The Enlightenment severely altered our conception of how the body functions, so it’s not surprising that the sources that figure prominently in the debate over brain death begin to accumulate only in the early modern period.  The teshuvah of Hakham Zevi that we cited in the previous post ^[1]was largely a reaction to the way early modern science cast doubt on traditional models of physiology.[1] ^[2]  However, this teshuvah does not directly address the question of how to define death.  Hakham Zevi’s analysis does have indirect ramifications for that question, which we began to discuss in our analysis of Rashi in our last post ^[1], but we will leave a full study of his teshuvah for our next post when we discuss how Rabbi Moshe Feinstein incorporates it into his own analysis.

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] ^[3]  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] ^[4] 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] ^[5] 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] ^[6] 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] ^[7]  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] ^[8]  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] ^[9]  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] ^[10]  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] ^[11]

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] ^[12]

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] ^[13]

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] ^[14]  Thus Rabbi Bleich’s attempted resolution only underscores the fact these passages do not seem to present a unified position.[14] ^[15]

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] ^[16]  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] ^[17] 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] ^[18] 

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] ^[19] 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.

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[1] ^[20] See Rabbi Yonantan Eybeschutz, Kereti u’Peleti, Yoreh Deah 40:4. 

[2] ^[21] 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] ^[22] “קביעת מוות מוחי עפ”י ההלכה”, אסיא 53-54 (1994), pp. 17-20.

[4] ^[23] The standard text of Hatam Sofer’s teshuvah reads ממקום (“from the place of”).

[5] ^[24] “קביעת רגע המות – חלק ב’ : היבטים הלכתיים”, אסיא, vol. 3 (1982), pp. 404-423.

[6] ^[25] 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 ^[26]).  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] ^[27] 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] ^[28] The Guide to the Perplexed, vol. 1, trans. Shlomo Pines (Chicago and London: University of Chicago Press, 1963), p. 92.

[9] ^[29] 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] ^[30] 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 ^[31].  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] ^[32] 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] ^[33] 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] ^[34] This insertion of the word “three” strikes me as an unwarranted editorial emendation. 

[14] ^[35] 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] ^[36] 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] ^[37] “קביעת רגע המוות והשתלת הלב”, אור המזרח 36:1 (1987), pp. 48-65.

[17] ^[38] 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] ^[39] 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.

6 Comments To "The Brain Death Debate: A Methodological Analysis – Part 2 (Hatam Sofer)"

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