Did Rav Karo Absorb Kabbalah into Halakhic Discourse?  The Zohar as Deciding Factor

In his monograph on Karo, R. J. Zwi Werblowsky broadly contended that Karo’s works displayed a “well-known unwillingness to allow kabbalistic considerations or mystical experiences to influence halakhic decisions, which, he felt, should be arrived at exclusively by the traditional methods of rabbinic dialectic” (Werblowsky 184).  Werblowsky claimed that while theologically and emotionally significant, the Zohar and personal revelations played no role in Karo’s halakhic thought.  As proof, he cited a responsum from R. Shmuel Vital, who similarly asserted that Karo adjudicated according to “pshat,” with no non-legal influences.

Jacob Katz, however, showed that Karo did absorb mystical literary texts into Halakhic considerations.  Indeed, in his introduction to the Bet Yosef, Karo cited the Zohar in his long list of sources.  Moreover, Katz cites multiple cases in the Bet Yosef where Karo weighed the halakhic value of Zoharic prescriptions and later integrated them into the Shulchan Aruch (Katz 52-55).  Kabbalistic considerations primarily impacted the realm of common religious rites (Orach Chaim).  Regarding “hand-washing in the morning,” for example, the rishonim disagreed whether it represented a formal ritual with minute details (Rashba), or a mere hygienic device in the morning (Rosh).  Karo cites the Zohar to prove the former, and further notes:

ועוד כתובים שם בנטילת ידים שחרית חידושין שאינם נמצאים בפוסקים

Karo coolly incorporated these new rituals into his Shulchan Aruch (4:7-11), such as the requirement of pouring the water over another vessel and not directly unto the ground.

With regard to hand-washing, one might argue that the Zohar played an ancillary role in the decision.  The Zohar merely buttressed the opinion of the Rashba, while the additional requirements represent recommended but not necessary embellishments.  Yet in B.Y. O.C. 141, Karo gives decisive weight to the Zohar, noting its admonition that the oleh should not read the Torah along with the shaliach tzibbur.  Giving it primacy over the Rosh’s concern for a bracha le-vatala, he writes,

ומתוך לשון הרא”ש שכתב רבינו יתבאר לך שצריך העולה לקרות בנחת עם שליח ציבור כדי שלא תהא ברכתו לבטלה וכן כתבו התוספות… ורבינו הגדול מהר”י אבוהב ז”ל כתב שמעתי שכתוב בספר הזוהר שאין לקרות כלל אלא אחד וראוי לחוש לדבריו אם האמת הוא כך שאני לא ראיתיו כתוב אלא ששמעתיו עכ”ל ואני הכותב זכיתי למוצאו והוא בפרשת ויקהל (רב:) וז”ל ואסיר למיקרי באורייתא בר חד בלחודוי ושתקין ושמעין מלה מפומיה כאילו קבלין לה האי שעתא מטורא דסיני…וכיון דלדברי הזוהר אסור לקרות אלא אחד לבד ועכשיו שנהגו ששליח ציבור הוא הקורא העולה אסור לקרות אע”פ שלדברי הפוסקים צריך לקרות ואם לא יקרא כתבו דהוי ברכה לבטלה מאחר שלא נזכר זה בתלמוד בהדיא לא שבקינן דברי הזוהר מפני דברי הפוסקים. ועוד דהא איכא למימר דכל שהעולה שומע מה ששליח ציבור קורא ומכוין לבו לדבריו הרי הוא כקורא דשומע כעונה (סוכה לח:) הילכך צריך ליזהר העולה מלקרות עם שליח ציבור. ומיהו אפשר שאפילו לדברי הזוהר רשאי לקרות והוא שלא ישמיע לאזניו

Karo strikingly justifies his argument by noting that as long as the Zohar does not contradict an explicit Talmudic text, then it can gain precedence over other poskim.   Although Karo later finds a method of reconciling the Zohar’s admonition with the rishonim’s position, he clearly empowers the kabbalistic text with legal significance.

In other halakhot, Karo further develops his position that the Zohar cannot override a Talmudic ruling but can take primacy in medieval debates.  He employs this rule, for example, to follow, against some rishonim, the Zohar’s adamant proscription from donning tefillin on Chol Ha-Moed.  Noting that the Babylonian Talmud does not explicitly rule on the issue, he states,

ומאחר שבתלמודא דידן לא נתבאר דין זה בפירוש מי יערב לבו לגשת לעבור בקום עשה על דברי רבי שמעון בן יוחי המפליג כל כך באיסור הנחתן

If, on the other hand, Talmudic sources can be culled to refute the Zohar’s position, however, one can reject R. Shimon bar Yochai’s position.  Thus he rejects the Agur’s bewilderment how poskim disputed the Zohar’s position that only one blessing should be recited while donning tefillin, noting that his interlocutors have ample Talmudic support.

ואיני יודע למה תמה על זה יותר מכמה דינים שמצינו שכתב רבי שמעון בן יוחאי בספר הזוהר היפך ממסקנא דתלמודא ואין הפוסקים כותבים אלא מסקנא דתלמודא וטעמא משום דאפילו אם היו יודעים דברי רבי שמעון בן יוחאי לא הוו חיישי להו במקום דפליג אתלמודא דידן והמפרשים דלעולם צריך לברך שתים משמע להו דבהדיא קאמר תלמודא הכי ולפיכך פסקו כן כל שכן שבימי הפוסקים עדיין לא נגלה ספר המאור הקדוש בעולם

Karo plainly reasons that just as the Talmud frequently rejects R. Shimon b. Yochai’s position, so too can his position be rejected when it is found in the Zohar.  Be that is it may, Katz undoubtedly proves that Kabbalistic literature plays a role in Karo’s legal decisions.

Different Strategies of Incorporation

The scope and nature of this influence requires nuance and differentiation.  In a study detailing the numerous occasions that kabalistic sources influenced Karo’s halakha, Moshe Halamish showed the various ways in which Karo used the Zohar and other mystical sources, such as Recanti.  Sometimes the Zohar will serve to strengthen the side of the argument toward which Karo was leaning (Halamish 90-91).  In other cases, it will serve as a primary textual source for a law or minhag, such as requirement for levi’im to wash the hands of kohanim before nesiat kapa’im (OC 128) or for women to abstain from attending funerals (YD 359).  Bet Yosef will also include examples of minhagim in the Zohar that fill lacunae in the halakha, such as how many windows a synagogue should contain (OC 32), or the details of hand-washing in the morning, noted earlier.  In certain circumstances, however, Karo ignores or rules against the Zohar, even if there is no explicit contradictory Talmudic source (Halamish 95-96).  The Shulchan Aruch rejects, for example, the Zohar’s proscription of consuming meat for one hour after eating milk (YD 69:2), and its admonition from benefiting of the gid ha-nesheh (YD 65:10).  Karo empowers the Zohar with the legal status of other non-Talmudic rabbinic texts (even if he assumes it to be written in antiquity).  Its practices cannot override the Babylonian Talmud, and its ordinances are weighed against competing rabbinic arguments and medieval practices.  As Katz notes (53-54, footnotes), in a number of circumstances, Karo handles the Zohar in the same manner as he would other halakhic sources.

Relative Weight of Different Laws in Shulchan Aruch

Katz and Halamish, however, both overemphasize the significance of Karo’s inclusion of a Zohar practice in his code.  Katz, followed by Chalamish, assert that Karo made all prescriptions in Shulchan Aruch “binding for all Israel,” unless otherwise explicitly noted with terms such as “It is commendable to take care…”  (Katz 54, Halamish 91).  Katz’s bases himself on a paragraph in the introduction to the Bet Yosef where Karo admonishes his readers not to accept his lenient opinions if the local practice is to prohibit the action.   According to Katz, this caveat allowed Karo to codify in a social vacuum and “measure the merits of the literary sources” according to halakhic reasoning alone (Katz 53).  As such, all conclusions drawn in the Shulchan Aruch derive from the same methodology and enjoy equally binding status.

Yet Katz misreads Karo’s statement in his introduction to the Bet Yosef.  Karo refers the reader to Pesachim 51a, in which the Talmud asserts that a community that has taken upon itself a stringent practice cannot simply switch to the more lenient opinion.  As Karo himself codifies in Yoreh Deah 214:1, the stringent practice transforms into a neder that cannot easily be changed, if at all.  Yet this does not mean that Karo dismissed the significance of contemporary practice.  In a previous paragraph, he explain that where widespread practice goes against his the consensus of his three primary poskim – Rif, Rosh, and Rambam –he will rule according to the minhag ha-olam (contemporary practice).  Karo understood that social factors played a role in psak halakha (halakhic adjudication), and as we shall see, played a significant role in his literary agenda.

More significantly, Karo’s statement does not shed any light on the relative weight each of his rulings.  Even if Karo entirely based his rulings through halakhic analysis of literary sources, that does not mean that he attributed the same weight to each se’if (section) in Shulchan Aruch.  Some laws stem from the Talmud and are explicated by all of its major commentators.  They are entrenched in the halakhic discourse and have been accepted, in one form or another, throughout the Jewish world.  Other laws, however, clearly do not enjoy such a rich tradition.  They are local minhagim, or fine details within the law, and lack the antiquity and pervasiveness of other laws.  Surely there is a difference, both in severity and obligation, between the mitzvah of eating on erev Yom Kippur (604:1, based on a Talmudic drasha), reciting a vidui before the seudat mafseket (606:1, based on a Talmudic din), and going to the mikvah or receiving lashes (606:7, 607:6, based on Ashkenazic minhagim).  Yet all are included in Hilchot Yom Ha-Kippurim of the Shulchan Aruch.  Karo achieved literary greatness precisely because he wrote a code (Shulchan Aruch) that organized his rulings from the sources culled in Bet Yosef.  Through both resources, the scholar could easily understand the relative weight behind each law within the code.

The Shulchan Aruch’s presentation of the morning hand-washing laws, cited above, display the distinction in the weight of the laws.  When resolving the dispute between Rashba and Rosh regarding hand-washing in the morning, Karo moderates the force of his ruling by introducing it as a praiseworthy vigilance  (OC 4:7).

טוב להקפיד בנטילת ידים שחרית בכל הדברים המעכבים בנטילת ידים לסעודה

Yet when ruling with regard to proper washing order with the right hand, Karo authoritatively states (4:10),

נוטל כלי של מים ביד ימינו, ונותנו ליד שמאלו, כדי שיריק מים על ימינו תחילה

Halamish believes that in the former case, he moderates his tone because the Zohar tips the scales in a disputed ruling.  In the latter case, however, where the Zohar serves as the source of the (textually) uncontested practice, it was “accepted in the Shulchan Aruch as an obligatory ruling” (Halamish 91).

