From Our Archives: In Defense of Brain Death and Halakhic Organ Donation – Rabbi Dr. Edward Reichman

In the recent report  written by the head of the RCA halakhic committee on the halakhic issues of brain death, the article emphasizes that contemporary medicine now recognizes that even after “brain death” has occurred, there continues to be much neurological activity.  The report then utilizes this information to claim that the medical criterion established by poskim who halakhically supported organ donation is not in actuality met, since these poskim required the complete cessation of all neurological activity. 

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