pp. 191-2.  See also the account of Olivia Rose-Innes, daughter of Dr. Peter Rose-Innes, the neurosurgeon charged with diagnosing Darvall’s condition, who does not mention cessation of respiration as a necessary criterion for establishing brain death. (http://www.health24.com/medical/Condition_centres/777-792-812-1735,43227.asp)

[3] Contra. Rabbi J. David Bleich (“Of Cerebral, Respiratory and Cardiac Death”, Tradition 24:3 [1989], p. 60), who cites the first passage in which Rabbi Feinstein identifies both the heart and the brain as life-giving organs and then incongruously concludes that “[t]hose comments certainly reflect a clear recognition that the primary vital force in the human organism is the beating of the heart.”

[4] Incredibly, numerous authors ascribe to Rabbi Feinstein the first explanation we articulated above (that respiration is significant only as an indicator of an extant heartbeat), even though he explicitly rejects it in this passage.  See Dr. Abraham Sofer Abraham, ” קביעת זמן המוות: על הערות העורך להחלטת מועצת הרבנות הראשית לישראל”, אסיא 42-43 (1997), pp. 82-83; R. Bleich (ibid.); Joshua Kunin, “Brain Death: Revisiting the Rabbinic Opinions in Light of Current Medical Knowledge”, Tradition 38:4 (2004), p. 49; 2010 paper of the RCA Vaad Halacha (pp. 27, 29).  These authors draw their conclusions about Rabbi Feinstein’s position from the earlier portion of this teshuvah, ignoring this later passage in which Rabbi Feinstein’s critiques Hakham Zevi’s explanation.  (Dr. Abraham takes note of this critique of Hakham Zevi, but admits that he doesn’t understand Rabbi Feinstein’s point.)

[5] For instance, see Rabbi Eliezer Waldenberg, She’elot Ve’Teshuvot Tzitz Eliezer, vol. 9 #46; Rabbi Shmuel Wozner, אסיא 42-43 (1997), pp. 92-94.  Cf. Bleich, op. cit., p. 57; “Establishing Criteria of Death” Tradition 13:3 (1973), p. 96; “Survey of Recent Halakhic Periodical Literature,” Tradition 16:4 (1977), pp. 133, 137; “סימני מיתה”, הפרדס 51:4 (Jan. 1977), p. 16. 

This interpretation of Hakham Zevi’s position is so pervasive that even proponents of brain death don’t think to challenge it.  Rather, they question whether we should rely on Hakham Zevi’s psak given that he clearly relies on a medieval conception of heart function.  (For instance, see Steinberg,”קביעת רגע המוות והשתלת הלב [תשובות להשגות]“, אור המזרח 36:3-4 [1988], p. 285; Edward Reichman, “The Halakhic Definition of Death in Light of Medical History”, Torah U-Madda Journal 4 [1993], pp. 160-162.)  Yet there is a much more basic problem with applying Hakham Zevi’s ruling to the issue of determining the moment of death.  While Hakham Zevi insists that heart activity is necessary for life, he says almost nothing about whether it is sufficient for life.  In other words, the notion that heart activity is in-and-of itself a dispositive sign of life is irrelevant to his ruling on the kashrut of the chicken.

The only portion of the Hakham Zevi’s teshuvah that could be understood as taking a definitive stance on this issue is his reference to the idea that the heart “expires last, after all the other organs, close and distant from it, have expired.”  Admittedly this is not the portion of the teshuvah that is typically cited (it is, after all, a single line in an utterly voluminous teshuvah), nor does Rabbi Feinstein cite that reference.  Nonetheless, several other authors (e.g., Rabbi Aharon Soloveichik, “Death According to the Halacha”, Journal of Halacha and Contemporary Society 17 (1989), p. 43-44; Rabbi Bleich, Time of Death in Jewish Law [New York: Z. Berman Publishing Co., 1991], p. 174-175) do cite this reference, along with a similar reference in Rabbenu Bahya in his commentary on the phrase בכל לבבך in Deut. 6:5.

The first modern source to directly address how Halakhah determines the moment of death is the teshuvah of Rabbi Moshe Schreiber (the “Hatam Sofer”) on the question of whether a doctor who is a kohein may examine a deceased individual in order to issue a death certificate (She’elot Ve’Teshuvot Hatam Sofer, Yoreh Deah #338).  In the context of early 19^th-century Europe, this question was freighted with a half century of conflict over how to establish the moment of death.[2]  During the 18^th century, doctors began to question whether traditional means of establishing death were reliable, and popular pressure on this issue led some secular authorities to propose laws requiring that burial be postponed for two to three days, until the body began to decompose.  These were often specifically intended to curtail the Jewish practice of same-day burial.  In most cases, the Jewish community managed to avert these laws by agreeing to have deaths medically certified, so as to dispel any concern that the deceased might still be alive.  Nonetheless, the question of how to establish death remained a matter of controversy, not only between the Jewish community and secular authorities, but also between maskilim (modernizers) and traditionalists within the Jewish community.

The teshuvah in question was addressed to Rabbi Zevi Hirsch Chajes, a traditionalist posek who was nonetheless sympathetic to the perspective of the maskilim.  Normally a kohein is prohibited from coming into contact with a corpse, but Rabbi Chajes proposed a number of reasons to allow a kohein doctor to perform the official medical examination.  Among these was the argument that examining the individual before proceeding with the burial could be considered an act of pikuaḥ nefesh (saving a life), since there is a chance that he might be alive even after the traditional signs of death have been established.  Hatam Sofer, an outspoken opponent of religious reform, rejected any such concern.  He maintained that Halakhah defines a clear and utterly reliable standard of death, leaving no reason to relax halakhic standards by postponing burial or allowing a kohein to come in contact with a corpse.

Despite Hatam Sofer’s unequivocal rejection of Rabbi Chajes’ argument, someone trying to piece together his ruling from recent secondary literature on brain death could be forgiven for thinking that he had formulated two antithetical positions.  On the one hand, Rabbi Avraham Kahana Shapira, in his article explaining the Israeli Rabbinate’s 1986 ruling to allow the removal of vital organs from brain dead individuals,[3] opens with the following summary of Hatam Sofer’s position:

יסוד עיקרי בהלכה זו בנוגע לנקודה של קביעת זמן המוות הם הדברים הנמרצים שכתב החת”ם סופר בויכוח עם משכילים שרצו לדחות מצות קבורה לזמן מרובה. וכתב החת”ם סופר שבודאי נמסרה בזה הלכה למשה רבינו, אם מהלכה למשה מסיני אם בהסתמך על קרא “כל אשר נשמת רוח חיים באפו”, שהכל תלוי בנשימת הגוף, וכמבואר ביומא שבודקים בחוטמו. וכתב על זה דברים נמרצים, שכל רוחות שבעולם אם ימלאו חופניהם רוח לא יזיזונו ממקור[4] תורתנו הקדושה.

A fundamental principle on the issue of establishing the time of death is the forceful statement written by Hatam Sofer in his dispute with the maskilim, who wanted to significantly delay the mitzvah of burial.  Hatam Sofer wrote that we have certainly received a tradition regarding this matter directly from Moses—either as a halakhah le’Moshe mi’Sinai [an extratextual Sinaitic tradition] or by relying on the verse “All in whose nostrils was the breath of the spirit of life” [Gen. 7:22]—that everything depends on respiration, as explained in Yoma [85a] that we examine the nose [of a victim found in the rubble of a collapsed building to determine whether he is alive].  And regarding this he wrote that ‘if all the spirits in the world fill their hands with wind they will not move us from the wellspring [sic] of our holy Torah’. (p. 17)

According to Rabbi Shapira, Hatam Sofer holds that we determine the moment of death exclusively by cessation of breathing.  On the other hand, Dr. Avraham Steinberg, in his thorough survey of halakhic literature related to the determination of death,[5] presents Hatam Sofer’s position as follows:

החתם-סופר מסכם את עמדתו במילים אלו: “אבל כל שאחר שמוטל כאבן דומם ואין בו שום דפיקה, אם אח”כ בטל הנשימה אין לנו אלא דברי תורתנו הקדושה שהוא מת, ולא ילינו אותו, והמטמא לו אם הוא כהן לוקה אחר התראה”. לפנינו, אם כן, שלשה קריטריונים לקביעת רגע המוות : א) “מוטל כאבן דומם” – כלומר, חוסר רפלכסים, חוסר תנועתיות, תירדמת בלתי הפיכה, או במילים אחרות – הפסקת פעילות מערכת העצבים ; ב) “ואין בו שום דפיקה” – הפסקת פעילות הלב ומחזור הדם ; ג) “בטל הנשימה” – הפסקת המנגנון הרספירטורי.

Hatam Sofer summarizes his position with these words: “But as long as he lies like an inanimate stone and has no pulse, if afterward breathing ceases, we have only the words of our holy Torah [to rely on and determine] that he is dead, and they shouldn’t leave his body overnight, and one who is defiled by it—if he is a kohein, he is liable for lashes if he is forewarned.”  We have before us, then, three criteria for determining the moment of death: a) “he lies like an inanimate stone” — that is to say, absence of reflexes, absence of movement, an irreversible coma, or in other words — cessation of the nervous system; b) “and has no pulse” — cessation of heart function and circulation; c) “breathing ceases” — cessation of respiratory function. (p. 418)

Let us dispel right away any concerns of exaggeration or embellishment on the part of these authors: both of these citations are perfectly accurate, taken from different portions the aforementioned teshuvah.  The passage cited by Rabbi Shapira is Hatam Sofer’s initial definition of the standard of death (based on his understanding of the sugya in Yoma), while Dr. Steinberg cites a subsequent passage in which Hatam Sofer seems to offer a different standard.  It may seem remarkable that neither author felt a need to square the portion he cited with the passage that seems to contradict it, but in fact they are not alone: numerous other authors writing on this topic cite only one of these portions of the teshuvah.[6]  However, before we consider how contemporary authorities draw on Hatam Sofer’s teshuvah in the debate over brain death, we need to explain how Hatam Sofer himself incorporated two seemingly antithetical assertions in a single teshuvah.  How can both of these statements—one requiring only cessation of breathing, the other mandating absence of breathing, movement, and pulse—both reflect “the words of the Holy Torah”?