Halamish’s example, however, does not convince and seemingly proves the opposite conclusions.  For starters, the necessity for washing in the proper order (4:10) stems from his conclusion in 4:7 that morning hand-washing deserves the treatment of a proper ritual.  As such, the law can only attain the status of the “hakpadah” required in by his earlier ruling.  Moreover, Halamish himself later acknowledges that he cannot find a consistent formula for Karo’s literary devices.  He introduces Zohar-based laws with modifying language like “yesh omrim,” “ha-minhag ha-nachon,” “tov la-hakpid,” but in other places simply states the law (Halamish 91-92).  The precise intention (if he had one) and legal significance behind Karo’s different word selections remains elusive.  Yet the very fact that he frequently uses such modifying language indicates that he believed that the minhagim or ordinances found in the Zohar do not always achieve an unequivocal normative status.[1]

Rav Karo’s Literary Agenda and the Inclusion of a Broad Range of Sources

This distinction between the relative obligatory nature of different se’ifim in Shulchan Aruch dovetails nicely with Yisrael Ta-Shma’s analysis of Karo’s literary agenda.  The Magid Mesharim makes clear that Karo desired that his magnum opus, the Bet Yosef, would turn his works into authoritative codes not only in Eretz Yisrael but throughout the world.  As the magid tells him (Magid 5),

ואמרין מאן ההוא גברא דמלך מלכי המלכים חפץ ביקרו הא הוא תנא סבא דארץ ישראל האי הוא ריש מתיבתא דארץ ישראל, הא הוא מחברא רבא דארץ ישראל וגם אם תתנהג ע”פ מנהגותי אזכך לגמור כל חיבורך ופרושיך ופמקותיך מכל שגיאה וטעות ולהדפיסם ולפשטם בכל גבול ישראל

In order to achieve this goal, however, Karo needed to include sources well beyond his own background of Spain and Eretz Yisrael.  As such, his works included not only Sephardic pillars such as Rambam, Rif, and Rosh, but also the writings of Ashkenazic poskim.  While Karo favored the former (although not exclusively) in areas of dispute, he included in the latter’s ruling in areas where the Sephardic poskim disagreed, to fill in the details of laws, or in a large number of minhagim where matters were uncontested.  As Ta-Shma pithily writes, “R. Yosef Karo’s rulings were Sephardic in quality and Ashkenazic in quantity” (Ta-Shma 158).   That is to say, while the Sephardic tradition received priority in the fundamentals of halakhic practice, many of the details or minhagim codified in the Shulchan Aruch, which have relatively lesser halakhic value, stemmed from Ashkenazic origin.  This made the work more attractive to Ashkenic readers, who expected their poskim and practices in any halakhic handbook.

In this regard, Karo used the Zohar in a similar fashion.  At times it helped to decide disagreements, on other occasions it provided details to certain rituals, and frequently it established new minhagim.  His inclusion of the Zohar helped the Shulchan Aruch gain acceptance not only in the emerging Kabbalistic centers in Turkey and Safed, but also in Greece, where the Zohar had achieved halakhic status unprecedented in the world (Ta-Shma 163-169).  Nonetheless, the work did not achieve the decisive status of more classical halakhic works such as Alfasi’s Haghot or Rambam’s Mishneh Torah, and its rulings were weighted accordingly.

Although the Zohar might not have achieved superior status in Karo’s hierarchy of halakhic texts, its very inclusion into the world of authoritative sources represented a major revolution.  The Sephardic world had just begun to cite the Zohar in Halakhic contexts, with major figures such as a R. David Ibn Zimra and R Jacob ben Habib sporadically quoting it, sometimes even without seeing the text inside (Katz 43).  In Eastern Europe, moreover, poskim entirely ignored the Zohar (since many of them had not seen the work), and even after the publication of the Shulchan Aruch, major figures such as the Maharshal viciously opposed its inclusion in the halakhic canon (Ta-Shma 161).  Karo empowered the Zohar with halakhic significance, quoting it (and other Kabbalistic works) dozens of times.  The inclusion of the Zohar in his writings significantly impacted the influence of Kabbalistic teachings for centuries.

The Evidence from Magid Mesharim

While Karo’s incorporation of the Zohar in halakhic discourse is readily apparent in the Bet Yosef and Shulchan Aruch, only in his Magid Mesharim does he reveal the personal significance of this achievement.  Long neglected by rabbis and academics alike as a forgery, R. J. Zwi Werblowsky conclusively proved that Karo penned this diary of mystical revelations from his personal magid, or angel.  Werblowsky, and more recently, Rachel Elior, extensively detailed the theological and mystical teachings in this work.  Our comments will focus on the significance of the magid on Karo’s legal works and his view of the relationship of halakha and kabbalah.

A quick purview of Magid Mesharim immediately reveals Karo’s obsession with completing his composition of the Bet Yosef and receiving scholarly approval for it.  The magid repeatedly assures him that the great sages of previous centuries and the heavenly hosts bless his work, and through proper concentration and behavior, he will produce a flawless work (Elior 677).  His rulings, the magid assures, even receive divine sanction, as he emphatically states (Magid 381),

חזק ואמץ אל תירא ואל תחת כי כל אשר אתה עושה ה, מצליח וכל אשר עשית והורית עד היום הזה ה’ מצליח בידך וכן מסכימים במתיבתא דרקיעא חי ה’ כי פסק זה אמת ויציב הלכה למשה מסיני הלכה כוותך … לכן חזק ואמץ אל תירא כי כל אשר עשית והורית עד היום הזה ה’ מצליח ומסכים בו וכן כל מה שתעשה ותורה מכאן והלאה הב”ה יצליח ויסכי’ על ידך

The magid goes on to condone Karo for constantly scrutinizing his ruling, but assures him that he need not fear his continued success.

ולמה חרדת על הפסק ההוא הלא נתן ה’ לך לב לדעת ולהכיר כי דברך אמת וצדק כי אעפ”י שאתה תמיד חושד סברתיך וזו מדה טובה היא מ”מ נכרים דברי אמת וע”כ אל יפול לבך עליו כלל כי במתיבתא דדקיעא מסכימים לדבריך כאשר אמרתי והלא לך למנד’ דמן שמיא משגיחי’ בך

Karo’s diary thus reveals the tremendous psychological strain to produce Bet Yosef and the significant role these mystical revelations played in prodding Karo to complete it.

Equally significantly, Magid Mesharim reveals the religio-political and theological goals behind Karo’s magnum opus.  In the introduction to Bet Yosef, Karo mourns the geopolitical status of the Jewish people following the expulsion from Spain.

With the Jews scattered throughout the world, he writes, halakhic practice has splintered into local rites, with “multiple Torot” being observed.  His composition seeks to transcend the geopolitical crisis and create a “virtual nation” centered around his codification.  He lists the poskim from the entire Jewish world that he cites to assure the book’s users that his “torah” can unify the Jewish people.

The Strain to Unify the Worlds of Halakha and Kabbalah

Yet as the Magid Mesharim shows, Karo’s goals extended beyond the unification of halakhic practice.  On numerous occasions, the magid lauds Karo for unifying the worlds of halakha and kabbalah.  Karo’s inclusion of the Zohar and other Kabbalistic texts attempted not only to encompass the full range of ritual practice, but also to unite the theological and legal orbits that he inhabited (Ta-Shma 162).  The following passage (Magid 258) particularly highlights this goal.

ואת כי תדבק בי ובתורתי וביראתי ומשניותי ולא תפריד אפילו רגע אחד ואתן לך מהלכים בין העומדים האלה ואזכך לגמו’ כל חיבורך בלי שו’ טעו’ ולהדפיסם ולפשטם בכל גבול ישראל עמי ואגדלה שמך בתלמידים יותר מיצחק אבואב בחירי לכן חזק ואמץ בתורתך כאשר אתה עושה בתורה במשנה בגמ’ רש”י ותוספות ובפסק ובקבל’ כי אתה מקשר אותם זה בזה וכל מלאכי מרום דורשים שלומך וטובתך ואל תצטער במזונות כי כבר אמרתי לך פעמים אין מספר כי פרנסתך מזומנת לא תחסר דבר כי אתה מושגח מאד בכל ענייניך רק כי תדבק בי ובתורתי ויראתי ועבודתי

Physical needs, the magid exhorts Karo, should not be your concern, since your flawless composition will spread throughout the world as you unite the worlds of psak and kabbalah.

Karo understood the significance of his project and believe that his efforts would include him within the chain of great composers in halakhic history.  In one of the first revelations, the magid tells Karo that the dynasty of writers that culled all of Torah She-Ba’al Peh, including R. Yehuda Ha-Nasi and Maimonides, support his endeavors (Magid, 7)

והא מימות משה רבן של כל הנביאים לא איכתיבא אורייתא דבעל פה עד יומי רבי מיומוי לא אתפרש כלא משנה עד דאתא רב אשי וליקט וחיבר ופירש ופסק. ומיומוי לא הות הלכתא אלא קצת מהלכות כגון הלכות פסוקות וכו’. עד דאתא הרי”ף והרמב”ם והרא”ש ופסקו הלכות בכוליה גמרא והרמב”ם הפליא לעשות למללא על כל אורייתא ומאז ועד השתא לא אתעורר חד ללקט מילי כולהו כמה דאתעוררת אתה

The example of R. Yehuda Ha-Nasi seems particularly significant since Karo’s revelations always took place during his study of mishna.  As a posek, one would expect Karo to primarily study gemara and its commentators and not the mishna, from which one cannot derive normative halakha.  Undoubtedly, the ability to study the realm of kodshim, which can only be manifested in Messianic times, influenced Karo.  Yet one wonders whether Karo heard the magid’s voice specifically while studying the text of the sage who first compiled all of Torah She-Ba’al Peh in a time of geopolitical uncertainty.  Only the study of his predecessor could strengthen him to accomplish his lofty goals of codification and unification.

