Sunday, April 20th, 2014

The Brain Death Debate: A Methodological Analysis (Part 3a—Rabbi Moshe Feinstein) by Daniel Reifman

June 9, 2011 by  
Filed under Halakha, New Posts

[Click on these links for Part 1 and Part 2]

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 20th-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 PerplexedAnd 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.


[1] There are reports that, in later years, Rabbi Feinstein gave oral approval to individuals seeking various cadaveric organ transplants. (Rabbi Moshe Dovid Tendler, “Rabbi Moshe Feinstein and Brain Stem Death”, Le’ela [March, 1996], p. 31)  However, these reports do not relay a clear explanation of what changed in Rabbi Feinstein’s thinking and thus don’t help us understand precisely what he was objecting to in his initial rejection of the procedure.

[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.

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Comments

9 Responses to “The Brain Death Debate: A Methodological Analysis (Part 3a—Rabbi Moshe Feinstein) by Daniel Reifman”
  1. J. says:

    I’ve been waiting for this for months – kudos for an excellent post that tackles this complex subject with intelligence and objectivity.

  2. lawrence kaplan says:

    An exceptionally lucid, insightful, and incisive analysis. A great example of close and careful reading.

    I would suggest that once Rabbi Reifman’s entire analysis is posted on Text and Texture that the whole article be published in Tradition, and that the Editors invite leading contemporary poskim to offer their reactions. It would be instructive, I am sure, to see what Rabbis Bleich, Shachter, and Busch, for example, would have to say about Rabbi Reifman’s article.

  3. Shalom Spira says:

    Like R’ J. and Mori ViRebbi R. Kaplan, (lehavdil ani hakatan) I congratulate R. Reifman on the third excellent installment in his sparkling series. Particularly worthy of celebration is his successful refutation of RJDB in footnote 3. RJDB’s statement (discussed by R. Reifman in footnote 3) had long disturbed me, and I am relieved to finally see it now corrected by R. Reifman. [Incidentally, I am sure that my relief is shared by RJDB, for RJDB embodies the intellectually honest attribute of "torat emet haitah befeehu, ve'avlah lo nimtza veesfatav" in Malachi 2:6.]

    My personal interpretation of this third installment of R. Reifman is that it is consistent what I wrote in response to the first two installments, viz., that the proper application of Chatam Sofer to the brain dead patient is subject to an unresolved dispute between RMF/RYBS vs. RSZA. RMF/RYBS regarded the patient as dead, whereas RSZA regarded the patient as possibly alive. [And therefore, I add, in terms of practical halakhic conduct: I believe that until RSZA issued his pesak halakhah in 1991, world Jewry was obligated to follow RMF and RYBS, just like the townspeople of Rabbi Eliezer described in Shabbat 130a. After RSZA issued his countervailing pesak halakhah, it seems to me that the consideration of "safek nefashot lehakel" in Shabbat 129a was triggered to required that one desecrate Shabbat to maintain the brain dead patient.]

    That said, I do have two points of divergence from R. Reifman, ketlamid ha’yoshev bakarka vedan lifnei Rabbotav (i.e. R. Kaplan and R. Reifman, who are both my superiors), as follows:

    1) R. Reifman’s analysis advances the case that RMF’s written responsa consider a brain dead patient as dead. I would suggest an alternate possibility: I believe that RMF’s written words are ambiguous, and it is only because of the oral testimony of RMDT, RDF, Dr. Ira Greifer and Dr. Arthur Eidelman that we know that RMF held that brain death = death. In other words, I completely agree with R. Reifman that RMF paskened brain death = death (-the four witnesses identified are certainly kosher – without vested interest – and their testimony must therefore be accepted as per Tosafot to Yevamot 77a), and thus I reject RJDB’s interpretation of RMF, but I don’t think RJDB is necessarily guilty of fraudulent misreading of RMF’s written words. There is no practical difference here but an academic difference here, to affirm that (in my opinion) RJDB read RMF’s Hebrew words in a more-or-less plausible manner (even if RJDB is now refuted and R. Reifman is vindicated by the oral record).

    Specifically, R. Reifman posits that RMF held “the heart’s inability to provide life force to the body is determined—not merely indicated—by its failure to support spontaneous respiration”. However, once one takes recognition of the sentence that immediately follows after the section

    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

    -one sees that in the next sentence RMF states that the respiration is an indicator of heartbeat. Thus, I can understand how RJDB interpreted RMF’s responsum to mean that even a breathless heartbeat is ipso facto a sign of life. Granted, it isn’t *the only* sign of life (as RMF emphasizes in rejecting R. Gulevsky) but it is still *also* a sign of life.

    Again – thanks to the oral record – we now know that R. Reifman is completely right and that RJDB is completely wrong in interpreting RMF. But that is not dyslexic fraud on RJDB’s part per se; RJDB simply lacked the oral inside information to which RMF’s direct contacts were privileged.

    Likewise, I don’t think it’s so clear from the written literature that RMF was told that Denise Darvall was still breathing when her heart was removed. In the South African Medical Journal of Dec. 30, 1967, we have a report of the transplant from Denise Darvall. On p. 1268, Dr. J. Ozinsky states that on Dec. 2, 1967, at 10 p.m., Darvall “was seen by the anaesthetist for the first time when she was found to have a blood pressure of 60 mm Hg. She was now being ventilated mechanically via an oral endotracheal tube. The endotracheal tube was found to have intubated a bronchus and was withdrawn in order to lie in the trachea.”