This question needs to be analyzed on a number of levels.  First, if Hatam Sofer initially states that the only indicator of life and death is respiration, what is his source for the criterion of pulse?  It’s clear that it is not the sugya in Yoma, since Hatam Sofer mentions neither pulse nor heart function in the context of that sugya.[7]  However, in his subsequent analysis, Hatam Sofer cites a passage from the Moreh Nevukhim (Guide to the Perplexed) in which Rambam seems to indicate that life can persist for some time even in the absence of respiration.  Rambam cites the way “some of the Andalusians” understand the illness that befell the son of the woman of Zarephath, the boy whom Elijah miraculously revived (I Kings 17): based on the language of the verse, “…and his illness grew worse until there was no breath left in him” (I Kings 17:17), the Andalusians explain that the boy had no discernible breathing but did not actually die, “as happens to people struck with apoplexy or with asphyxia deriving from the womb, so that it is not known if the one in question is dead or alive and the doubt remains a day or two.” [8]  Hatam Sofer elaborates on the Andalusians’ explanation in light of Ramban’s commentary on the phrase ויפג לבו (Gen. 45:25): Ramban explains that Jacob’s heartbeat (as well as his breathing) literally stopped when he heard that Joseph was alive.  Hatam Sofer explains that unlike Jacob, the son of the woman of Zarephath stopped breathing even as his heart continued to beat.[9]  It is at this point in the teshuvah that Hatam Sofer mentions the tripartite diagnosis of death that Dr. Steinberg cited.

A more fundamental question to ask about Hatam Sofer’s shift in position is: what prompted him to interpret the sources in this way, given that neither Rambam nor Ramban identify heart function as a vital sign independent from respiration?  Rabbi Shlomo Goren suggests that Hatam Sofer is simply trying to resolve a contradiction between the Rambam’s implication in Moreh Nevukhim, that life can persist in the absence of breathing, and his position in the Mishnah Torah (Hilkhot Shabbat 2:18, which Hatam Sofer cites earlier in the teshuvah), that absence of breathing alone determines death.  However, Rabbi Goren concedes that Hatam Sofer’s addition of heart function as a criterion for establishing death is still a significant innovation, since it does not feature in earlier halakhic codices.  It seems likely, then, that Hatam Sofer was also influenced by non-textual concerns, and that he may have been making a small concession to contemporary anxieties that traditional means for establishing death were insufficient.[10]

But the main point that we should make about the discrepancy between Hatam Sofer’s two statements is that within the historical context in which he was writing, the difference between them would be perceived as minimal.  This is evidenced most directly by the way his teshuvah is cited by other Rabbinic authorities who predate the contemporary debate over brain death.  For instance, when Rabbi Avraham Zevi Hirsch Eisenstadt excerpts this teshuvah (Pitḥei Teshuvah, Yoreh Deah 357:1), he cites only the section that mentions cessation of respiration.  Clearly Rabbi Eisenstadt did not regard the reference to pulse to be central to the meaning of the overall text, most likely because he saw little difference between defining death as cessation of breathing or as cessation of breathing and pulse.  Indeed, none of the 19^th- or early 20^th-centruy poskim who cite Hatam Sofer’s position—that Halakah defines a standard of death prior to the onset of decomposition—bother to specify what that standard is.[11]

Meaning is a function not only of context but of contrast.  Practically speaking, in the early 19^th century, requiring cessation of pulse as well as respiration would result in a difference of at most a few minutes in the estimated time of death.  Equally important is the fact that these two formulations—‘Death is determined by cessation of breathing’, and, ‘Death is determined by cessation of movement, pulse and breathing’—occupied the same ideological space within Hatam Sofer’s milieu; in the polemic against the attempt to delay burial, both effectively meant: ‘Death need not be determined by the onset of decomposition’.  Only in the context of contemporary medicine—where the question of whether to determine death by respiratory function alone or by respiratory and circulatory function has major practical and ideological ramifications—do these formulations become functionally oppositional.  The shift in context exposes a deep fault line within the text of the teshuvah.

This is not to say that the modern interpreter is immediately aware of the contradictory implications of the text.  Interpretation is necessarily a process of selection: any time we excerpt, paraphrase, or summarize a text—any time we present it in some mode other than its complete original form—we are effectively distinguishing the portions of the text we deem essential to its meaning from those we consider nonessential.  But this process is so reflexive, so unthinking, that we frequently fail to consider what alternative meanings might be constructed by emphasizing different portions of the very same text.  So to return to our original question—how is it that so many authors give an incomplete picture of the teshuvah, we might say that this is an understandable (if somewhat disconcerting) result of this process of interpretive selection: each author cites the passage that seems to him most relevant to the situation at hand.  Nor can we accuse them of construing something that is not in the text: as we’ve noted, Hatam Sofer really does say both things.

Still, we would prefer if these authors would at least mention the passage that seems to subvert their interpretation, if only for the sake of intellectual honesty.  More ambitiously, we would hope for them to somehow resolve the contradictory implications of the text, to explain how the passages that seem antithetical can actually be understood as reflecting a single, consistent ruling, and several authors attempt to do just that.  Some suggest that the tension within the tesuvah is simply overstated.  For example, in one of his articles on this topic, Rabbi J. David Bleich presents Hatam Sofer’s position as follows:

Chatam Sofer, Yoreh De’ah, no. 338, states that a patient may be pronounced dead only if three criteria are manifest: 1) the patient lies as an “inanimate stone”; 2) no pulse beat is discernible; and 3) respiration has ceased.  Chatam Sofer adds the forceful statement: “These are the three clinical symptoms of death which have been transmitted to us from the time that the nation of God became a holy people.  All the forces in the universe will not cause us to deviate from the position of our Holy Torah.”[12]

Rabbi Bleich contends that the passage cited by Rabbi Shapira (“…if all the spirits in the world fill their hands with wind…”) should actually be understood as a reference to the tripartite diagnosis cited by Dr. Steinberg. 

Unfortunately, Rabbi Bleich’s interpretation relies on a rather loose translation from the Hebrew.  The original text of the passage he quotes is: …ואפ”ה [=ואפילו הכי] כשפסקה נשמתו שוב אין מחללין שבת… שזהו שיעור המקובל בידינו מאז היתה עדת ה’ לגוי קדוש — “…and even so when the [individual’s] breathing stops, we no longer violate Shabbat ]on his behalf]… for this is the standard which has been transmitted to us from the time that the nation of God became a holy people”.  It is clear that in this passage, Hatam Sofer is referring to a standard that defines death by the single symptom of cessation of breathing: the phrase שזהו שיעור (“for this is the standard”) appears immediately after Hatam Sofer’s reference to cessation of breathing, whereas his first reference to pulse appears only at the end of the following paragraph.  There is certainly no indication in the Hebrew of “three clinical symptoms”.[13]  Thus Rabbi Bleich’s attempted resolution only underscores the fact these passages do not seem to present a unified position.[14]

Rabbi Eliezer Waldenberg (She’elot Ve’Teshuvot Tzitz Eliezer, vol. 9 #46) proposes what appears to be a more substantive resolution of the tension between the two passages:

הרי לנו הלכה פסוקה ובהירה בתורת רבנו משה סופר ז”ל כי לבני ישראל קבלה מקובלת על כך בשיעור קביעת המות מאז נהיה לגוי ונתנה תורה למשה מסיני. והוא שהכל תלוי בנשימת האף, ועל כן כל רוחות שבעולם לא יוכלו להזיזנו מזה. ואמנם גם בהשמעת נימה שזהו הכל כשכבר מוטל כאבן דומם ואין בו שום דפיקה. וכיוון בזה לאפוקי כשרואים עוד איזה דפיקה או תנועה אחרת שאזי יש לחוש שאולי הוא יוצא מן הכלל.

Behold we have a clear and established law in the writing of Rabbi Moshe Sofer of blessed memory that the Jewish People have a received tradition regarding the standard of death from the moment they became a nation and received the Torah at Sinai.  And that is that everything depends on the breath of the nostrils, and thus all the winds in the world cannot move us from this [position].  However, even in declaring that this is all, [he adds the words] “when [the individual] lies like an inanimate stone and has no pulse…”  With this he intended to exclude cases where we perceive some pulse or other movement, since then we need to be concerned that he is an exception.

Rabbi Waldenberg insists that although cessation of breathing is the main indicator of death, it is decisive only if the other two conditions mentioned by Hatam Sofer are fulfilled; otherwise we are concerned that this may be one of the exceptional cases of individuals who survive for extended periods without perceptible breathing.  This last point is a reference to another source cited by Hatam Sofer, the baraitha in Semaḥot 8:1:

יוצאים לבית הקברות ופוקדים על המתים עד ג’ ימים ואין בו משום דרכי האמורי. מעשה שפקדו א’ וחי כ”ה שנים ואח”כ מת. אחר – והוליד ה’ בנים ואח”כ מת.

One may go out to the cemetery to inspect the deceased for three days [following the burial], and this is not considered [emulating] the ways of the Amorites.  There was a case where they checked on the deceased [and discovered that he was alive], and he lived for another twenty-five years and then died.  [It also happened to] another individual, who subsequently fathered five children and then died.

This is one of the sources cited by maskilim (originally by Moses Mendelssohn) to show that the Halakhah recognizes that traditional standards of death are not always reliable.  Hatam Sofer dismisses these episodes as “the kind of remote event that happens once in a thousand years”, and insists that such occurrences are no reason to delay burial.  Nonetheless, Rabbi Waldenberg detects a note of uncertainty in Hatam Sofer’s voice, and suggests that this accounts for his addition of the criteria of movement and pulse.[15]  Based on this, Rabbi Waldenberg (ibid., vol. 17 #66) interprets Hatam Sofer to mean that brain stem death is not an acceptable halakhic standard, since the patient’s heart will continue to beat as long as he is kept on a ventilator and other life support apparati.

Unlike Rabbi Bleich, Rabbi Waldenberg acknowledges the straightforward meaning of each of the conflicting passages.  Yet in his final assessment, he, too, eviscerates the meaning of the passage cited by Rabbi Shapira: when Hatam Sofer identifies cessation of breathing as the definitive indicator of death, according to Rabbi Waldenberg he is really only referring to one of two required indicators.  This does not, of course, render his interpretation ‘incorrect’: as we noted above, interpretation is all about choosing which passages should be weighted most heavily in the overall meaning of the text.  But in assessing the relative strength of Rabbi Waldenberg’s approach, we should at least be clear about the textual sacrifices it demands.  Like those authors who cite only Hatam Sofer’s tripartite definition of death, Rabbi Waldenberg essentially renders Hatam Sofer’s initial definition of death irrelevant to the meaning of the overall teshuvah.