The other sage on this list who composed an independent work that codified all of Torah She-Ba’al Peh, of course, was Rambam.[2] Karo decided to compose Bet Yosef as a commentary on the Tur, and not Mishne Torah, because the former included a variety of opinions while the latter represented the psak of one figure alone.  Nonetheless, Karo always discusses Rambam’s positions at length in Bet Yosef, and frequently quotes him verbatim in Shulchan Aruch.[3]

A comparison of these two codifiers and their larger projects might shed light on how to read Magid Mesharim.  Like Karo, Rambam engaged in both the realms of theology (in Rambam’s case, philosophy, in Karo’s case, kabbalah) and halakha.  As such, he devotes a significant portion of the Moreh Nevuchim to philosophically interpreting the Torah’s mitzvot (ta’amei ha-mitzvot).  While the impact of Rambam’s philosophy on his halakah is disputed amongst scholars, it is clear that he included elements of his philosophy in his code (e.g. Sefer Ha-Madda), yet espoused other philosophical ideas in his Moreh Nevuchim without embracing their halakhic implications in Mishne Torah.  In other words, Rambam represented a codifier whose works represent a careful (if not delineated) balance between philosophy and halakha.[4]

Magid Mesharim reveals that the balance between law and kabbalah similarly strained Karo.  As we have seen, Karo pioneered the mass use of the Zohar in his code, a project for which the magid extensively praises him.  Magid Mesharim also reveals some of the mystical considerations that Karo included in his rulings.  As Werblowsky noted (185-187), many of the magid’s references to Karo’s discussions in Bet Yosef only sought to encourage him, but did not impact his actual ruling.  For example, regarding the laws of ritual immersion, he writes (Magid 194),

פירוש נמי דמפרש הרמב”ם הרוב קושטא אינון ובההיא דצפורן שפרשת וכתבת שני דרכים חייך דקב”ה חייך בפלפולא דילך אבל אורחא בתראה הוא ברירו דמלה ומ”מ לא תמחוק קדמאה דיקריה דקב”ה סליק מיניה אף על גב דלאו קושטא איהו כיון דאיהו חריפא דוגמת נפחא דבטש בפרזלא ונצוצין מתנציצין לכל עבר

The Magid praises Karo for his learned deliberation on two different opinions yet affirms the divine validity of Karo’s final conclusion.  In this case, the magid represents a mere psychological promoter.

Yet in the same passage, the magid’s Kabbalistic teachings relate to the content of Karo’s psak.  Regarding the year-round use of a river as a mikveh, the magid forbids its use in the early spring (because of the excessive amount of “dripping water”) in accordance with the opinion of Rosh and R. Isaac of Dampierre and against Rabbenu Tam.  However, he justifies his opinion because this was the position of R. Meir of Rothenburg, whose pious death in prison made him pure and unblemished (Magid 196).  Karo does not always follow the ruling of R. Meir of Rothenburg.  This seems to be an example where Karo’s own desire for a “pure death” of martyrdom, well documented throughout the Magid (Elior 673-675), impacted his deliberations.  Yet the magid continues that post facto, one can rely on the opinion of R. Tam, and remarkably justifies this distinction based on Kabbalistic teachings (Magid 197).

ומהשתא תנדע דלכתחילה אין לטבול בנהרות באתר דמתפשטי מחמת גשמים משום דרמיז לחסד וגבורה דמסאבי סחרי לון, ומ”מ אי טבלה בדיעבד סלקא לה טבילה משום דאף ע”ג דמסאבי סחרי לון לית רשו להעלא ולקרבא לון כלל הלכך בדיעבד עלתה לה טבילה

In this remarkable passage, kabbalistic factors dictate direct halakhic implications.

This text, however, remains unique in its broad use of mystical considerations for direct legal consequences.  Moreover, as Werblowsky notes (173), the post factum leniency, while implied in the Tur, does not appear in Bet Yosef, and thus it remains unclear to what extent Karo fully embraced this distinction.  Nonetheless, the text remains revealing because it highlights one of Magid Meisharim’s larger goals of kabbalisticly interpreting halakha.  In many occasions, this represents a form of classical ta’amei ha-mitzvot.  Karo examines a mitzvah, such as yibum (Magid 261) or taharat metzora (226), and kabbalisticly interprets its significance.  On other occasions, however, the subject of interpretation is not a mitzvah of the Torah, but a particular law discussed by Chazal, such as mayim acharonim (281) or semichat geula le-tefilla, the prohibition of interruptions between birkot keriat shema and the Amidah.[5] Indeed, the magid’s elucidation of minutia in rabbinic halakha characterizes much of the uniqueness of the text.  The legal significance of the text stems from its mystical interpretations, not its halakhic innovations.  In Moreh Nevukhim, rabbinic Judaism confronted medieval philosophy, and a rationalistic divine law emerged.  In Magid Mesharim, the scholarly Karo confronts the magid’s world of symbolism and reveals a rich and learned Kabbalistic halakha.

Magid Mesharim as Journal of Spiritual Journey

Above all, however, Magid Mesharim represents a deeply intimate and meandering spiritual journey.  Unlike the systematic and thoroughly edited Moreh, Karo’s diary, published posthumously and possibly against his wishes, rambles loosely from topic to topic.  The revelations are not published chronologically, and seem to be incomplete (Benayahu 401-402).[6] Most importantly, the content itself does not seem to have undergone revision by Karo (presumably because it was not intended to be published), but rather stemmed from ecstatic revelations.  Much of the work details the magid’s exhortations to Karo for great spiritual punctiliousness, and never omits the most intimate of sins or harshest criticisms.[7] Mordechai Pachter has gone so far as to claim that one should read the book as a sefer mussar, full of rites of prayer, asceticism, and repentance.  This designation, however, might obfuscate the deeply personal nature of the exhortation, and Elior’s classification as an autobiographical spiritual journey seems more accurate.

The personal nature of the work helps explain the discrepancies between the magid’s halakha and Karo’s rulings in Bet Yosef.  In Shulchan Aruch (OC 597), for example, Karo ordains that one who fasts on the first day of Rosh Hashanah following a fateful dream must continue for their rest of their lives to fast on both days of the holiday.  The magid, however, seems to dictate that Karo should only fast on the first day after a he himself experiences a fearful dream (Magid 375).  A similarly small discrepancy exists regarding the requirement to review the weekly parasha (Magid 403, OC, Greenwald).  These types of inconsistencies, however, appear particularly natural when one recognizes the unpredictable nature of Karo’s revelations and their ad hoc recordings.  Karo similarly takes upon himself certain stringencies, such as not making any interruptions or skipping any letters in prayer (Magid 276), even though he allows both under certain circumstances in Shulchan Aruch (Halamish 89).  These exhortations, however, clearly exemplify individual punctiliousness aimed at unique spiritual ascension.[8] Halakhic fastidiousness and individual reproaches characterize mystical revelations and precisely serve to distinguish spiritual autobiographies from normative codes.

In his haskamah to the most recent edition of Magid Mesharim, Rabbi S. Deblinski of Bnei Brak quotes a tradition in the name of R. Chaim Volozhin that revelations from a magid do not happen in a vacuum.  Rather, they reflect the spiritual aspirations of the receiver that stem from the depth of his soul, and the revelations from above only help him to the extent that he desires it.  R. Yosef Karo desired to unite the worlds of halakha and kabbalah in a harmonious union.  Through both his codes and spiritual diary, we see how much he accomplished.

Works Cited

Benayahu, Meir, Yosef Behiri:  Maran Rebbi Yosef Karo (Hebrew), Jerusalem:  Yad Harav Nissim, 5751.

Elior, Rachel,  “R. Yosef Karo ve-R. Yisrael Ba’al Shem Tov,” Tarbiz 65:4 (5756), p. 671-709.

Halamish, Moshe, “Kabbalah Be-Pesikah Shel R. Yosef Karo,” Da’at 21 (5747-48), p. 85-102.

Karo, Yosef, Sefer Magid Mesharim Le-Maran Rebbi Yosef Karo, ed. Yehiel Bar Lev, Petah Tikva: no publisher listed, 1990.

Katz, Jacob,  Divine Law in Human Hands:  Case Studies in Halakhic Flexibility, Jerusalem:  Magnes Press, 1998.

Pachter, Mordechai, “Sefer ‘Magid Meisharim’ le-R. Yosef Karo Ke-Sefer Mussar,” Da’at 21 (5747-48), p. 57-83.

Ta-Shma, Yisrael, “Rebbi Yosef Karo Bein Ashkenaz Le-Sefard,” Tarbiz 59 (5750), p. 153-170.

Werblowsky, R.J. Zvi, Joseph Karo:  Lawyer and Mystic, JPS, 1977.

Gruenwald, Yekutiel (Leopold), Ha-Rav R. Yosef Karo U-Zmano, New York:  Feldheim, 1953.

Works Consulted

Tamar, David, “Dinim Ha-Meyuchasim Al Ha-Zohar Ve-Al Ha-Kabbalah Be-Shulchan Aruch U-Bet Yosef,” Sinai 115 (5755)

Arbel, Vita Daphna, Beholders of Divine Secrets, Albany:  SUNY, 2004

Urbach, Ephraim, “The Tradition about Torat Ha-Sod in the Tannaitic Period” (Hebrew), Studies in Mysticism and Religion Presented to Gershom G. Scholem on His Seventieth Birthday by Pupils, Colleagues, and Friends, ed. Ephraim Urbach et al, Jerusalem: Magnes Press, 1967.

[2] The works of Rav Ashi, Rif, and Rosh encompassed much or all of Torah She-Ba’al Peh, but were commentaries not written in a systematic, codifying manner.  Significantly, in his introduction to Mishne Torah, Rambam as well justified his bold codification of halakha by citing the precedent of R. Yehuda Ha-Nasi, who, like the Rambam and Karo, felt obligated to write his code because of geopolitical exigencies.

[3] Later in life, of course, he also wrote a commentary to Mishne Torah that provided the sources for Rambam’s rulings.

[4] There obviously exist many differences between Rambam and Karo.  The comparison merely serves as an analogy to help understand the legal significance of Magid Mesharim.

[5] Chalamish (87-88) notes that the magid’s exhortation of Karo for failing in this requirement deeply impacted him to the point where he repeats this law three times in Bet Yosef.  Yet as Chalamish himself ntoes, Karo introduces the din as a case when common practice has demanded punctiliousness (pashat ha-minhag”), and not that the law bears tremendous significance.  Once again, the influence of the magid’s ruling remains ambiguous.

[6] It is possible that the work is organized around the parshiyot, and not chronologically, because the publisher viewed its most significant contribution to be its novel interpretations of halakha.

[7] Including for suffering and sexual sins.

[8] Halamish (90) incorrectly attributes to the magid the extreme Kabbalistic position prohibiting conversion.  A careful examination of the passage (Magid 391) clearly indicates that Karo forbids conversion when the prospective convert desires to marry a Jew, as SA Y.D. 268:12 ordains.

Below is a rough English translation of the first page, which does not include some of the halakhic argumentation provided on the 2nd page of the original Hebrew.  For all scholarly and halakhic purposes, and purposes of citation, only the original Hebrew letter should be seen as the authoritative writing of Rabbi Rosen.

- Shlomo Brody

To Rabbi David Mescheloff, 21st of Elul 5771,09/20/11

Subject: Kosher Switch for Shabbat

In response to your request, I shall refer to the electric switch presented as the ‘Kosher Switch’, and to the website link you sent me, which explains the Halachic background, and even appends a long list of rabbis who have expressed a blessing or support.

The following is my position:

A. Truth be told, I was amazed how easy it is to receive endorsement letters from rabbis. It is apparent that one relies on the other, without taking personal responsibility, and with the fall of the foundation the entire house falls. I do not know what was explained to the rabbis that ’signed’; however it is clear to any reasonable halachic man that there is no way to permit prohibitions of Shabbat (D’Oraita or D’Rabbanan), not even with Halachic tricks or acrobatics.

B. The whole proposed story relies on the leniency of ‘Gramma’, which no consensus rabbi would permit L’chatchila for domestic and personal use.  All ‘Gramma’ or similar halakhic arrangements carried out by the Zomet Institute or Technology Institute in Jerusalem were permitted solely for medical, security and similar needs.  Even if they added to the ‘Gramma’ additional apparatuses, and even if there is a one in a thousand chance that the action will not occur, I have received from my rabbis (R. Shlomo Zalman Auerbach and R. Shaul Yisraeli) that this does not change in any way the halakhic status of regular ‘Gramma’ (just like Gramma D’Gramma and other artificial arrangements).

C. Even if the method of operation is non-active from the point of view of the agent, i.e. because he merely removes the “preventing element,”  Rabbi S. Z. Auerbach and others wrote that this remains forbidden and is treated like it was done directly by the person, since the action occurs immediately after the human intervention/action.   Even if the result comes only after a delay caused by an additional factor, this is plain Gramma, which is still not permitted L’chatchila.

D. And here is the main part of my remarks: Yesterday I went to my teacher and rabbi HaGaon Rabbi Yehoshua Neuwirth, Shlita, and I asked him whether he permitted to use this switch to activate electricity on Shabbat for the purposes of Oneg Shabbat, etc… He was really shocked and said he never permitted that.  When I showed him the endorsement letter, he added in his handwriting: “Only for medicine and security” (see photo in attached Hebrew article).   Rabbi Avigdor Nebenzahl Shlita, who signed a similar letter, also told me yesterday that he does not recall ever signing anything like that, and expressed the opinion that there is no place for this and was puzzled about the whole thing.

I suppose that whoever managed to get the signatures of important rabbis ’sold’ them an invention that is a kind of a complex Gramma used for the purpose of medicine or security, and succeeded in skipping this condition when they signed.

E. With regard to the the claim, written in their accompanying halachic responsum, that it is permitted to use this Gramma switch to minimize the prohibition of those who willfully the violate the Shabbat, we have never heard of such rabbis who permit this. I am sure that those who ‘agreed’ did not see this argument, and this is an argument that should not be stated.

With prayer L’Ktiva Vachatima Tova to all of Israel,

Rabbi Yisrael Rosen, Head of the Zomet Institute

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.

In the past several years, Rabbi Michael Broyde has engaged in online discussions regarding what he considers a limud zechut (post facto justification) for women not to cover their hair.  These discussions culminated in a masterful article by Rabbi Broyde, “Hair Covering and Jewish Law: Biblical and Objective (Dat Moshe) or Rabbinic and Subjective (Dat Yehudit)?”, Tradition 42:3, Fall 2009.  (This article is available for free downloading here)

Included in Rabbi Broyde’s limud zechut is a citation of the work Chukei Nashim (חוקי נשים – Laws for Women) by Rabbi Yosef Haim (1832-1909, Baghdad), author of Ben Ish Chai and one of  the leading poskim and kabbalists of the Middle East during the last half of the 19th century and the early part of the 20th century.  The stature of the בן איש חי as one of the preeminent poskim is indisputable and gives his position a measure of legitimacy.  Having recently rediscovered the works of the Ben Ish Chai in the context of a research paper on another topic, I found this alleged limmud zechut difficult to believe, especially given his general stringency regarding these matters and his kabbalistic leanings. I was therefore not satisfied to let R’ Broyde “read into” a particular phrase of the Ben Ish Chai a radical opinion, even if just as a limud zechut, and therefore went to examine the actual source itself.

Origins of Chukei Nashim

In the common edition of Chukei Nashim (available here),  Rabbi Yosef Haim (as cited by R’ Broyde) writes as follows (English translation provided below):

והביטו הנשים על אנשי אירופה, מנהגם לא להסתר מפני זרים, ובכל זאת מלבושיהם מסודרים, לא מתגלה מגופם, רק פניהם וצוארם, כפות ידיהם וראשם. ואמת נכון מגולה שערם, ולפי הדין שלנו אסור הדבר, אבל יש להם איזה התנצלות, כי אומרים לא נתיישב המנהג הזה אצל כל נשותיהם, מבנות אומתם וחוץ לאומתם, נעשה גילוי השער, כמו גילוי פניהם וכפות ידיהם, ואינו גורם הרהור אצל האנשים, במבט עיניהם                                      

The quote cited by Rabbi Broyde is found in the sefer חוקי נשים, published in 1950 by the Machon Ben Ish Chai. What R’ Broyde fails to mention in his bibliography is that the sefer חוקי נשים was not written by the Ben Ish Chai.  It is, rather, Rabbi Ben Zion Mutzafi’s[1] translation of the Qanun-al-Nissa (קאנון אל נסא), published by the Ben Ish Chai in 1906 and written in Judaeo-Arabic.[2] Much like the Judaeo-Arabic translation of the Ten Commandments that is attributed to Saadia Gaon and other Arabic writings, the Qanun is written in a poetic metre/rhyme that is lost in translation. 

Changes in the Hebrew Edition

I had suspected that the original version would prove Rabbi Mutzafi wrong or at least add context to his quote.  In fact, I proved to be wrong.  What I found was that (1) rather than it be melamed zechut, the original paragraph was more of an endorsement of the practice of uncovering hair than Rabbi Mutzafi allows; and, (2) the final line of the paragraph was omitted from the Hebrew translation. 

The relevant section (available here) of the Qanun reads:

ושופו נסוואן אהל אירופא. סלוכהום מא יתכבון מן אל גרבא. ומע האדה חוואסהום מרתבא. מא יביין מן גסמהום. גיר פקט וגהום וחלקהום. וכפופהום וראסהום. וצחיח מכשוף שערהום. ומוגב דייאנתנא לם יגוז הל מסלך להום. לאכן אכו פרד עצר ענדהום. יקולון מא זאל האדה מסלך גמיע נסוואן בלאדהום. במלתהום וכארג מלתהום. סאר שוף שערהום. מתל שוף וגהום ואידיהום. מא בקאלו שעשעה ענד אל רייאגיל. בשוף עינהום. האדא כלאמהום. אלדי יגאוובון עלא האדה מסלכהום. ומא ענדנא גוואב נגרח להאדא גוואבהום

What follows is a side by side comparison of the relevant paragraph, in translation: 

What is clear is that the בן איש חי ’s opinion is more than a limud zechut.  He firmly establishes as incontrovertible the sociological nature of the obligation to cover hair.  While not alone in the Sephardic world, the existence of such an opinion by a posek and mekubbal of his stature is, indeed, remarkable.  Coupled with his well-known lenient views on abortion[7] and not so well known lenient views on women’s Torah study[8], such a view is noteworthy.

Changes in the English Edition

Recently, an English translation of the Qanun, published by Salem Books of Jerusalem, was prepared by Moshe Schapiro and edited by S.D. Kaplan.  Whereas the publisher does not indicate whether the translation was based on the original Qanun or Rabbi Mutzafi’s Hebrew translation, it bears a closer resemblance to the latter.  Nonetheless, the English translation is glaringly divergent with the first and last sentence of the relevant paragraph (in bold below) not found anywhere in Rabbi Mutzafi’s translation, let alone the original.  The additional sentences are seemingly aimed at further minimizing the scope of the Ben Ish Hai’s lenient treatment of the matter.  The English translation reads (emphasis added): [9]

One should not think that this law [to dress modestly] is only binding in Islamic countries, where custom dictates that women must not be seen by strangers.  Even in Europe, where it is acceptable for women to speak to strangers, Jewish women, nevertheless, dress in accordance with the above-mentioned guidelines.  And although it is true that many of their women do not cover their hair, which is strictly prohibited according to Torah Law, they claim in their defense that uncovered hair is not considered any more immodest than the hands or the feet, since it does not cause Jewish men in Europe to think unclean thoughts.  Thus, we see that even those who are lenient about covering the hair agree in principle that a woman must dress modestly, and that other parts of her body must remain covered.[10]

Jacob Sasson is an attorney residing in New York City.

[2] A copy of the Qanun has been digitized by the JNUL and can be accessed here.

[3] It should be noted that in various presentations (both print and online) of his argument, Rabbi Broyde has slightly changed his English rendition of the text. 

[4] The word יתכבון is related to the Hebrew word נחבא. 

[5] The Hebrew reading “lo nityashev” may have created difficulty for Rabbi Broyde.  On the one hand, “this custom” must mean the custom to go with hair uncovered as this is the custom under discussion.  Yet, it makes little sense to say that the custom to go with hair uncovered was not accepted by the general population.  That would run contrary to the argument put forth.  Hence, the different translations of the Mutzafi text.  The Arabic portion reads: Ma Zal hada…. The Arabic ma plays a role similar to the Hebrew lo which may have caused Mutzafi to translate it as “lo nityashev“.  Nonetheless, the expression ma zal literally means, “has not ceased”, or colloquially, “yet, still”.

[6] The last line, explicitly permitting the practice, reads in the original:

האדה כלאמהום אלדי יגאוובון עלא האדה מסלכהום ומא ענדנא גוואב נגרח להאדא גוואבהום

[7] See Rav Pealim (1: EH4) as well as the Tzitz Eliezer (13:102).

[8] See the recently published Ilan H. Fuchs, “‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case,” in Leib Moscovitz, ed., The Manchester Conference Volume [=Jewish Law Association Studies XX] (Liverpool: The Jewish Law Association, 2010), 43-74, in which he cites the Ben Ish Hai’s permissive attitude toward women studying Talmud, noting how his own grandmother studied 18 chapters of Mishnayot a day!