A variation on Rabbi Waldenberg’s interpretation is offered by Dr. Steinberg (in a later article[16] than the one cited above, in which he reverses his halakhic opinion) in defending the Israeli Rabbinate’s ruling to accept brain stem death.  Like Rabbi Waldenberg, Dr. Steinberg accepts the straightforward meaning of each passage, and concludes that both cessation of respiration and pulse are needed to establish death, but he does a better job at integrating both into a single unified ruling:

וי”ל שהסיבה להוספת ענין הדופק ע”י החת”ס איננה הוספת קריטריון מהותי (שהרי הוא איננו מוזכר כלל הש”ס ובפוסקים) אלא הוספת תנאי המבטיח שהפסקת הנשימה היא סופית ובלתי הפיכה.

We may say that Hatam Sofer’s reason for adding the issue of pulse is not to add another essential criterion (since it is not mentioned at all in the Talmud or later Rabbinic authorities) but rather the addition of a condition to confirm that cessation of breathing is final and irreversible. (p. 60)

According to Dr. Steinberg, Hatam Sofer’s initial definition of death establishes that cessation of respiration is the primary indicator of death, and the additional criteria found in his subsequent definition are intended to be subsidiary to it.  Cessation of pulse (and of movement) is not independently significant; its function is only to establish that the cessation of breathing is irreversible.[17] 

Yet even Dr. Steinberg’s interpretation requires interpretive sacrifices, notably the literal meaning of the term “pulse”.  He has effectively translated the term “pulse” as “a physiological sign that indicates that cessation of breathing is irreversible”, a definition that, within a modern medical context, would include the cessation of brain stem function,[18] but would not include an actual pulse in instances where it did not indicate the possibility of restoring spontaneous respiration.  Of course, Hatam Sofer himself never articulates this rationale for requiring cessation of pulse; Dr. Steinberg’s explanation is purely speculative.  However, as Dr. Steinberg notes, since heart function as an independent sign of life is not attested in earlier halakhic sources (or at least in any that Hatam Sofer himself cites), this explanation may be the best way to come to terms with the fact Hatam Sofer includes it as a criterion for establishing death.

We will flesh out the implications of Dr. Steinberg’s position in the next post when we analyze the view of Rabbi Moshe Feinstein.  However, before we proceed to Rabbi Feinstein’s own position, we should consider how he makes use of Hatam Sofer’s teshuvah.  In the earlier of his two main teshuvot on this topic (She’elot Ve’Teshuvot Iggerot Moshe, Yoreh Deah vol. 3 #146), Rabbi Feinstein cites Hatam Sofer in considering the significance of residual cardiac activity on the determination of death.  It is telling, however, that instead of referring to Hatam Sofer’s own discussion of heart function, Rabbi Feinstein refers only to his analysis of the baraitha in Semaḥot.  In his later teshuvah (ibid. #132), Rabbi Feinstein doesn’t explicitly cite any one portion of Hatam Sofer’s teshuvah; rather, he refers generally to the teshuvah at the conclusion of a paragraph in which he states that for most patients, death may be established by repeatedly confirming of the absence of respiration.  Nowhere does Rabbi Feinstein refer to Hatam Sofer’s statement that cessation of heart function is necessary to establish death.  This is not to say that the role of heart function in Rabbi Feinstein’s standard of death is unambiguous.  But at least in the way Rabbi Feinstein determines which portions of Hatam Sofer’s teshuvah are the essential to its meaning, it is clear that he does not include the passage which refers to the cessation of movement and pulse.

[2] For the historical background of this conflict, as well as a comprehensive analysis of the debate between Hatam Sofer and Rabbi Chajes, see chapter 7 of Moshe Samet, החדש אסור מן התורה: פרקים בתולדות האורתודוקסיה (Jerusalem: Dinur Center for Research in Jewish History; Carmel, 2005); and chapter 2 of Michael E. Panitz, Modernity and Mortality: The Transformation of Central European Jewish Responses to Death, 1750-1850,  (Ph.D. dissertation, Jewish Theological Seminary of America, 1989).              

[3] “קביעת מוות מוחי עפ”י ההלכה”, אסיא 53-54 (1994), pp. 17-20.

[4] The standard text of Hatam Sofer’s teshuvah reads ממקום (“from the place of”).

[5] “קביעת רגע המות – חלק ב’ : היבטים הלכתיים”, אסיא, vol. 3 (1982), pp. 404-423.

[6] For example, see Rabbi Aharon Soloveichik, “Death According to the Halacha”, Journal of Halacha and Contemporary Society 17 (1989), p. 42; Yitzchok A. Breitowitz, “The Brain Death Controversy in Jewish Law” (avaiable at http://www.jlaw.com/Articles/brain.html).  The educational paper recently issued by the RCA Vaad Halacha also contains several incomplete citations of Hatam Sofer (pp. 30, 44, 70), though elsewhere (e.g., pp. 69, 83-4) it address the tension between these two passages.  

[7] In his collection of essays, Time of Death in Jewish Law, Rabbi J. David Bleich asserts that Hatam Sofer’s position is directly derived from Rashi’s commentary on Yoma 85a (“Hatam Sofer clearly understood Rashi as accepting the discernible beating of the heart as an absolute indicator of life”, p. 170).  In an earlier article, Rabbi Bleich similarly states that “it is certain that the source of Hatam Sofer’s position is Rashi’s elucidation of [Yoma 85a]” (“Survey of Recent Halakhic Periodical Literature,” Tradition 22:2 [1986], p. 79), though only with regard to Hatam Sofer’s requirement of the absence of bodily movement, not the absence of pulse (cf. “בענין מות מוחי וקביעת זמן המות בהלכה”, אור המזרח 36:1 [1987], p. 80).  Elsewhere in his numerous articles on this topic, Rabbi Bleich is more circumspect about the link between Rashi’s commentary and Hatam Sofer’s position, stating, for instance, that Hatam Sofer’s requirement of the absence of a pulse “is readily deducible from the comments of Rashi, Yoma 85a…” (“Survey of Recent Halakhic Periodical Literature,” Tradition 16:4 [1977], p.136, emphasis mine), but stopping short of saying that Hatam Sofer actually made this deduction.  Frequently Rabbi Bleich only intimates a connection between Hatam Sofer’s reference to pulse and the sugya in Yoma (e.g., “[Hatam Sofer’s] definition of death is compatible with the previously cited view supported by Yoma 85a that death is to be identified with absence of respiration coupled with prior cessation of cardiac activity” [“Establishing Criteria of Death” Tradition 13:3 (1973), p. 103, emphasis mine]).

Absent from these analyses is the recognition that Hatam Sofer never mentions Rashi’s commentary on Yoma (as we noted in the previous post), nor does he ever cite the portion of the sugya in Yoma that could be construed as referring to heart function (i.e., the opinion that we examine the victim’s body עד לבו [”until the chest”] to determine if he is alive).  In the previous post, we mentioned that Hakham Zevi does interpret Rashi’s commentary in Yoma as underscoring the importance of heart function.  However, Hatam Sofer never cites that well-known teshuvah of Hakham Zevi, even when referring to the use of pulse as a vital sign.

[8] The Guide to the Perplexed, vol. 1, trans. Shlomo Pines (Chicago and London: University of Chicago Press, 1963), p. 92.

[9] Hatam Sofer contrasts the boy’s condition more directly with the Biblical case of Nabal, Abigail’s first husband, of whom the text states: וימת לבו בקרבו והוא היה לאבן—“and his heart died within him and he became like a stone” (I Sam. 25:37).  Hatam Sofer explains that Nabal’s heartbeat stopped but he continued to breathe.

[10] This proposal is convincingly made by Eytan Shtull-Leber, “Rethinking the Brain Death Controversy: A History of Scientific Advancement and the Redefinition of Death in Jewish Law” (pp. 52-55), available at http://deepblue.lib.umich.edu/bitstream/2027.42/77671/1/eytansht.pdf.  In a similar vein, Rabbi Shapira (op. cit.)—while not directly addressing Hatam Sofer’s own mention of pulse—states that “according to Hatam Sofer’s words that Biblically, the determining factor is ‘the breath of life in his nostrils’… any reference to heartbeat [as an indicator of life] in the Talmud and Rishonim is only Rabbinic in nature”. 

[11] For instance, see R. Shalom Moshe Gagin, Yismaḥ Lev, Yoreh Deah #9; R. Yosef Sha’ul Nathanson, Divrei Sha’ul, Yoreh Deah 394:3; R. Shalom Mordechai Schwadron, She’elot Ve’Teshuvot Maharsham vol. 6, #124.  The last of these, in which the Maharsham addresses a case where members of the Hevra Kadisha were concerned that they had not conclusively established an individual’s death in their haste to bury him before Shabbat, briefly refers to checking the pulse of the deceased.  However, the Maharsham’s primary concern stems from the Hevra Kadisha’s report that the deceased emitted some sort of sound during the purification process, not from the claim of one member that he felt a pulse under the deceased’s knee.

[12] Op cit. (1977), p. 135.  Although elsewhere Rabbi Bleich presents Hatam Sofer’s position differently, this summary of Hatam Sofer’s position appears virtually unchanged in the repeated reprintings of this article: “Current Responsa, Decisions of Bate Din and Rabbinical Literature”, Jewish Law Annual 3 (1980), p. 121; “Neurological Criteria of Death and Time of Death Statutes”, Time of Death in Jewish Law (New York: Z. Berman Publishing Co., 1991), pp. 56-57.

[13] This insertion of the word “three” strikes me as an unwarranted editorial emendation. 

[14] Elsewhere (“סימני מיתה”, הפרדס 51:4 [1977], pp. 15-16), Rabbi Bleich explains that Hatam Sofer’s statement defining death by cessation of breathing alone is inconclusive, since he himself is unsure whether the inference from the verse “All in whose nostrils was the spirit of the breath of life” is a full-fledged derashah (inference with the force of Biblical law).

[15] Rabbi Waldenberg also notes that this interpretation of Hatam Sofer’s position dovetails with a teshuvah of the Maharsham (see above, n. 11), in which he explicitly states that other signs of life would undermine cessation of breathing as an indication that death had occurred. 

[16] “קביעת רגע המוות והשתלת הלב”, אור המזרח 36:1 (1987), pp. 48-65.

[17] Dr. Steinberg also suggests that Hatam Sofer’s tripartite standard refers to an instance of death in which cessation of movement and heartbeat precede cessation of respiration.  (He infers this from Hatam Sofer’s wording: “But as long as he lies like an inanimate stone and has no pulse, if afterward breathing ceases…”)  However, in a non-standard case where cessation of breathing preceded cessation of heart function (such as a brain stem dead patient whose heart continues to beat because he is artificially ventilated), Hatam Sofer’s requirement of cessation of heart function would not apply.  This essentially renders Hatam Sofer’s tripartite definition of death irrelevant to the meaning of the teshuvah: if cessation of pulse is significant only when it precedes cessation of respiration, then functionally cessation of respiration is the only necessary indicator of death.

[18] As Dr. Steinberg writes: “And according to this, in our time we can replace the indicator of pulse with the indicator of brain stem function and achieve the same halakhic goal that Hatam Sofer defined, namely final and irreversible absence of respiration”. (ibid.)  In a follow-up article (“קביעת רגש המוות והשתלת הלב”, אור המזרח 36:3-4 [1988], p. 286), Dr. Steinberg notes that this does not mean that cessation of brain stem function has completely supplanted cessation of heart function, since even medical practitioners today typically establish death based on cessation of breathing only in conjunction with cessation of pulse.  Thus the literal meaning of the Hatam Sofer’s teshuvah is still relevant in most cases.  Only in a case where the patient is artificially ventilated would the heartbeat not be a reliable indicator of whether independent respiration can be restored.

To the layperson, it may seem frustrating that the rabbinate cannot reach a consensus about such a basic issue as when life ends, but it’s only appropriate that a matter of this gravity be subject to a prolonged and intense evaluation.  Witness how even within the medical community, a steady stream of new data about brain death has forced doctors to revise clinical procedures, and in some cases even question long-accepted standards.  What is unfortunate about the halakhic debate is the way it has acquired a rather polemical tone: even when disputants’ intent is le’sheim shamayim (for the Sake of Heaven), the impulse to promote their position can lead them to make exaggerated claims or neglect to address contrary evidence.  One wishes for an assessment that acknowledged the genuine ambiguity inherent in some of the sources, or conceded that regardless of where one draws the line between life and death, there will always be some cases that defy simple classification.

When I began preparing to teach my first course on Jewish medical ethics, I was inclined to believe that there was enough uncertainty on the issue of brain death to render it halakhically unacceptable.  My subsequent research gradually convinced me that one could make a compelling case for a halakhic standard of brain stem death.  First and foremost, then, the goal of this series of posts is to articulate a response to the RCA paper, which comes down squarely against that view.  

But I also hope to forward the halakhic discussion of brain death on two other fronts.  The first is simply to promote a more methodologically conscious style of analysis.  The polemical tenor of the debate has often led to sources being cited as unequivocal support for one side or the other without a full accounting of how those sources are being understood.  We need to develop a more heightened awareness of the hermeneutic process—an understanding that texts do not simply ‘read themselves’, that sources and data invariably present multiple interpretive possibilities—and we need to be both more self-conscious and more transparent about the reasons we reject some interpretations and accept others.  There is, of course, nothing terribly innovative about such an approach: to read a well-crafted responsum is to see the painstaking care with which a posek weighs a number of potential readings of a particular passage before arriving at a final, authoritative interpretation.  But without the weight of a posek’s mantle on one’s shoulders, the self-conscious mode of analysis I have described leads one to view meaning in terms of greater and lesser possibilities rather than firm conclusions.  One learns to accept the fact that no one interpretation can lay an exclusive claim to truth, and that the best one can do is to build a case for one’s analysis that others will find convincing.

Second, the early stages of any halakhic debate are marked by a tendency to cast a wide net for relevant sources.  This is particularly true regarding halakhic questions that stem from modern technology, where traditional sources can be brought to bear on the issue only indirectly.  By now the debate over brain death has moved past this initial period of development.  The basic arguments on both sides have crystallized; new studies only attest to the fact that we have reached the point of diminishing returns.  To wit, the RCA paper is the first major report on this issue to emerge in several years, and while it incorporates some recent medical data, most of the halakhic analysis it offers has already been published elsewhere, most of it well over ten years ago.[2]  At this stage, we should be able to distinguish those sources and issues that are truly pivotal from those that—though potentially relevant—end up creating more questions than they resolve.  I hope through this series of posts to narrow the focus of the debate, so that even if the issue remains unresolved (and it would be naïve to assume otherwise), we can agree at least what exactly it is that we disagree about.

There is, of course, already an extensive secondary halakhic literature on brain death, so that much of the material I will present is based on what others have written.  However, in an effort both to keep these posts accessible to a wide audience and to avoid the kind of polemical tone I referred to above, I will largely avoid direct references to this literature in the body of the text.  The reader who wishes to research this topic in greater depth is directed to the footnotes, where I will refer to articles by some of the major proponents of both pro- and anti-brain death positions. 

         I. The Talmudic Passagein Yoma (85a) and Rashi’s Commentary

Virtually all halakhic authorities concur that this is the sugya (Talmudic passage) most relevant to the question of how death is defined in Halakhah.[3]  The mishnah addresses a case in which people may be trapped beneath the rubble of a fallen building on Shabbat, and rules that we continue digging as long as there is any chance of finding a live victim.  The gemara addresses the issue of assessing whether a victim is alive once he is found.  The text from the standard Vilna edition reads as follows:

תנו רבנן: עד היכן הוא בודק? עד חוטמו, ויש אומרים: עד לבו…

נימא הני תנאי כי הני תנאי, דתניא: מהיכן הולד נוצר – מראשו, שנאמר “ממעי אמי אתה גוזי” ואומר “גזי נזרך והשליכי”; אבא שאול אומר: מטיבורו, ומשלח שרשיו אילך ואילך. אפילו תימא אבא שאול: עד כאן לא קא אמר אבא שאול התם אלא לענין יצירה, דכל מידי ממציעתיה מיתצר, אבל לענין פקוח נפש – אפילו אבא שאול מודי דעקר חיותא באפיה הוא, דכתיב “כל אשר נשמת רוח חיים באפיו”.

אמר רב פפא: מחלוקת ממטה למעלה, אבל ממעלה למטה, כיון דבדק ליה עד חוטמו – שוב אינו צריך, דכתיב כל “אשר נשמת רוח חיים באפיו”.

Our Rabbis taught: How far does one examine? Until [one reaches] his nose. Some say: Until his heart…

Let us say that these tannaim dispute in the same way as the following tannaim, for it was taught: From where is the embryo formed? From its head, as it is said, “In the womb of my mother, You were my support [gozi]” [Psalms 71:6], and it is also says: “Shear [gozi] your locks and cast them away” [Jeremiah 7:29].  Abba Shaul says: From the navel, and it sends out its limbs into every direction.  You may even say that [the first view is in agreement with] Abba Shaul, for Abba Shaul holds his view only with regard to the formation [of the fetus], because everything is formed from its middle, but regarding the saving of life even Abba Shaul would agree that the essential life force [manifests itself] through the nostrils, as it is written, “All in whose nostrils was the spirit of the breath of life” [Genesis 7:22].

Rav Papa said: The dispute is only [if the victim is uncovered] from below upwards, but if from above downwards, since he checked up to the nostrils, one need not check any further, as it is said: “All in whose nostrils was the spirit of the breath of life”.

In the context of the contemporary debate whether death is determined by cessation of respiration or heart function, it seems natural to assume that the initial debate in the gemara is relating to this very issue.  The opinion that one must uncover the victim עד לבו (“until his heart”) holds that one must check to see if his heart is still beating, while the opinion that states that one must uncover him only עד חוטמו (“until his nose”) believes that one must check to see if he’s breathing.  On closer inspection, however, this interpretation does not stand for several reasons.

First, whereas the phrase עד חוטמו can be taken to mean that we check the nose directly, the phrase עד לבו cannot be reasonably be taken to mean that we check the heart organ directly; it‘s obviously referring to an external examination of the chest area above the heart.  A more precise translation, then, would translate the term לבו as idiomatic: we uncover “until his chest” rather than “until his heart”. 

However, once we acknowledge that the term לבו cannot be taken completely literally, the purpose of uncovering to the chest becomes less clear: we might be checking either for the heartbeat or for the rise and fall of the chest during respiration.  One might reasonably argue that the choice of the term לבו indicates not only the extent of the uncovering the victim but also its purpose—we uncover the victim until the ‘heart area’ in order to check for a heartbeat.  However, a survey of instances of the term לבו in Tannaitic sources shows that in virtually every other context in which it refers to a part of the body (as opposed to a state of mind), it cannot plausibly be explained as having such a dual connotation: לבו is always used idiomatically to refer simply to the external chest area, with no connection to the heart organ that lies beneath.  Hence the gemara in Moed Katan (26b) cites a beraitha as to whether one in mourning for a parent must rend his clothes עד טיבורו—“until the navel”—or only עד לבו—“until the chest”.  In a similar vein, the gemara in Berakhot (24b-25a) cites the following beraitha regarding the degree to which one must be dressed in order to pray: היתה טליתו של בגד ושל עור ושל שק חגורה על מתניו – מותר לקרות קריאת שמע, אבל לתפלה – עד שיכסה את לבו (“If his garment, whether of cloth or of leather or of sackcloth, is girded round his waist, he may recite the Shema, but he may not say the Amidah until he covers his chest”).  In the mishnah in Sanhedrin 6:4, the phrase נהפך על לבו means simply “if he turned face down [i.e., on his chest]”.  The mishnah in Eruvin 5:4 uses the phrase כנגד לבו to mean “at chest height”.  So unless internal evidence from this sugya suggests otherwise, there is no reason to assume that the position that requires checking עד לבו in concerned with cardiac activity per se.[4]  It’s equally likely that this opinion requires examining the chest as a means of assessing respiratory activity.

Second, if we assume that the debate as to where to uncover the victim reflects a fundamental disagreement over which biological function is the definitive indication of life, we would logically assume that both opinions would apply across the board, regardless of how the victim is found.  However, R. Papa maintains that the debate refers only to a case in which the victim is uncovered in a such a way the rescuers reach the torso before the head; if the head is uncovered first, all agree that checking the nose is sufficient.  According to this interpretation (which by all accounts is the authoritative conclusion of the sugya), the opinion that states that we uncover the victim עד לבו actually holds that examining either the nose or the chest is sufficient, while the opinion that states that we uncover him עד חוטמו always requires that we examine the nose.  Thus if we insist that the purpose of examining the victim’s chest is to listen for a heartbeat, it would emerge that one opinion holds that death can be determined either by lack of respiratory function or by lack of cardiac function, while the other opinion relies only on respiratory function.  While this interpretation is certainly possible, it seems more plausible to say that both opinions regard respiratory function as the definitive indicator of life, and disagree only as to whether lack of movement at the chest is a reliable indicator that the victim has stopped breathing or whether one must also verify that there is no nasal airflow.