[9] Rabbi Yosef Chaim, Laws for Women, translated into English by Moshe Schapiro, edited by S.D. Kaplan.  Published by Yeshoua Salem [sic], Salem Books, 108 Jaffa St. 5771 – Jerusalem.  Page 96.  Telefax: 972 2 5389176

[10] Parenthetically, for another example of  censorship of the Ben Ish Hai, see Rabbi Yaakov Hillel’s Vayashov Hayam (1:14), in which he advocates for the censorship of a particular responsum of the Ben Ish Hai (Rav Pealim helek 4 kuntras Sod Yesharim siman 5).  Note, however, Or Lesion 3 (17:6) by the late Porat Yosef Rosh Yeshiva, Rabbi Ben Zion Abba Shaul, who cites the responsum approvingly.

The Use of Anesthesia in Circumcision:  A Re-Evaluation of the Halakhic Sources by Edward Reichman and Fred Rosner

Hypospadias and Circumcision by Rabbi J. David Bleich

The Making of Metzitzah – 1972 by Yehuda Pesach Shields

- Shlomo Brody

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.

 Recently Rabbi Dov Linzer published a statement (Appendix A), cosigned by many other rabbis, on the subject of halakhah and braindeath.  Agudath Israel of America’s office subsequently issued an unsigned statement (Appendix B) that took very sharp issue with Rabbi Linzer’s statement.  I am party to neither statement, nor do I intend in this piece to comment on the larger brain death controversy, although I have orally – and will shortly in writing – address the substance of the brain death issue.  Instead, I will discuss the methodological issues raised by this dispute, which are worthy of exploring in their own right.[1]

My goal here, therefore, is to frame the issues in a way that makes both sides as comprehensible as possible, and perhaps to explain where conflicts of sensibilities create flashpoints that prevent each side from understanding the other.

1.  Rabbi Linzer’s Statement

Rabbi Linzer’s statement, as I understand it, is compatible with the following procedural arguments:

A.

1) Some highly significant poskim, as well as the current Av Beit Din of the RCA, have ruled that one or another standard of neurological death can be recognized by Halakhah.  Their authority is sufficient to prevent an outside observer from declaring that someone acting on the basis of such a ruling is acting non-halakhically.

2) Bracketing the question of which position is correct, the non-metaphysical (e.g. utilitarian) consequences of acting on the proposition that brain death is a halakhically sufficient criterion for death are superior to the consequences of acting on the opposite assumption.

3) Therefore, rabbis who do not see themselves as competent to decide this issue on its formal halakhic merits, when consulted on the issue by laypeople, should either indicate their utilitarian preference for the braindeath position, without framing that as a psak, or else encourage those laypeople to consult poskim who decide the issue in that direction.

B.

1) It is possible to make a formal halakhic argument that permits the receiving of organs taken from brain-dead patients even if one formally forbids the removal of such organs.

2) In practice, if not in principle, this would mean that the outcome of halakhah would be that halakhic Jews would allow their lives to be saved through the killing of others, but not allow themselves to be killed to save others in the identical circumstances.

3) Furthermore, most major organ donations are only possible at present if one accepts the brain death standard.  Therefore, if broadly accepted, this argument would lead to the halakhic community receiving many more organs than it donated.  This would generate at least the appearance that we considered our lives more valuable than those of others.

4)  Because of both 2) and 3), we must reject 1) in practice, regardless of its formal plausibility.  This rejection can be grounded either in:

a) a claim that when a formally plausible halakhic argument leads to a morally untenable outcome, one must adopt alternative plausible halakhic arguments if they exist, or

b) a claim that while the argument may be correct if evaluated in the abstract and/or in every individual case, following it in practice as a communal policy would be a violation of chillul Hashem and/or run the risk of generating violent anti-Semitism (mishum eivah).  These principles are overriding with regard to this issue. 

1.  Agudath Israel’s Responses

Agudath Israel’s responses, as I understand them – possibly somewhat charitably – can be reframed as follows:

A. 

1) Rabbis and laypeople alike can only consider practical consequences as a halakhic factor within the framework of halakhah.  If one cannot formulate those consequences in formal halakhic terms, they are halakhically irrelevant.

2) Therefore, if one is faced with a halakhic question which one is incapable of resolving on the merits (either as a rabbi or as a layperson), one’s only legitimate options are to refer the question either to the greatest available legal decisor (posek), or else to the decisor to whom one usually asks legal questions.  One is not entitled to consider the merits of the question at all when considering where to refer the question.

B.

1) Several great decisors have in fact adopted the position that one can receive organs taken from brain-dead patients even though one would not be allowed to agree to the donation of one’s own organs in the reverse situation.

2) It is unacceptable to assert that following any halakhic position adopted by a great posek, let alone the majority of great poskim, is immoral.

1. Who Should Make The Decisions?

I have the following brief glosses and comments on these issues, which I hope to address more fully elsewhere.

 A key issue here is the locus and structure of halakic authority.  Here are two possible models:

A.  

The ideal mode of halakhah is that all decisions are made by the best decision maker = greatest posek (legal decisor).  For practical reasons, that posek may choose to delegate or leave residual authority in the hands of lessers.  However, such authority is immediately withdrawn once that decision maker has addressed an issue.

Accordingly, the first task of lesser or non-poskim when facing halakhic decisions is to determine whether a greater posek has addressed the issue.  If multiple greater poskim have addressed the issue, and disagreed with one another, the remaining issue is purely procedural – which greater posek has jurisdiction.  No lesser figure has any right to address the substance of any issue which has been addressed by one or more greater figures.

B.

The ideal mode of halakhah is that all decisions are made by autonomous individuals.  This ideal is constrained in practice by the need for some issues to be addressed collectively, and by the halakhic incompetence of many individuals.  However, when the formal halakhic issues have been addressed by competent scholars, and the results can plausibly be seen as intellectually inconclusive, and there is either no need or no possibility for collective action, decision making reverts to the autonomous individual.

I note that the first model loses much of its attractiveness if one does not presume that great Torah scholarship and formal halakhic decision making skill are directly correlated with excellent moral intuition and pragmatic judgment.  On the other hand (my thanks to my dear friend Dov Weinstein for making this point well), the second model significantly devalues halakhic scholarship as a religious goal for individuals, and is likely to produce a largely ignorant community with a small and cloistered Torah elite, whose products are generally seen as irrelevant.[2]   

2) 

Further Ruminations

1) One could resolve the substantive dispute between the two statements by asserting that the relevant gedolei haposkim (great legal decisors) only allowed the reception of organs taken from brain-dead patients in isolated individual cases.  Those poskim might agree with Rabbi Linzer’s practical conclusion were the question made one of communal policy, and particularly were it to become a question of publicly known communal policy.

2)  It is worth considering whether the morality or immorality of a given halakhic decision rests exclusively on its outcomes, on its reasoning, or on a combination of the two.  For example – one might reach the take-but-don’t-donate position on the ground that most organs will be taken from non-Jews by non-Jews, and

a) Jews have no obligation to sacrifice a chance at survival so as to avoid entanglement in intra-Gentile violence, or rather

b) Gentiles have the autonomous halakhic right to define death as they please, regardless of how halakhah defines it for Jews, and therefore Jews have no right to impose the halakhic definition on Gentile transplant surgeons removing organs from Gentiles.

Should our moral judgment of the same practical decisions change, depending on whether the actor offers the first or second rationale?

3)  I think it is clear that throughout history, great poskim have disagreed with each other in strong terms, and framed their disagreements in moral as well as intellectual terms.  In that sense, I strongly reject the claim that all rulings of great poskim lead to outcomes that are objectively morally acceptable; it seems to me that the great psokim of the past at least generally thought otherwise.  Accordingly, I think that an individual who acts immorally on the basis of such a pesak may be immoral b’shogeg (accidentally), or even b’ones (as the result of force majeure), but their action remains immoral regardless.

4)  We live in a time when, ba’avonoteinu harabim it is not difficult to produce examples of talmidei chakhamim with significant moral blind spots, with those blind spots affecting not just their personal behavior but the content of their Torah.  One can in theory deny this by arguing tautologically –

a) since they are great scholars, it follows that their actions cannot be immoral, and thus our evaluations must be incorrect, or else

b) since our evaluations of their actions are correct, they must in fact not be great scholars.

But I at least cannot make this argument with integrity.  I furthermore contend that to completely delegate moral judgment – to say naaseh venishma unconditionally to another human being – is to betray the core responsibility of being tzelem Elokim and ben berit.  This is true with regard to all issues, and independent of whether one sees the central moral issue regarding brain death as focused on euthanasia, lifesaving, particularism, or reciprocity. 

APPENDIX A

We, the undersigned Orthodox rabbis and rashei yeshiva affirm the following principles with regard to organ donation and brain stem death:

First and foremost, the halakhic definition of death is a long-standing debate amongst gedolei haposkim, and it should not be forgotten that, among others in the U.S. and Israel, the former Chief Rabbis of Israel, R. Avraham Shapira and R. Mordechai Eliyahu, zikhronam li’vracha, and, yibadel li’chayim, Rav Gedalia Dov Schwartz, the av beis din of the Beit Din of America, are proponents of the position that brain stem death constitutes the halakhic definition of death.

Both positions, that brain stem death constitutes death, and that only cardiac death can define death, are halakhically viable. This remains so even in light of the findings of the President’s Council on Bioethics in 2008.

With regard to this long-standing debate, and its critical implications for organ donation, we affirm our position that:

1. Brain stem death is a halakhically operational definition of death.  As such, organs may be removed for transplantation under strict halakhic supervision and guidance.

2.  In light of the serious moral issues and profound lifesaving potential presented by the possibility of organ donation, we strongly recommend that rabbis who are rendering decisions for their laity on this matter demonstrate a strong predisposition to accept the halakhic view of the gedolei haposkim who define the moment of halakhic death to be that of brain stem death, or that they refer their laity to rabbis who do so. 
 
3. Even as we adopt the brain stem definition of death, we emphasize that the greatest of care is needed in applying this definition in practice, and that safeguards are necessary to insure the organ removal is done in accordance with halakhic principles.  Each person should consult with his or her rabbi and appropriate medical professionals to understand how this determination of death is made, and how to ensure that the appropriate procedures will be in place.

4. Rabbis and laity who follow the position that brain stem death is not considered to be halakhic death should be aware that it is medically possible to donate certain body parts after cardiac death and that it is a mitzvah to do so. Thus,

    a. It is both halakhically permissible and desirable and ethically mandated for every Jew to be an organ donor consistent with his or her definition of halakhic death.

    b. Rabbis and community leaders must do all in their power to communicate this responsibility to the community, and to encourage all Jews to sign organ donor cards, in line with their halakhic definition of death.