Lastly, there is the issue of multiple variants in the text of the sugya.  In contrast to the Vilna text cited above, which follows Rashi’s version, most of the medieval commentators cite a variant which has the words עד טיבורו (“until his navel”) in place of עד לבו, a variant that is also found in the parallel sugya in the Yerushalmi (Yoma 8:5).[5]  This text obviously brings the language of the original debate into closer harmony with the language of the debate regarding fetal development to which the gemara compares it, but it also removes any reference to the heart from the sugya.  Since there cannot be any clinical significance to the navel itself, we are left to our own devices to assess the most likely purpose of examining the abdomen.  The simplest explanation seems to be that one is checking for the movement of the diaphragm, both because this is the most obvious movement at the abdomen,[6] and because it avoids creating a fundamental debate about which biological function serves as the indicator of life.  It is certainly possible that those who adopt this alternate text have a fundamentally different conception of the debate than does Rashi.  But given that the term לבו itself doesn’t necessarily refer to the heart organ, there seems to be no reason to assume such a difference of opinion.[7]

In sum, from the perspective of peshat in the gemara, there is no reason to assume that heart function is a factor in determining whether such a victim is alive or dead.[8]  Indeed, a close analysis of arguments put forth by opponents of the brain death standard shows that when they cite this sugya as support, they invariably point not to the text of the gemara but rather to Rashi’s commentary thereon.[9] 

Rashi explains the final stage of the sugya as follows:

הכי גרסינן: “אמר רב פפא מחלוקת מלמטה למעלה”: מחלוקת דהנך תנאי, דמר אמר: עד לבו, ומר אמר: עד חוטמו, מלמטה למעלה שמוצאו דרך מרגלותיו תחלה, ובודק והולך כלפי ראשו, דמר אמר: בלבו יש להבחין, אם יש בו חיות, שנשמתו דופקת שם, ומר אמר: עד חוטמו דזימנין דאין חיות ניכר בלבו, וניכר בחוטמו.

This is how the text should read: “The dispute is only [if the victim is uncovered] from below upwards”: The dispute between these tannaim—in which one says [that we examine] “until his heart”, and the other says “until his nose”—[applies only if the victim is uncovered] from below upwards, that they find his feet first and continue examining in the direction of the head.  For one says: in his heart one can discern if there is life, since his neshamah beats there; and the other says: [we examine] until his heart, for sometimes life is not discernible at the heart, but is discernible at the nose.

Rashi explains that both positions recognize that heart activity could potentially serve as an indicator of life, and differ only as to whether examination of the nose is more reliable, such that examination of the heart alone would not suffice.  This suggests that Rashi recognizes cardiac activity as a definitive indicator of life, and the only reason for requiring examination of the nose is that respiration is more easily detected than the heartbeat.  According to this line of reasoning, were there to be a situation in which we knew the heart was beating, absence of respiration at the nose (or, presumably, any other physiological symptom) would be insufficient to declare the victim dead.[10]

Given our conclusion above, that within the gemara the term עד לבו means simply “until the chest”, what would cause us to explain he term בלבו in Rashi as meaning ‘within the heart organ’?  It seems to me that three factors come into play:

1)      Rashi’s use of term לבו is less obviously idiomatic than the gemara’s.  Whereas in the gemara the primary meaning of לבו must be the external heart area, i.e. the chest, one can legitimately explain that Rashi is referring to signs of life that are found within the actual heart organ.  This explanation is obviously not decisive—one could still translate בלבו as meaning “within the chest” and explain that Rashi, too, is referring to respiration rather than heartbeat.  But the shift in context creates enough ambiguity to make either interpretation plausible.

2)      The phrase שנשמתו דופקת שם can be explained to refer to the heartbeat.  This, too, is not a decisive interpretation: it depends on translating the term נשמתו as “soul” (i.e., a generic reference to ‘life force’) rather than “respiration” (i.e., נשמה=נשימה).  Similarly, the term דופק may suggest the rhythmic beating of the heart (in line with its usage in Modern Hebrew), though it might also be taken to refer to the regular rise and fall of the chest.      

3)      Our understanding of Rashi is invariably influenced by the history of its interpretation in later sources.  As it would happen, Rashi’s commentary plays a prominent role in a famous responsum of Rabbi Zevi Ashkenazi (She’elot Ve’Teshuvot Hakham Zevi #77) regarding the importance of the heart.  The responsum addresses a case where the heart of a slaughtered chicken could not be located, the question being whether it was possible that the heart was excised before the chicken was slaughtered such that it should be considered non-kosher (as a safiek tereifah).  The Hakham Zevi dismissed the notion that the chicken could have survived without a heart—meaning that the heart must have gone missing after it was slaughtered—and cites this passage from Rashi to demonstrate “that the seat of the soul is the heart” (שהנשמה משכנה בלב).

An objection that has been raised to this interpretation stems from the fact that Rashi’s understanding of heart function was significantly different than the function ascribed to it by modern medicine.  Based on the regnant medical theories of his time, Rashi assumed that the purpose of the heart was to process the air that was drawn into the body.  Thus when Rashi refers to heart function as an indicator of life, he is not referring to cardiac function as we understand it—the force behind the circulatory system—but rather to a process associated with breathing.  Hence Rashi’s statement that heart function is an indicator of life merely affirms the gemara’s conclusion that we determine whether the victim is alive or dead based on the presence of absence of respiration.

This objection has been articulated most comprehensively by Rabbi Dr. Edward Reichman,[11] a leading scholar of the history of medical Halakhah, and his research leaves little doubt that the prevailing medieval conception of the human body provides an accurate context in which to understand Rashi’s position.  Comments of Rashi’s from elsewhere in the Talmud conclusively demonstrate that he shared most of the medical assumptions of his time regarding the structure of the body and the functioning of its organs.  The same can be said of many other medieval and early modern (pre-18^th-century) rabbinic authorities, including the Hakham Zevi.

But knowledge of medieval theories of physiology can only take us so far in understanding Rashi’s position.  Consider the difference between Rashi’s commentary and a medieval medical textbook.  The latter has effectively been confined to the dustbin of history, of interest only to historians of science, having no impact on contemporary medical practice.  Rashi’s commentary, on the other hand, retains its full normative force as an integral part of the halakhic system.  This is a key difference between the dynamics of science and of law.  The progressive mandate of science renders scientific texts obsolete once they are no longer useful in describing the workings of nature.  Law, on the other hand, functions on the basis of a canon of binding prescriptive texts, which often remain in force far beyond the conceptual milieu in which they are written.  So in order to assess the meaning of Rashi’s statement, we need to understand not just what his words meant in their original historical context but also what they should be taken to mean in an entirely different context.  This is not solely a matter of history of medicine, but also a matter of hermeneutics: how should we translate Rashi’s words into the language of modern medicine?

For translation is essentially what proponents of the brain death standard are doing when they state that for Rashi the heart is really a respiratory organ.  They reason as follows: Were Rashi writing in a modern medical framework, he could not have used the term “heart” to refer to all the functions that it referred to in medieval medical context, such as the intake of air into the body; therefore we should translate Rashi’s reference to the heart using a term that conveys the most of what Rashi means when he refers to the “heart”, a term like “respiratory organ”.  While this translation is certainly plausible, it rests on a number of hermeneutic assumptions that can be called into question.  It assumes, for instance, that terms for bodily organs should be interpreted based solely on their function, rather than on their physical identity (the organ that Rashi would have identified as a “heart” is still what we refer to as a “heart”).  Moreover, it focuses on only one aspect of what medieval doctors believed the heart to do.  Consider the following passage from one of the Rambam’s medical treatises that Dr. Reichman himself cites (p. 159):

I have prefaced [my remarks] with this introduction in order to stimulate you to critically appraise a statement of the great sage Galen.  You already know that his opinion is that there are three major organs, the heart, the brain, and the liver, and that not one of these can receive its power from another organ under any circumstances.  The opinion of Aristotle and his followers is, as you know, that there is a single main organ, namely, the heart, and the heart sends powers to each of the other organs and, with this power, the other organs perform their specific functions.  Therefore, according to the view of Aristotle, the heart sends powers to the brain and with this power the brain performs its function, and it in turn gives sensation and movement to other organs.  So, too, the powers of imagination, thought, and memory are powers that are brought into existence in the brain through the principle that the brain receives from the heart.  Similarly, all other organs in the body contain the powers with which they perform their special functions.  This [thesis of Aristotle] is correct and logical because the brain performs its functions, and likewise every organ performs its functions and all together they constitute the total life situation of an individual.  However, the heart sends the specific power of life to each organ.[12]

We may not have direct evidence as to whether Rashi ascribed to a Galenic or Aristotelian model of the heart’s interaction with the rest of the body.  But this passage demonstrates that at least some pre-modern doctors understood that the heart served the function of delivering a crucial life-giving substance to the rest of the body, a substance that Galen considered to be derived from the inhaled air that entered the heart.[13]  In modern medical terminology, we refer to this delivery process as “circulation” and this crucial life-giving substance as “oxygen”.  True, medieval doctors had no conception of the role of blood in delivering this substance, so to refer to the heart in the context of medieval medicine as a “circulatory organ” is to overstate the case.  But their understanding of respiration was also vastly different from ours—its main purpose was to cool the “innate heat” of the heart by drawing in cold air, so it’s also not completely accurate to refer to the heart as a “respiratory organ” in the modern sense of the term.  

If one is to object to the use of this passage from Rashi as support for a cardiac definition of death, it seems sounder to base one’s objection on the passage’s interpretation history, though in this case the evidence that speaks loudest is who does not cite Rashi as a fundamental source.  Rashi’s commentary to this sugya may feature prominently in the aforementioned responsum of the Hakham Zevi, but it is conspicuously marginal in the writings of the two authorities most frequently cited on the issue of brain death: Rabbi Moshe Schreiber (the “Hatam Sofer”) and Rabbi Moshe Feinstein.  In the relevant responsum (She’elot Ve’Teshuvot Hatam Sofer, Yoreh Deah #338), the Hatam Sofer cites the sugya in Yoma as his primary source, yet does not refer at all to Rashi’s commentary.  Likewise, Rabbi Feinstein (She’elot Ve’Teshuvot Iggerot Moshe, Yoreh Deah #146) cites Rashi’s commentary in Yoma only as a secondary citation from the Hakham Zevi—not as the basis for his own position, and then only to explain why the Hakham Zevi’s proof from Rashi doesn’t undermine his position.  This is not to say that these authorities unequivocally deem heart function to be irrelevant; quite the opposite—as I will argue in later posts, these responsa are sufficiently ambiguous to offer support for both sides of the brain death debate.  But to the extent that the Hatam Sofer and Rabbi Feinstein can be interpreted as saying that heart function is a dispositive sign of life, there is little to suggest that Rashi’s commentary in Yoma influenced their rulings.

To summarize our analysis thus far: The sugya in Yoma strongly suggests that Halakhah determines the moment of death based on the absence of respiration, and regardless of how we understand Rashi’s commentary, in point of fact it does not figure as a significant factor in principal later sources.  We will examine the positions of the Hatam Sofer and Rabbi Feinstein in more detail in subsequent posts 

[2] Virtually all the halakhic sources that the RCA paper cites from the past decade are oral communications with halakhic authorities confirming or clarifying previously stated positions.  Strangely, the paper makes no mention of the one major halakhic development on this issue from the past few years: the support of R. Ovadiah Yosef and R. Shlomo Amar for Israel’s Cerebro-Respiratory Death Act, 2008, which officially accepts brain stem death as the standard of death. 

[3] A notable exception to this is Rabbi Hershel Schachter (“בדיני מת וגברא קטילא”, אסיא 7 [1994], pp. 188-206), who refers to the sugya in Yoma 85a only in passing.  Instead he bases his ruling largely on the sugya in Nazir (21a), a source not mentioned by any of the other authorities who address this topic.  Due to the idiosyncratic nature of Rabbi Schachter’s analysis, I have chosen not to address it here.

[4] Contra. Edward Reichman (Torah U-Madda Journal 4 [1993], p. 154), who insists that the simple implication of the term לבו is the actual heart organ (“It is clearly the heartbeat that is either being palpitated or listened for”).

[5] For a thorough analysis of the textual variants to this sugya, see Alexander Tal, “Nostrils, Navel or Heart? Significant Textual Talmudic Variations Concerning Signs of Life” (available at http://www.hods.org/pdf/Nostrils,%20Navel%20or%20Heart(1).pdf).

[6] In theory it is possible to check the pulse at the abdomen.  From a practical perspective, however, the abdomen is a far less reliable place to find a pulse than, say, the neck or the ankle (see Reichman, p. 152), so if the opinion that holds that one must examine עד טיבורו is advocating checking the victim’s pulse, it’s not clear why he would choose the abdomen as the place to do so.

In general, it does not seem that the gemara is interested in (or even aware of) the use of the pulse as a vital sign.  The technique of checking for a pulse was well known in antiquity, but is never referred to explicitly in the Talmud.  (ibid.)

[7] Meiri, the only medieval commentator who explicitly refers to both variants, doesn’t seem to find the difference in language significant; he speaks of checking עד טיבורו או לבו (“to either his navel or his heart”).  (The same is true of R. Moshe Feinstein [She’elot Ve’Teshuvot Iggerot Moshe, Yoreh Deah #146] who repeatedly refers to the second opinion in the gemara as עד לבו ועד טיבורו.)  The authors of the RCA paper duly note this fact (pp. 27, 86), but whereas they see it as proof that even the variant of טיבורו could be referring to heart function, the other evidence we cited above suggests the opposite—even the variant of לבו doesn’t indicate that the gemara is referring to the actual heart.

[8] Rabbi Avraham Steinberg concludes as much when he says that “the heart as a criterion for determining the moment of death is not mentioned at all in the Talmud”. (“קביעת רגע המות – חלק ב’ : היבטים הלכתיים”, אסיא 3 [1982], p. 406).

However, the authors of the RCA paper defend the notion that the gemara itself relates to heart function by emphasizing the proposed parallel between the initial debate and the debate regarding fetal development.  They suggest that Abba Shaul’s position that the fetus develops from מטיבורו (“from the navel”) is referring to the fact that the heart is one of the first discrete organs to develop within the fetus’ body.  So as to strengthen the parallel between Abba Shaul’s position and the opinion that holds we uncover the victim עד לבו, the authors suggest that עד לבו must be referring to the actual heart. (pp. 25-6)  Based on this they critique R. Steinberg for “fail[ing] to provide a good and clear reading of the גמרא.” (p. 86)

This analysis strikes me as forced for a number of reasons: 1) It assumes that proposed parallels between different Tannaitic  debates are highly precise, an assumption that is difficult to sustain on a Talmud-wide basis; 2) It places a great deal of weight on an intermediate proposal that is quickly rejected, while ignoring evidence from R. Papa’s interpretation, which is accepted as authoritative; 3) In order to preserve the literal meaning of the phrase עד לבו, the authors are forced to sacrifice the literal meaning of Abba Shaul’s phrase מטיבורו; 4) It imposes modern medical knowledge on Abba Shaul’s position, an issue we will discuss at greater length below (the authors themselves acknowledge this last difficulty).

[9] For example, see J. David Bleich (“Of Cerebral, Respiratory and Cardiac Death”, Tradition 24:3 [1989], pp. 44-66),  who acknowledges that from the gemara itself it seems that all opinions regard cessation of respiration as a reliable indicator of death, but then continues: “This analysis, as attractive as it may be as a literal reading of the Gemara, is contradicted by Rashi in two separate comments.” (p. 55)

[10] For example, see Bleich, “Establishing Criteria of Death”, Tradition 13:3 (1973), p. 95-96.

We should note that Rabbi Bleich (“Cerebral”, pp. 55-6) also finds support for a cardiac definition of death in a second passage in Rashi.  In describing the case the gemara is addressing, Rashi explains: “עד היכן הוא בודק”: אם דומה למת שאינו מזיז איבריו, עד היכן הוא מפקח לדעת האמת (“‘How far does one examine’: If he is like a corpse that does not move its limbs [eivarav], until what point to we check to determine the truth?”).  Rabbi Bleich notes that elsewhere (Bekhorot 45a), both the Talmud and Rashi use the term eivarim to refer to the 248 ‘limbs’ that Rabbinic tradition ascribes to the human body.  (Although the figure of 248 limbs is traditionally understood to refer specifically to bones, the term “ever” is often used in Rabbinic literature to refer to other non-osseous organs.)  Based on this, if any of the victim’s eivarim—including his heart—were moving, establishing the absence of respiration would be insufficient to declare the victim dead.  Rabbi Bleich reiterates this interpretation in numerous other publications (e.g., “Survey of Recent Halakhic Periodical Literature”, Tradition 16:4 [1977], p. 136; “Survey of Recent Halakhic Periodical Literature”, Tradition 22:2 [1986], p. 79; “Time of Death”, Judaism and Healing [New York: KTAV, 2002] p. 191).

I mention this argument only because Rabbi Bleich seems to find it so fundamental.  It’s hard to imagine how Rashi expects the rescuers to verify a complete absence of internal muscle movement when they had uncovered (according to one opinion) only the victim’s head.  Within the context of this sugya, it’s clear that “eivarav” refers simply to the victim’s external limbs (as far as the rescuers can discern them), and does not carry a strict technical meaning of all the body’s of internal and external organs.

 [11] Op. cit. (n. 2), pp. 155-6, 158-62.

[12] F. Rosner and S. Muntner, The Medical Aphorisms of Moses Maimonides, vol. 2 (New York: Yeshiva University Press, 1971), p. 219.

[13] Reichman, p. 150.

Land and Sea, Natural and Supernatural in the Book of Jonah

by Daniel Reifman 

Like many texts that have been incorporated into the liturgy, the book of Jonah seems inseparable from the time it is read in the synagogue: the afternoon of Yom Kippur. As the day draws to a close, our thoughts turn to the final moments when our fate for the coming year will be sealed, and then inexorably to our uncertainty as to what that fate will be.

Two verses from the book capture this mood with particular poignancy. In chapter 1, the captain of the ship awakens the sleeping prophet and cries, “Arise, call upon your god! Perhaps the god will be kind to us and we will not perish.” (v. 6) In chapter 3, the king of Nineveh expresses an almost identical sentiment when he concludes his edict to the people by saying, “Who knows whether God will turn and relent, and turn back from his evil wrath so that we do not perish.” (v. 9) The characters seem almost to be speaking on our behalf at a moment when, after over a month dedicated to repentance and a full day devoted to prayer and fasting, we still have no idea whether our actions have had any impact on the divine will.

In contrast, Jonah’s claim against God at in chapter 4 is predicated on his knowing all about God’s behavior:

O Lord! Isn’t this just what I said when I was still in my own country? That is why I fled beforehand to Tarshish. For I know that You are a compassionate and gracious God, slow to anger, abounding in kindness, renouncing punishment. (v. 2)

God does not respond immediately to Jonah’s complaint. Instead he orchestrates a series of events that demonstrate to Jonah just how much he does not understand. God’s ‘answer’, so to speak, is experiential rather than rational. Indeed, rather than trying to formulate the ‘moral’ of Jonah, we should note that the book ends with a question:

…And should not I care about Nineveh, that great city, in which there are more than a hundred and twenty thousand people who do not yet know their right hand from their left, and many beasts as well? (v. 11)

The thrust of God’s message, then, is theological humility, reaffirming the sentiment expressed by the ship’s captain and the king of Nineveh. Jonah may not understand God’s decision to spare Nineveh, but it is the human condition not to have all the answers. God does not need to account for Himself.

Natural and Supernatural Models of Divine Interaction

Yet in highlighting the parallel statements of the captain and the king, we have also ignored the specific contexts in which they appear. These statements are, of course, not uttered as abstract theological musings; each is embedded within a narrative—the storm at sea and the threatened destruction of Nineveh—and the differences between those narratives undercuts the simple comparison that we have drawn. A detailed analysis of the differences between these episodes complicates the simple message that we have drawn from the book thus far, and suggests that there may be more to Jonah’s complaint than meets the eye.

Both chapters 1 and 3 follow the same basic structure, a series of alternating divine and human actions which constitute a sort of unspoken dialogue: God threatens, man responds, God relents, man responds again. Yet the tenors of these two ‘conversations’ differ considerably: each stage in chapter 1 is marked by greater clarity and intensity than its parallel in chapter 3. For example, at sea the threat of the storm is palpable and immanent: “…such a great tempest came upon the sea that the ship was in danger of breaking up.” (1:4) In contrast, God’s threat to destroy Nineveh is conveyed only through Jonah’s terse message; the people have not the slightest evidence of its truth. One might argue that this difference is immaterial, given the utter sincerity with which the Ninevites heed Jonah’s message. Yet the disparity in the clarity and intensity of the two divine threats is reflected in the emotional responses they elicit: the sailors “feared” (v. 5) and then “feared greatly” (v. 10), but the Ninevites merely “believed” (3:5).