5.  To adopt a restrictive position regarding donating organs and a permissive position regarding receiving organs is morally untenable.  Such an approach is also highly damaging to the State of Israel, both internally and in regards to its relationship with the larger world, and to the Jewish People as a whole.  This approach must thus be unequivocally rejected by Jews at the individual and the communal level.

Appendix B

This statement appeared in today’s HaModia:

12 Shevat, 5771
January 17, 2011

Statement from Agudath Israel of America

The recent “Rabbinic Statement Regarding Organ Donation and Brain Death” signed by several score “Orthodox rabbis and rashei yeshiva” is decidedly unorthodox in its approach to the halachic process. In fact, it makes a mockery of that process, by asking other rabbis to accept one particular halachic view regarding a complex issue pertaining to matters of life and death on the grounds that the times, in the signatories’ estimation, require a certain result.

The statement, signed by congregational and campus rabbis and chaplains, duly acknowledges the halachic controversy over “brainstem death” – the diagnosis that a patient’s brainstem has irreversibly ceased functioning. But it goes on to note that forbidding the removal of vital organs from “brain dead” patients – the considered opinion of major halachic authorities of past years and the present – would have “critical implications for organ donation.” And so, the statement’s signers “strongly recommend that rabbis who are rendering decisions for their laity on this matter demonstrate a strong predisposition to accept” the alternative view. Or, if their consciences do not allow them to do so, that they at least “refer their laity to rabbis” who have no such reservations.

For anyone, rabbi or layman, to decide that a perceived outcome should determine what halachic approach to take is something usually associated with Jewish movements outside of Orthodoxy.

Organ donation can and does save lives. Halachic authorities have ruled that, under certain circumstances and with proper safeguards, it is permissible and indeed laudable to be a live donor, and to bequeath organs after death. But defining death is a crucial halachic matter, not one to be “decided” on the basis of what some consider a societal need.

Compounding the statement’s offensive embrace of a halachic position based on an extra-halachic rationale is its derision of those who take “a restrictive position regarding donating organs and a permissive position regarding receiving organs.” That halachic position, held by a majority of major poskim today, is derided by the statement as “morally untenable,” and “must thus be unequivocally rejected by Jews at the individual and the communal level.”

No. What must be unequivocally rejected by Jews, at least those who care for the honor of Torah, are attempts to manufacture “halacha” to personal specifications and the disparagement of true halachic authorities.

[2] It is likely worth correlating these models with Yitro’s suggestion, and Mosheh Rabbeinu’s somewhat altered implementation, of a tiered judicial system.  An underlying issue here is why, if one believes that the formal halakhic conversation on this issue is indeterminate, one should not simply apply the formal category of safeik (legal uncertainty) and follow the procedural rules generated by that category.  I cannot treat this issue in depth here, but an analogy may be useful.  The rule “halakhah kedivrei hameikil b’eiruvin” (the law always follows the lenient side of controversies with regard to certain legal constructions) cannot be applied in advance, or else the lenient side wins all controversies simply by existing.

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.

To a certain extent, this claim echoes the argument made by Dr. Joshua Kunin in a 2004 Tradition article (cited by the report).  Rabbi Dr. Edward Reichman, however, wrote a cogent response (not cited by the report) to this claim, in which he noted that for supporters of organ donation, the key factor is the irreversible cessation of spontaneous respiration, which can exist even if there remain neurological activity.  As he writes (emphasis added),

Dr. Kunin’s article addresses this last point, citing medical literature that despite the diagnosis of brain death, there is still a physiological connection to the brain, and furthermore, the brain does not completely disintegrate, rather, some anatomic integrity is preserved. I would not argue against the scientific validity of this literature. The research appears scientifically sound, and as a whole, irrefutable. The substantive issue in this case is the relevance of these studies to the validity and perpetuity of the decisions of R. Feinstein and the Israeli Chief Rabbinate to accept brain death as halakhic death.

As mentioned above, it is clear from the text of R. Feinstein’s responsum that there is one major criterion for the determination of death: irreversible cessation of spontaneous respiration. Is this criterion still true today in the brain dead patient, based on current science? The answer is a categorical yes. While varying percentages of patients may have ongoing, recorded physiological function or brains that remain partially anatomically intact, ALL (100%) of these patients have no spontaneous respiration, and if disconnected from the ventilator, NONE (0%) of these patients will breathe spontaneously. While there are no universally accepted and uniformly applied clinical criteria for the determination of brain death, all definitions include irreversible cessation of independent respiration as an absolute requirement.

Does the new medical literature affect the corroborative value of brain death testing in the case of traumatic injury to determine with medical certainty the death of the patient? While R. Feinstein does not explicitly address this, it can be argued that the requirement for physiological decapitation is relevant only to the functions that preserve or define life. According to R. Feinstein, respiration is the primary function that defines life, as established in Talmud Yoma (85a). With respect to respiration, there is indeed physiological decapitation in the brain dead patient. There is complete and utter dissociation of the brain and the body with respect to the function that halakhically matters. Granted, there may be persistent physiological function, and as Dr. Kunin correctly asserts, “some of the homeostatic mechanisms of the brain in brain dead patients may continue to function for long periods.” However, this function is of no halakhic significance and may be the modern analogue to the tail of the lizard. The sole purpose of the protocol is to confirm irreversible cessation of respiration, not to verify that all possible measurable physiological functions have ceased. These functions, while clearly present, are of no halakhic consequence.

To read Rabbi Dr. Reichman’s article, click here.

The report also includes a discussion about Rashi’s interpretation of the central Talmudic passage (Yoma 85a).  For a fascinating discussion about how to properly understand this Rashi – in which it becomes clear that Rashi believed that heartbeat was a sign of respiration – see Rabbi Reichman’s 1993 article in the Torah U’Madda Journal, “The Halakhic Definition of Death in Light of Medical History,” Volume 4 (found here), p. 155-156. 

- Shlomo Brody

G-d created the human in His image

In His image He created him

Male and female He created them

G-d blessed them

G-d said to them: Be fruitful and multiply; fill the land and subdue it; dominate the fish of the sea and the birds of the heavens, and every wild thing that swarms on the land[1].

 How can the anonymous Mishnah, and eventually the Halakhah, contend that the obligation of procreation applies to men and not to women?  Rabbi Yochanan ben Berokah’s incredulous response to the anonymous Mishnah: “Scripture says about both of them “G-d blessed them, saying to them: ‘Be fruitful and multiply . . . ‘!?” seems compelling.  This question has generated extensive discussion for at least 2000 years (see the Talmudic discussion appended below with translation) including at least one contemporary book.  Explanations of the Halakhah take two essential forms: literary and ideological.  That is to say, some try to demonstrate that the Halakhah really fits well into the verse, whereas others seek to find a rationale for the Halakhah that justifies reading the verse implausibly.

Our focus this week is on the approach of Rabbi Meir Simkhah of Dvinsk (1843-1926) in his Biblical commentary Meshekh Chokhmah (hereafter MC), appended with translation at the end of the essay.  He offers a reading and two rationales, all of which are noteworthy.  We’ll discuss the reading first and then the rationales.

MC notes that human beings are blessed/commanded to procreate three separate times in Genesis: 1:28, 9:1 and 9:7, and 35:11.  Of these, the first two are grammatically plural, whereas the third is singular.  This by itself is not at all troubling, as the third is spoken directly to an individual Yaakov. 

Rav Yosef (Yebamot 65b) claims that 35:11 is the source for the exclusion of women; he does not tell us how to reconcile this with 1:28 or 9:1-7.  Meshekh Chokhmah reasonably assumes that Rav Yosef sees 35:11 as superseding 1:28.  The remaining difficulty is 9:1-7, and here MC makes the sharp observation that the addressees there are “Noach and his sons”, specifically, with no mention of their wives, even though the wives have appeared in the previous lists of humans leaving the ark.  MC therefore concludes that between 1 and 9 the commandment was narrowed to males.  35:11 is singular because it addresses a single male, Yaakov, whereas 9:1-7 remains plural since it is addressing multiple males, Noach and his sons.

I have a few points that may advance this analysis.  Genesis 1:22 also contains a command “(you plural) be fruitful and multiply”, to various creatures, but at that point no mention has been made of creature genders.  Moreover, the plural of that command likely refers to only some of the nouns included in the antecedent; the command is to be “fruitful and multiply” in the water, whereas the antecedent nouns include both water creatures and birds.  Indeed, the following phrase specifically instructs birds to multiply in the land[2].  Similarly, then, the command to human beings may refer to the species, without taking cognizance of gender, and the antecedent of the plural pronoun in 1:28 may be “adam-human” alone, not “zakhar unekeivah – male and female”. 

If this argument is reasonable, MC can argue that 1:28 is deliberately ambiguous; while in immediate context it most likely applied to both genders, it was written so as to allow for a later understanding as limited only to males.

Having established that the halakhic reading is reasonable – if one assumes a progression – we are left to explain why the progression happened.  MC’s two suggestions are: 

1. Childbirth was originally painless, and therefore the commandment applied to men and women equally.  Chavah’s sin generated as punishment the pain of childbirth, with accompanying risk to life.  G-d does not impose unreasonable demands on His creatures, and demanding that women experience that pain, and take that risk, would be unreasonable.  Therefore He removed the obligation from women.
2. It is against human nature to reject the beloved in favor of the unloved, and humans generally marry the ones they love.  If women were obligated in procreation, then Halakhah would require them to divorce their husbands after ten years of childless marriage.  This would be unreasonable.  Since polygamy is permitted, this argument does not apply to men, who can marry an additional wife after ten childless years.  MC here is building on the halakhic tradition’s decision not to make men divorce their childless wives and marry a more fertile woman when polygamy is impossible or, as in our day, halakhically proscribed by the decree of Rabbeinu Gershom.

The second suggestion leaves open the question of why polygamy is permitted and polyandry forbidden; Deborah Klapper notes that one might argue in reverse that polygamy is permitted only because of the command to procreate, so as to avoid forcing men to divorce their childless wives[3].  We can also ask whether we are using a cannon to shoot a flea.  Why not maintain the commandment but eliminate the consequence, in other words allow childless women to remain married to the men they love and simply pray for a better outcome? 