Given the amorphous nature of the threat, the fact that the Ninevites heed Jonah’s warning is truly remarkable. (More than one commentator has remarked that the Ninevites’ response surpasses Jonah’s survival in the fish as the most fantastic event in the book.) But a close examination of the actual process of their repentance yields a more ambiguous picture. In describing God’s decision to pardon the city, the text (3:10) singles out the fact that they changed their sinful behavior—“God saw what they did, how they were turning back from their evil ways…”, wording which echoes the king’s final command to the people: “…Let everyone turn back from his evil ways and from the injustice of which he is guilty…” (v. 8) Yet in the overall scope of the Ninevites’ actions, the notion of changing their behavior comes across almost as an afterthought. The bulk of the text’s description of their repentance (v. 5-8a) focuses on ascetic measures—fasting and donning of sackcloth—that are not directly related to the “wickedness” (1:1) that has drawn God’s wrath and are not mentioned in God’s decision to pardon them. If the quantity of text devoted to these actions suggests that the Ninevites have somewhat misplaced priorities, that sense is reinforced by the way the text emphasizes that even livestock was compelled to fast and wear sackcloth (v. 6-7). While there is no doubting the Ninevites’ sincerity, one is left with the distinct impression that they don’t fully understand what God wants them to do.

Initially the sailors’ position is no different than that of the Ninevites; they don’t even know which divine power is causing the storm. But as the story progresses, they perceive, with increasing clarity, the hand of God controlling their fate. The key turning point comes when the sailors cast lots, which miraculously single out Jonah as the cause of the storm. As the events continue to unfold, the sailors come to realize the course of action God wants them to take: to throw Jonah overboard. As they prepare to cast the prophet into the raging sea, the sailors experience a moment of supreme awareness of the divine will; the startling directness with which they address God—“…for You are the Lord, You do as You wish” (1:14)—is almost unparalleled in Biblical narrative.

Perhaps the most revealing difference between these episodes lies in the way God’s clemency is perceived by the penitents. In chapter 1, the storm subsides instantly when the sailors throw Jonah overboard, confirming for them beyond any doubt that their fate lies in God’s hands and that they have done as He wished. Consequently, they react with “great fear of the Lord” (v. 16) and offer vows and sacrifices in thanksgiving. For all the uncertainty initially expressed by the captain, by the end of their ordeal, the sailors know. In chapter 3, however, God’s decision to stay the destruction of Nineveh is never conveyed directly to the Ninevites themselves. God offers no heavenly sign, not even a second prophetic message commending the Ninevites on their sudden turnaround. He simply, imperceptibly, spares the city, leaving the Ninevites to ponder the significance of their survival. Who’s to say whether they awoke on the morning of the 41st day and, finding their city still very much intact, wondered if it hadn’t been a hoax after all…

We can view the different experiences of the sailors as the Ninevites as representative of two models of God’s interaction with humanity. The Ninevites’ experience follows what we think of as a natural course of events. In the absence of any direct sign from God, they can discern God’s will only by reading between the lines of nature, by seeing divine significance in events—Jonah’s message, the fact that their city is not destroyed—that could easily be dismissed as nature running its course. In contrast, the sailors’ responses are shaped by precisely the sort of overt divine intervention—the outcome of the lots, the sudden cessation of the storm—that is absent in Nineveh. The sailors directly perceive the supernatural—the divine power that functions above the laws of nature in guiding their fate.

Land and Sea

One of the most basic—and overlooked—distinctions within Jonah concerns the setting: the entire first half of the book (save the first two verses) is set at sea, while the entire second half is set on land. The dichotomy of sea and land is accentuated by Jonah himself, who refers to the Lord as the One who “made the sea and the dry land” (1:9).

Juxtaposition between land and water features prominently in several Biblical narratives. The most conspicuous example is the splitting of the Red Sea in Exodus 14, where the text emphasizes the fact that God “turned sea into dry land” (14:21) and that the Israelites “walked on the dry land within the sea” (14:29, 15:19). Other such episodes include the separation of land and sea during Creation (Gen. 1:9-10), the Flood story (Gen. 7), and the crossing of the Jordan by the Israelites (Joshua 3) and again by Elijah and Elisha (II Kings 2). In all these cases, the contrast between land and water is accentuated by the use of the terms yabashah or haravah—‘dry land’—instead of (or, in some cases, in addition to) the more common eretz or adamah.

It is significant that in all of these cases, the relationship between water and land revolves around the creation and/or destruction of an environment fit for passage or habitation. For example, the gathering of the waters on the third day of Creation permits the growth of plants later that day, and the parting of the waters of the Red Sea and the Jordan allows for the safe passage of the Israelites. Conversely, the covering of land with water results in the destruction of life. The waters of the Flood destroy all the earth’s inhabitants, and the Egyptian army is annihilated when the waters of the Red Sea return to their place. Likewise, in the first half of Jonah, the sea constitutes a threatening, inhospitable environment. In the Bible, water is generally portrayed as a source of life, but in these episodes it is precisely the absence of water that permits life to exist, while an overabundance of water suppresses, suffocates, drowns.

I would like to propose that the sea/land dichotomy takes on a figurative dimension in Jonah, one suggested by the following midrash (Bereishit Rabbah 28:2):

“Let the waters be gathered (yiqawwu) into one area” [Gen. 1:9]: “Let the waters hope (yeqawwu) for Me, for what I am about to do with them.” This is like a king who built a palace and settled dumb people in it. They would rise up early in the morning and greet the king in sign language. The king said, “If these dumb people rise early to greet me in sign language, how much better it would be if they could speak!” So the king settled speaking people in his palace. They rose up and took over the palace. They said, “This palace does not belong to the king, it belongs to us.” So the king said, “Let the palace return to its previous state.” So, too, in the beginning, God’s praise rose up only from the water, as it is written, “From the voices of many waters.” And what did they say? “God is majestic on high.” [Psalms 93:4] God said, “If these waters, which have no speech, praise Me, when man is created, how much more he will praise Me!” The generation of Enosh arose and rebelled against him; the generation of the Flood rebelled; the generation of the Tower of Babel rebelled. God said, “Let these be removed and let those who were here before come in their place.”¹

Underlying the midrash’s concept of speech is the notion of free will. The waters express absolute, unequivocal praise of God because they cannot invent language of their own, while the man’s subordination stems from his ability to create and utilize words that deny God’s supremacy. For the midrash, the Flood represents not only the destruction of the physical world but the crushing of human will, as the vast abundance of water fills the world with silent, absolute acquiescence to the will of the divine.

This notion of the sea as a place of existential suppression reinforces our analysis of the differences between chapters 1 and 3. In the book of Jonah, sea and land constitute parallel worlds in which similar chains of events unfold in dramatically different ways. At sea, the sailors are able to perceive God’s immanence; as a result, they are able utterly to negate their will to His. On dry land, God does not impose His presence. Land constitutes a stable, non-threatening environment where man can pursue his desires—for good or evil—free from the immediate judgment of the Almighty. Man may feel remorseful, even undergo sincere repentance, but the sense of utter and complete submission to the divine will is necessarily lacking.

Jonah’s Struggle

I would suggest that the discrepancy between these two manifestations of God and how man responds to them lies at the very core of Jonah’s struggle. At sea, Jonah experiences a sublime world in which man’s desire is in perfect agreement with God’s. In such a world, the concept of divine mercy is not so much reasonable as irrelevant: it is possible to predicate man’s continued existence on his acquiescence to the divine will for the simple reason that man has no choice but to acquiesce. What Jonah cannot accept is a world in which man’s moral freedom is at odds with his ability to comprehend God’s design. Here man’s desires will necessarily be in tension with God’s; even sincere and earnest repentance will necessarily fall short. It is here that Jonah issues his complaint against divine mercy: why does God allow this flawed existence to persist?

As we stand before God in the waning hours of Yom Kippur, we, too, understand Jonah’s struggle. Not only do we wonder if we managed to achieve what God expects of us, we cannot even be sure that we have perceived correctly what those expectations are. Yet we take solace in God’s final rhetorical question, where He affirms that even our imperfect world—full of “people who do not yet know their right hand from their left”—can be the recipient of His boundless mercy.²

1. Translation based on Avivah Gottleib Zornberg, Genesis: the Beginning of Desire (Philadelphia: Jewish Publication Society, 1995) 47-8.
2. This article is dedicated to the memory of my friend and chavruta, Sara Duker hy”d.  The final time Sara and I studied together was the afternoon of Yom Kippur 5756, and the ideas that we shared that day became the kernel of this essay.

by Daniel Reifman

Teachers of Halakhah are often torn between conflicting agendas: on the one hand, to ensure that students have mastered all the laws relevant to contemporary observance, on the other hand, to familiarize them with a sense of the background—both the history and reasoning—that informs what we practice.  Throw in the fact that most day schools accord less time for Halakhah than for other Judaic studies subjects, and it’s no wonder that the one of the central purposes of education—to engage our students’ critical faculties—is often overlooked. 

I admit that encouraging students to think critically about the halakhic process presents certain challenges, not the least of which is the risk of undermining students’ respect for that process.  Yet I would suggest that such concerns reflect our fears as educators more than our students’ actual experiences.  Taught with appropriate restraint, such an approach to Halakhah can engender a sense of respect for the halakhic process by allowing students to engage with the material on their own terms. 

The following is an example of this approach as applied to the topic of shehiyah—leaving food on the fire from Friday afternoon into Shabbat, an activity the Sages restrict in certain circumstances.  My primary goal is simply to get my students thinking about the reasons behind rabbinic prohibitions, but ultimately I also want to question the assumption that we can always know exactly why such prohibitions were enacted.

 The debate between Beit Shammai and Beit Hillel

I introduce the topic of sheyihah by placing it within a broader framework of melakhot (prohibited actions) that are set into motion late on Friday afternoon.  This issue is the subject of a prominent debate between Beit Shammai and Beit Hillel, as recorded in Mishnah Shabbat 1:5-9: 

בית שמאי אומרים: אין שורין דיו וסממנים וכרשינים אלא כדי שישורו מבעוד יום; ובית הלל מתירין.  בית שמאי אומרים: אין נותנין אונין של פשתן לתוך התנור אלא כדי שיהבילו מבעוד יום, ולא את הצמר ליורה אלא כדי שיקלוט העין; ובית הלל מתירין.  בית שמאי אומרים: אין פורשין מצודות חיה ועופות ודגים אלא כדי שיצודו מבעוד יום; ובית הלל מתירין.