            It is the first suggestion that we will focus on, however.  Let’s begin by noticing that this is not an offhand exegetical insight, but rather takes on the character of an extended halakhic argument.  MC marshals a large set of halakhic materials to establish that a proposed Halakhah must meet the standard of “Her ways are ways of Pleasantness,” and that imposing childbearing would fail that standard.  It seems to me that he is not arguing that the text compels his reading, but rather that the standard requires the adoption of such a reading.

            MC also seems to shift back and forth as to whether it is the pain, the risk, or the combination of pain and risk that generates the conclusion that procreation cannot be mandatory for women.  In our day the risk is much less, and anesthetics often have significant impact – should that affect the halakhah?  In practice it is very difficult to move halakhah that dramatically, from one side of a Tannaitic dispute to another[4].

            Another halakhic challenge to MC’s suggestion is that some medieval authorities suggested that women are in fact rabbinically obligated to procreate[5]. 

            I want here to play out what I see as a reasonable halakhic implication of MC’s position, in the area of birth control[6]. 

If G-d cannot demand that women have children, kal vachomer men cannot demand this of them.  Indeed, no one suggests that a woman is obligated to marry a man so as to enable the man to fulfill his obligation of procreation.

Therefore, it cannot be prohibited for women to use birth control.[7] 

            When engaged couples come to ask rabbis “the birth control question”, then, it is proper to frame the issue as follows:  Of course the woman can use (some types of ) birth control.  The real question is whether the man can marry her in the knowledge that she will practice contraception[8].  In this perspective, the proper halakhic calculation is whether not marrying her, or divorcing her, is likely to improve his chances of being in a procreative marriage over time.  Generally, I suspect, the answer is no.

            Of course, this discussion only addresses the question of coercion.  MC makes clear that procreation is a good, and rabbinic literature is replete with gender-neutral encomia to procreation.  Furthermore, some rishonim believe that women are rabbinically obligated to procreate[9], and others construct a quasi-obligation to participate in the mitzvah, recognizing that men cannot (or at least in their time could not) fulfill it without women’s participation.  In other words, saying that a woman may use (some types of) contraception – even saying that she has the right to such use – does not imply that she ought to.  Furthermore, I tend to adopt the pastoral maxim that “If you’re not ready to greet children with joy, don’t have sex”, since no means of contraception is perfectly reliable.     

[Editor's Note:  For a sampling of various halakhic opinions on birth control, see here, here, and here.]  
 

תלמוד בבלי מסכת יבמות דף סה עמוד ב

\מתני’\

האיש מצווה על פריה ורביה, אבל לא האשה;

רבי יוחנן בן ברוקה אומר: על שניהם הוא אומר (בראשית א’) “ויברך אותם א-להים ויאמר להם [א-להים] פרו ורבו …”!?

\גמ’\

מנא הני מילי?

אמר ר’ אילעא משום ר’ אלעזר בר’ שמעון: אמר קרא: (בראשית א’) “… ומלאו את הארץ וכבשוה” – איש דרכו לכבש, ואין אשה דרכה לכבש.

אדרבה!? וכבשוה תרתי משמע!?

אמר רב נחמן בר יצחק: “וכבשה” כתיב.

רב יוסף אמר מהכא: (בראשית ל”ה) “אני א-ל ש-די פרה ורבה”, ולא קאמר ‘פרו ורבו’.

ואמר רבי אילעא משום ר’ אלעזר בר’ שמעון: כשם שמצוה על אדם לומר דבר הנשמע, כך מצוה על אדם שלא לומר דבר שאינו נשמע.

רבי אבא אומר: חובה, שנאמר: (משלי ט’) “אל תוכח לץ פן ישנאך; הוכח לחכם ויאהבך”.

וא”ר אילעא משום רבי אלעזר בר’ שמעון: מותר לו לאדם לשנות בדבר השלום, שנאמר (בראשית נ’) “אביך צוה וגו’ כה תאמרו ליוסף אנא שא נא וגו’”.

ר’ נתן אומר: מצוה, שנאמר (שמואל א’ ט”ז) “ויאמר שמואל: איך אלך? ושמע שאול והרגני! וגו’”.

דבי רבי ישמעאל תנא: גדול השלום, שאף הקדוש ברוך הוא שינה בו, דמעיקרא כתיב (בראשית י”ח) “ואדוני זקן”, ולבסוף כתיב “ואני זקנתי”.

“רבי יוחנן בן ברוקה אומר” –

אתמר: רבי יוחנן ור’ יהושע בן לוי:

חד אמר: הלכה כרבי יוחנן בן ברוקה;

וחד אמר: אין הלכה כרבי יוחנן בן ברוקה .

. . .

מאי הוה עלה?

ת”ש: דאמר ר’ אחא בר חנינא אמר ר’ אבהו אמר ר’ אסי: עובדא הוה קמיה דרבי יוחנן בכנישתא דקיסרי, ואמר: יוציא ויתן כתובה.

ואי ס”ד לא מפקדה, כתובה מאי עבידתה?!

דלמא בבאה מחמת טענה,

כי ההיא דאתאי לקמיה דר’ אמי.

אמרה ליה: הב לי כתובה!

אמר לה: זיל, לא מיפקדת.

אמרה ליה: מסיבו דילה, מאי תיהוי עלה דהך אתתא?

אמר: כי הא ודאי כפינן.

ההיא דאתאי לקמיה דרב נחמן.

אמר לה: לא מיפקדת!

אמרה ליה: לא בעיא הך אתתא חוטרא לידה ומרה לקבורה?

אמר: כי הא ודאי כפינן.

יהודה וחזקיה תאומים היו – אחד נגמרה צורתו לסוף תשעה, ואחד נגמרה צורתו לתחלת שבעה.

יהודית דביתהו דר’ חייא הוה לה צער לידה.

שנאי מנא ואתיא לקמיה דר’ חייא.

אמרה: אתתא מפקדא אפריה ורביה?

אמר לה: לא.

אזלא, אשתיא סמא דעקרתא.

לסוף איגלאי מילתא.

אמר לה: איכו ילדת לי חדא כרסא אחריתא,

דאמר מר: יהודה וחזקיה אחי פזי וטוי אחוותא.

ולא מיפקדי?! והאמר רב אחא בר רב קטינא א”ר יצחק: מעשה באשה אחת שחציה שפחה וחציה בת חורין וכפו את רבה ועשאה בת חורין?!

אמר רב נחמן בר יצחק: מנהג הפקר נהגו בה.

Talmud Yebamot 65b

Mishnah

The man is commanded regarding fruitfulness and multiplication, but not the woman;

Rabbi Yochanan ben Berokah says: Scripture says about both of them “G-d blessed them, saying to them: ‘Be fruitful and multiply . . . ‘!?

Talmud

What is the Biblical source of Rabbi Yochanan ben Berokah’s position?

Said R. Ilaa in the name of R. El’azar son of R. Shimon: Scripture says “. . . and (you plural) fill the land and (you plural) subdue it” – it is the way of the man to subdue, and not the way of the woman to subdue.

Just the opposite should be derived from that clause, as it says “(you plural) dominate it”!?

Said Rav Nachman bar Yitzchak: It is written without the vav for the plural (although pronounced with).

Rav Yosef said: From here: “I am E-l Sha-ddai: (You singular) be fruitful and multiply”, rather than saying ‘(You plural) be fruitful and multiply’.

Another thing Rabbi Ilaa said in the name of R. El’azar son of R. Shimon: “Just as there is a mitvah upon a person to say something that will be heeded, so too there is a mitzvah on a person not to say something that will not be heeded.

Rabbi Abba said: This is (not merely a mitzvah but rather) and obligation, as Scripture says: “Do not rebuke a scoffer lest he hate you; rebuke a sage and he will love you.”

Another thing Rabbi Ilaa said in the name of R. El’azar son of R. Shimon:  A person may alter (the truth) for the sake of peace, as Scripture says: . . .

R. Natan said: It is a mitzvah to do this, as Scripture says . . .

The House of Rabbi  Yishmael taught the following beraita: “Great is peace, for even The Holy Blessed One alters the truth for the sake of peace . . .

“Rabbi Yochanan ben Berokah said: Rabbi Yochanan ben Berokah

An Amoraic dispute between Rabbi Yochanan and Rabbi Yehoshua ben Levi:

One said: The halakhah follows Rabbi Yochanan ben Berokah;

The other said: The halakhah does not follow Rabbi Yochanan ben Berokah.

. . .

What was said about this issue?

Come hear the following evidence: R. Acha bar Chanina said R. Avahu said R. Assi: A case (of a woman suing for divorce because she was long-term childless) came before Rav Yochanan in the public meeting house in Caeserea, and he said: The man must divorce her and pay her ketubah.

And if you were to think that woman were not commanded, why would he have to pay the ketubah (since she sued for divorce without sufficient justification)?!

Maybe she came with a sufficient rationale,

            As in the case of a woman who came before R, Ami.

            She said to him: Award me my ketubah!

            He told her: Go away! You are not commanded (to procreate).

            She said to him: In my old age, what will happen to this woman?

            He said: In such a case we certainly compel (the man to divorce her).

A(nother such) woman came before Rav Nachman:

He said to her: You are not commanded!

She said to him: Does not this woman need a walkingstick for her hand and a shovel for burial?

He said: In such a case we certainly compel (the man to divorce her).

(Yehudah and Chizkiyah were twins, one of whom was complete at the end of nine months, the other at the beginning of the seventh.)

Yehudit the wife of R. Chiyya had a painful childbirth.

She changed clothes and came before R. Chiyya.

She said: Is a woman commanded regarding being fruitful and multiplying?

He said to her: No!

She went and drank a sterilizing potion.

In the end this became known.

He said to her: If only you had borne me one more full stomach,

as Mar said:Yehudah and Chizkiyah were twin brothers: Pazi and Tavi were twin sisters.

Are women really not commanded!? But said R. Acha son of R. Ketina said R. Yitzchak: A true story: A woman who was half slave and half free, and they forced her master to free (her enslaved half on the ground that otherwise she could not marry)?!

Said R. Nachman bar Yitzchak: They behaved lewdly with her.

משך חכמה לבראשית ט:ז

1)      “פרו ורבו וכו’” –

2)      לא רחוק הוא לאמר הא שפטרה התורה נשים מפו”ר וחייבה רק אנשים כי משפטי ה’ ודרכיו דרכי נועם וכל נתיבותיה שלום ולא עמסה על הישראלי מה שאין ביכולת הגוף לקבל,

3)      ומכל דבר האסור לא מנעה התורה בסוגה ההיתר, כמו שאמרו פרק כל הבשר (חולין קט סע”ב),

4)      ומשום זה לא מצאנו מצוה להתענות רק יום אחד בשנה, וקודם הזהירה וחייבה לאכול,

5)      וכן לא מנעה המשגל מכל בריה לבד ממשה רבינו (שבת פז) לפי שלא היה צריך לגודל מעלתו ולזהירות גופו,

6)      ויותר מזה, במלחמה, בעת הנצחון, לגודל החום והרחבת הלב, ידע א-ל דעות כי אז לא יתכן לעצור בעד הרוח בעת חשקו באשה יפ”ת, והתירה התורה יפ”ת א”א, וכמאמרם (קדושין כא סע”ב) לא דברה תורה אלא כנגד יצה”ר,

7)      וכבר האריך בזה מחבר אחד,

8)      ומצאנו איך היה זאת לאבן פינה לאבות הקבלה, שפטרו מיבום מי שמתו בניו אח”כ משום דרכיה דרכי נועם (יבמות פז:).

9)      וא”כ נשים שמסתכנות בעיבור ולידה, ומשום זה אמרו מיתה שכיחא – עיין תוס’ כתובות פ”ג ע”ב ד”ה מיתה שכיחא – לא גזרה התורה לצוות לפרות ולרבות על אשה,

10)  וכן מותרת לשתות כוס עיקרין, וכעובדא דיהודית דביתהו דר”ח סוף הבא ע”י,

11)  רק לקיום המין עשה בטבעה שתשוקתה להוליד עזה משל איש (עיין ב”מ פד רע”א ורש”י ד”ה כי כאיש לשון אחר וכו’), ומצאנו לרחל שאמרה (בראשית ל) “הבה לי בנים ואם אין מתה אנכי”,

12)  ובזה ניחא הך דאמר רב יוסף סוף פרק הבא ע”י דאין נשים מצוות בפו”ר מהכא “אני א-ל ש-די פרה ורבה”, (בראשית לה, יא), ולא קאמר “פרו ורבו” (בראשית א, כח) –

13)  היינו, דבאדם וחוה שבירך אותן קודם החטא, שלא היה צער לידה, היו מצוות שניהם בפו”ר ואמר להם פרו ורבו,

14)  אבל לאחר החטא, שהיה לה צער לידה (בראשית ג, טז) והיא רוב פעמים מסתכנת מזה עד כי אמרו (נדה לא:) אשה נשבעת שלא תזדקק כו’,

15)  לכן בנח, אף דכתיב “ויאמר להם פרו ורבו”, הלא כתיב קודם “ויברך את נח ואת בניו”, אבל נשיהם לא הזכיר, שאינם בכלל מצוה דפו”ר,

16)  וביעקב קאמר “פרה ורבה” (בראשית לה, יא),

17)  וזה נכון, ובמהרש”א סנהדרין נ”ח (נט: סד”ה גמרא והרי פ”ו) הניח זה בויש ליישב וכוון לזה ודו”ק.

18)  עוד יתכן לאמר בטעם שפטרה התורה נשים מפו”ר –

19)  משום דבאמת הלא הטביעה בטבע התשוקה, ובנקבה עוד יותר, כמו שאמרו (קדושין ז) טב למיתב טן דו וכו’,

20)  ודי במה שהיא מוכרחת בטבע,

21)  וע”כ דעיקר המצוה היא כמו דתנן ביבמות (סא: במשנה) לא יבטל אדם מפו”ר אא”כ יש לו בנים כו’, דאם נשא אשה ולא ילדה, מחוייב ליקח אשה שיש לה בנים,

22)  ומדרך התורה לבלי לגדור הטבע,

23)  וכיו”ב אמרו “דרכיה דרכי נועם” כמוש”כ,

24)  ולכן לגזור על האשה כי תנשא לאיש ולא יוליד תצא מאהוב נפשה ותקח איש אחר – זה נגד הטבע לאהוב השנוא ולשנוא האהוב, ורק האיש שיכול לישא עוד אחרת עליו הטילה התורה מצוה,

25)  וזה המשך המאמרים שאמר ר’ אלעזר בר”ש סוף פרק הבא ע”י, ודו”ק.

Meshekh Chokhmah Genesis 9:7

1)      “Be fruitful and multiply” –

2)      It is not implausible to say that the reason that the Torah exempted women from “be fruitful and multiply”, obligating only men, is that the laws of Hashem and His ways are ways of pleasantness, and all its paths are peaceful, and so it did not impose a burden on the Jew that the body cannot accept.

3)      With regard to every prohibition, the Torah left the permissibility of something in the same category unobstructed, as per Chullin 109b.

4)      For this reason we find no commandment to fast other than one day a year, and prior to that fast the Torah commands and obligates eating,

5)      and similarly it did not withhold copulation from anyone other than Mosheh Rabbeinu (Shabbat 87), since owing to his great spiritual height and his body’s punctiliousness, he had no need for.

6)      More than this, in war, at a time of victory, owing to the great fever and breadth of heart, the G-d Who Knows Minds knew that it would be unreasonable to constrain that spirit.at the time that he lusts for “the attractive captive”, and the Torah permitted even a married “attractive captive”, as per the Sages’ statement: “The Torah here spoke taking into account the evil inclination”.

7)      A different author has already addresses this at length[10].

8)      We have found this to be a cornerstone for the Greats of the Tradition, as they excluded from the institution of levirate marriage a woman whose child from her first husband died after her remarriage on the ground that “Her ways are ways of pleasantness”. (Yebamot 87b).

9)      Accordingly, since women are endangered by pregnancy and birth, to the point that the rabbis said “Death is common” – see Tosafot Ketubot 83b – the Torah did not decree the command of being fruitful and multiplying on women.

10)  They are also permitted to drink a sterilizing potion, as per the case of Yehudit the wife of Rav Chisda on Yebamot 65b.

11)  However, so as to sustain the species, He put in her nature a desire to procreate stronger than that of men (see Bava Metzia 84a and Rashi thereupon)[11], and we have found Rachel saying “Give me children!  If not, I am dead” (Breishit 30).

12)  On this basis, we can explain well the statement of Rav Yosef on Ketubot 65b that the exemption of women from the commandment of being fruitful and multiplying derives from Genesis 9:7 “I am E-l Sha-ddai; you (singular) be fruitful and multiplying”, rather than you (plural) as in Genesis 1:28 –

13)  because Adam and Chavah, who were blessed before the sin, when childbirth was not a travail, were both commanded to be fruitful and multiply, as He said to them:You (plural) be fruitful and multiply,

14)  But after the sin, childbirth became a travail (Genesis 3:16), and she is usually endangered by this to the point that the Sages say (Niddah 31) “A woman swears never to engage in intimate relations again”[12],

15)  so regarding Noach, even though Scripture writes “You (plural) be fruitful and multiply” (Genesis 9:1), that clause is preceded by “He blessed Noach and his sons”, without mentioning their wives, because they were not included in the command to be fruitful and multiply,

16)  and regarding Yaakov He said “you (singular) be fruitful and multiply” (Genesis 35:11).

17)  This is correct, and when Maharsha to Sanhedrin 59b ends his presentation of the singular/plural differences among these verses by saying “but these can be resolved”, he refers to what I have said.

18)  It is further reasonable to say regarding the reason that the Torah exempted women from being fruitful and multiplying –

19)  That indeed He embedded this yearning in nature, and to a greater extent in women, as the Sages say (Kiddushin 7) “Women think it is better to be married to any man”[13],

20)  and her natural compulsion is sufficient,

21)  as certainly the essential mitzvah is as presented in Mishnah Yebamot 61b “A man must not remove himself from being fruitful and multiplying unless he has sons”, so that if he married a woman and she has not given birth, he is obligated to marry a woman who can have children,

22)  and it is the way of Torah not to fence in nature,

23)  and along these lines the Sages say “Her ways are ways of pleasantness”, as I wrote above,

24)  and therefore, to decree on a woman that if she is married to a man and he doesn’t sire, that she should leave the love of her soul and marry another man – this is against nature, to love the hated and hate the beloved, so it is only on the man, who can marry another woman in addition to this first wife, that the Torah imposed the commandment.

25)  This is implied by the flow of the statements of R. Elazar son of Rabbi Shimon on Yebamot 65b.[14]   

[2] Although not to be fruitful

[3] There might also be an economic concern for the wife here, as childless divorced women would have no family to support them in their old age.

[4]Perhaps MC also factored the experience of pregnancy as such into his suggestion.  Regardless, we must be very careful, when making this argument, to be pellucid that it does not generate a right of abortion.  The principle “her ways are ways of pleasantness” does not prevent G-d from demanding that we surrender our lives on occasion; demands that are unreasonable in one context are reasonable in another., and preventing fertilization is not the same issue as terminating a fetus. 

[5] I discuss the question of women’s rabbinic obligation, which remains a contentious halakhic issue, in my series on Kibbud Av VaEim.

[6] My approach here owes much to the broad approach of Rabbi Yehudah Herzl Henkin to issues of gender, but does not to the best of my knowledge follow his specific halakhic prescriptions on this issue.

[7] So long as they use means that do not violate prohibitions, such as one against self-castration. 

[8] The question of whether, once married, he can have marital relations with her, is one of means rather than of principle.  He has an obligation of onah regardless, and so cannot even use her lack of fertility as an excuse for avoiding marital relations.  Some barrier methods raise issues of hashchatat zera for him, but there are certainly methods that are unproblematic in this regard.

[9] MC is of course aware of this.  This obligation is offered to explain why we might coerce men to enable women to marry; I suspect that MC would argue that the standard for excusing women from the obligation should be low.

[10] I would much appreciate any insights with regard to this reference.          

[11] In context this may refer to sexual rather than procreative desire

[12] In context this may relate to pain rather than danger

[13] This statement has implications in other halakhic contexts that I hope to address in writing soon.

[14] Rabbi Elazar son of Rabbi Shimon is first cited as bringing a prooftext for the exemption of women, and then for saying that “Just as there is a mitzvah to say things that will be heeded, so too there is a mitzvah to not say things that will not be heeded”.  The second statement has no obvious contextual relevance.  Meshekh Chokhmah is apparently arguing that the second statement is the ground of the first, in other words that R. Elazar son of R. Shimon thinks that Hashem exempted women because they would find it very difficult to obey.  Note, however, that R. Elazar’s prooftext rests on a claim that it is not the way of women to conquer/subordinate others, and therefore one can accept Meshekh Chokhmah’s structural reading but contend that R. Elazar son of R. Shimon has a different understanding that Mesheskh Chokhmah of why such a command would likely not be well-heeded.