…ושוין אלו ואלו שטוענים קורות בית הבד ועגולי הגת.

Beit Shammai rule: ink, dyes and vetches may not be steeped unless they can be dissolved while it is yet day; but Beit Hillel permit it.  Beit Shammai rule: bundles of wet flax may not be placed in an oven unless they can begin to steam while it is yet day, nor wool in the dyer’s kettle unless it can assume the color [of the dye]; but Beit Hillel permit it.  Beit Shammai rule: traps for wild beasts, fowls, and fish, may not be laid unless they can be caught while it is yet day; but Beit Hillel permit it.

…and both [schools] agree that the beam of the [oil] press and the rollers of the wine press may be loaded [right before Shabbat].

Before proceeding to the Talmud’s explanations of the machloket (halakhic debate), I ask my students to consider whose opinion seems more intuitive.  Typically students are quick to realize the logic behind Beit Hillel’s position: an action completed before the onset of Shabbat cannot constitute a violation of Shabbat, even if its effects extend well past sundown.  The difficulty then, lies in explaining Beit Shammai’s position.  I further ask my students to consider why Beit Shammai concedes in the cases of the oil and wine presses, and why the following mishnah (1:10) records no objection from Beit Hillel:

אין צולין בשר בצל וביצה אלא כדי שיצולו מבעוד יום…

Meat, onion[s], and egg[s] may not be roasted [right before Shabbat] unless they will get roasted while it is yet day…

Here, too, is a melakhah that is set in motion before the onset of Shabbat, yet the ruling is presented anonymously—presumably placing it outside the scope of the machloket.

The Talmud Bavli, we should note, doesn’t directly address any of these questions.  Only in the process of explaining a parallel beraitha (in which Beit Shammai and Beit Hillel debate a further series of cases in which an action done before Shabbat has effects that continue into Shabbat) does the Bavli (18a) raise the issue of shevitat keilim—the notion that one’s utensils must also not “participate in” melakhah on Shabbat—and then suggest that this is the underlying basis of the machloket.  But this explanation doesn’t fit neatly with most of the mishnah’s cases (as students are quick to point out), nor does it account for the cases in which Beit Shammai and Beit Hillel do agree: loading the weights of an oil or wine press—which all agree is permissible—and placing food on the fire to roast—which all agree is prohibited.¹ Indeed, the Yerushalmi—which parallels part of the sugya in the Bavli—makes no mention of shevitat keilim in this context.

The Tosefta’s version of the debate 

Instead of focusing on the Bavli’s explanation of the machloket, I follow up our discussion of the Mishnah by showing my students the Tosefta (Shabbat 1:9), which presents the machloket between Beit Shammai and Beit Hillel in dialogue form:

אמרו בית שמאי לבית הלל: אין אתם מודין שאין צולין בשר בצל וביצה בערב שבת עם חשיכה אלא כדי שיצולו?  אף דיו סמנין וכרשנין כיוצא בהן.

אמרו להן בית הלל: אי אתם מודין שטוענין קורות בית הבד ותולין עגולי הגת ערב שבת עם חשיכה?  אף דיו סמנין וכרשנין כיוצא בהן.

 אלו עמדו בתשובתן ואלו עמדו בתשובתן, אלא שבית שמאי אומרים: “ששת ימים תעבד ועשית כל מלאכתך” [שמות כ:ט] – שתהא כל מלאכתך גמורה; ובית הלל אומרים: “ששת ימים תעשה [מעשיך]” [שם כג:יב] – מלאכה עושה אתה כל ששה.

Beit Shammai said to Beit Hillel: Don’t you admit that one may not roast meat, an onion, or an egg on Friday afternoon immediately before nightfall unless they will get roasted [before Shabbat]?  Likewise ink, dyes or vetches [may not be steeped immediately before nightfall].

Beit Hillel said to them: Don’t you admit that one may load the beams of the oil press or suspend the rollers of the winepress on Friday afternoon immediately before nightfall?  Likewise ink, dyes or vetches [may be steeped immediately before nightfall].

These stood by their answer, and these stood by their answer; but Beit Shammai said: “Six days you shall labor and do all your work” [Ex. 20:9] — that all your work should be complete; and Beit Hillel said: “Six days you shall do [your work]” [Ex. 23:12] — you may do work all six [days].

Unlike in the Mishnah, where the cases in which Beit Shammai and Beit Hillel agree appear almost as an afterthought, in the Tosefta they form the crux of the debate.  Each side makes its case by citing an accepted precedent, and the machloket revolves around the issue of which precedent is more relevant to the case of steeping dye plants right before Shabbat.  What does seem like an afterthought in the Tosefta is the derashot (textual inferences) that Beit Shammai and Beit Hillel cite as the basis for their positions.  Rather than presenting the derashot as part of the dialogue, the Tosefta cites them only after noting that neither side yielded its stance.  What the Tosefta implies, then, is that neither side could fully articulate why the other’s side precedent isn’t relevant.

A basic model of legal reasoning:   Rav Moshe and the Chazon Ish

I find the Tosefta’s version of the machloket an interesting teaching tool on two levels.  First, I use it to illustrate to my students one of the most fundamental forms of legal reasoning.  Given a question about any halakhic issue, we can construct a test case on either side of that issue by finding two known precedents, one of which is prohibited and the other permitted.  Having set up such a framework, we can formulate any halakhic conclusion about the case in question simply as a choice to use one of the precedents over the other.  Particularly for students not trained in abstract Talmudic reasoning, this model can be a simple and effective way to frame complex halakhic issues.

For example, consider the debate between two 20^th-century poskim (rabbinic decisors), the Chazon Ish (R. Avraham Yeshaya Karelitz) and R. Moshe Feinstein, regarding the use of a blech to leave food on the stovetop into Shabbat.  R. Moshe Feinstein (Iggerot Moshe O.H. 1:93) rules that covering the burners with a blech (metal sheet) permits one to leave food that is not fully cooked (such as a cholent) on a stovetop into Shabbat, a point disputed by the Chazon Ish (O.H. 37:11).  Their debate centers around the Mishnah’s ruling (Shabbat 3:1) that one may leave a stew on a kirah (a type of ancient oven) into Shabbat if the coals in the oven have been banked (i.e., covered) with ash.  What about a case in which the coals (or the equivalent heat source) have been covered with something else, such as a sheet of metal?  Here we find conflicting implications from the medieval commentators.  On the one hand, Mordechai (Hagahot Mordechai Shabbat ch. 3) states that covering the opening of the oven with an empty pot is the equivalent of baking the coals.  On the other hand, Rashi (Shabbat 37a, s.v. גבה) implies that one is required to bank the coals even if one places the stew atop the cover (כיסוי) of the oven.  The practical difference between an empty pot and the oven’s normal cover would seem to be negligible, and it’s tempting simply to chalk up this apparent conflict to a simple difference of opinion between Rashi and Mordechai.  However, since both of their rulings are accepted by later authorities, we are forced to say that the two scenarios—placing a stew atop an empty pot vs. placing the stew atop the oven’s normal cover—are halakhically distinct.  Here, then, are the conflicting precedents that inform the use of a blech.  The debate between the Chazon Ish and R. Feinstein can be framed as a question whether a blech is more comparable to an empty pot or to an oven cover.

But in order for this model of legal reasoning to be effective, we need first to be able to articulate the difference between the two precedents in conceptual terms: Given two such similar cases, why is it that one is permitted and the other prohibited?  It’s this conceptual formulation that allows us to categorize the case in question as being more similar to one precedent or the other.  In the case of the blech, both the Chazon Ish and R. Feinstein agree that the difference between Rashi’s ruling and the Mordechai’s ruling stems from the need for a shinui (irregular procedure) in order to leave food on the fire.  Placing food on top of an empty pot is considered a shinui because one would not normally cook this way, unlike placing the food on top of the oven’s normal cover which might be done even during the week (at least in the context of the type of oven referred to in the Mishnah).  The Chazon Ish and R. Feinstein disagree about whether placing the pot atop a blech is or is not considered normative cooking practice.

Precedents with no clear rationale

The problem we face in the case debated by Beit Shammai and Beit Hillel—preparing a dye solution right before Shabbat—is that neither side can explain the difference between the two precedents.  Why should loading the weights of an oil or wine press right before Shabbat be permitted when the equivalent case of cooking—placing meat on the fire right before Shabbat—is prohibited?  This is not to say that there is no way of explaining the difference between these cases, only that in the Tosefta’s version of the machloket, neither side is able to articulate a cogent distinction.  Faced with an irresolvable conflict between two precedents, their machloket over a third case ends in a stalemate: אלו עמדו בתשובתן ואלו עמדו בתשובתן. 

Of course this analysis only begs the question: If no one can explain the reasoning behind these precedents, why are they valid arguments?  Here, then, is the second point I impart to my students: as much as we like to assume that Halakhah flows in smooth and coherent fashion from a fixed set of principles, we must acknowledge that often practice takes on a life of its own.  This is true not only with regard to practices that we categorize as minhagim (customs), but even—as in this case—with regard to practices that have the force of gezeirot (rabbinic edicts).  The Tosefta’s language suggests that by the time of Beit Shammai and Beit Hillel’s debate, these rulings—to load the weights of oil and wine presses right up until Shabbat but not to begin roasting food right before Shabbat—were sufficiently ancient for the original reasoning behind them to have been forgotten.  Moreover, it would seem that the two practices weren’t perceived as being in conflict until Beit Shammai and Beit Hillel considered a set of similar cases, such as preparing a dye solution right before Shabbat; only then did the underlying conceptual issue come to the fore, and with it an irresolvable contradiction.

Conclusion

Although this sugya provides particularly clear examples of rabbinic prohibitions which lack clear rationales, I would suggest that this phenomenon is far more widespread than generally acknowledged.  Following the approach I have outlined here, I recommend that in cases like these we trust our students’ intellectual curiosity, giving them the freedom to question accepted interpretations, then empowering them with the tools to seek out alternatives.

1. The Bavli (18b) also suggests a reason that Beit Hillel would concede to Beit Shammai with regard to leaving foodstuffs in the oven from Friday afternoon: שמא יחתה בגחלים — “lest one come to stoke the coals”.  But like the idea of shevitat keilim, the concern that one might come to stoke the coals emerges only in the Bavli’s analysis of a beraitha.  Only in the medieval commentaries do we find this explanation used to account for Beit Hillel’s concession to Beit Shammai in mishnah 1:10.