    Then, on p. 1269, we are told that at 2:20 a.m. (of Dec. 3), “artificial ventilation of the donor ceased”. And then, at 2:32 a.m., “cardiac arrest of the donor occurred, at which stage incision of the donor commenced.”

    In a separate article by Dr. C. Barnard, on p. 1271, he states that “as soon as the donor had been certified dead (when the electrocardiogram had shown no activity for 5 minutes and there was an absence of any spontaneous respiratory movements and absence of relexes), a dose of 2 mg heparin/kg body-weight was injected intravenously. The donor’s chest was then opened rapidly, using a median sternotomy, and the pericardium was split vertically. A catheter was connected to the arterial line of the oxygenator and was then inserted and secured in the ascending aorta… Bypass and cooling were commenced in the donor… Perfusion was discontinued and the heart was excised… The heart was now free. The excision had taken 2 minutes.”

    Thus, if RMF was provided with these reports from Dr. J. Ozinsky and Dr. C. Barnard, he might have assumed that the donor was incapable of spontaneous respiration. And still, RMF wrote that he regarded the donor as alive. Thus, it would have been reasonable for RJDB as a reader of RMF’s responsa to conclude that RMF held that a brain dead patient is alive.

    Again, now that we are privied to the oral record, we know that R. Reifman is correct and that RJDB is wrong. [And so, obviously - either RMF was never the details about Denise Darvall's case as they appeared in the South African Medical Journal, or alternatively, RMF's responsa were not devoted to the Denise Darvall case.] But we can have our cake and eat it, too: RJDB did not commit fraud, even if he was disproven from the oral record.

    [Still, R. Reifman's rejoinder to RJDB in footnote 3 is well taken. Even if RMF's cryptic written words could be theoretically interpreted as saying that the brain dead patient is alive, it is impossible to claim that "those comments certainly reflect a clear recognition that the primary vital force in the human organism is the beating of the heart". A stalemate in how to understood RMF's written words would be more appropriate, and the oral record is what adjudicates the stalemate regarding the written record.]

    2)In footnote 2, R. Reifman states that

    “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.”

    Actually, it seems to me that there are several such references in the Hakham Zevi, as follows. [In the following analysis, paragraphs are cited from the Chakham Tzevi based on the newly paginated Mif’al Chakham Tzevi edition published in 5758. In the Gottesman library of YU, it is available under the call heading REF BM 522.23.S533.]

    (a) In the paragraph beginning with the words umah shekatav od vi’ulai yomar ha’omer, he says “After we know that the mishkan hachiyut (the dwelling place of life) is in the heart according to everyone, as we are about to explain, and that the limbs cannot live and be sustained without the life force and the nefesh hachayim (soul of life) which dwells in the heart, therefore she [-the hypothetical genuinely heartless chicken-] is a carrion.” Seemingly, these remarks of the Chakham Tzevi indicate that life itself is synonymous with the heart.
    (b) Likewise, in the paragraph that begins with the words viharav ha’E-loki, he says that it is “well publicized to all the people of the world that the heart is the mishkan linefesh hachiyut (the residence for the soul of the life) and is [accordingly] the last organ to die”. The Zohar to Parashat Nasso is cited as confirming the latter point.
    (c) In the paragraph that begins with the words sof davar divrei hazohar, he says that “the life of every creature is in its heart”.
    (d) In the paragraph that begins with the words mah shehevi misefer sha’arei shamayim, he says that “even the one who holds that [corporal] motion depends upon the brain agrees that life does not depend upon anything other than the heart”.
    (e) In the paragraph beginning with the words umah shekatav od bihavi’o hahi diferek batra di’yoma, he says “behold Rashi of blessed memory has agreed to our words that she’haneshamah mishkanah balev (-as for the soul, her residence is in the heart)”.
    (f) In the paragraph beginning with the word vihakuzari, he approvingly quotes R. Saadiah Ga’on to the effect that hanefesh shokhenet bo balev (the soul dwells in him in the heart).
    (g) In the paragraph beginning with the words uvisefer tzeidah laderekh, he quotes the Zohar Chadash as submitting that hanefesh mikomah balev (-as for the soul, her venue is in the heart).

    Nevertheless, R. Reifman is 100% correct that RMF never relates to those portions of Chakham Zvi. Evidently, R. Feinstein understood that the exclusive purpose of the Chakham Tzevi’s responsum was to forcefully make the point that one cannot live without a heart (and therefore it is impossible that the slaughtered chicken, whose kashrut status he was adjudicating to side of leniency, existed for so many years “heartless”ly). Anything else articulated by the Chakham Tzevi is a purely rhetorical flourish: when he says that “the soul is in the heart”, he really means that “the soul cannot co-exist with the body in the absence of the beating heart”, but not that the heart is, in and of itself, a sign of life. Thus, the Chakham Tzevi speaks nothing about the question of whether life can exist with a beating heart in the absence of respiration.

    In summary, Yi’yasher kochakha to R. Reifman for the beautiful presentation, and the above are my two points of slight divergence.

  4. Shalom Spira says:

    I would like to add a third point of diveregnce, with R. Reifman’s kind permission:

    3) Regarding RMF’s statement in IM YD 2:146, that

    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

    I think the source for RMF saying this is Shulchan Arukh Orach Chaim 25:5, which indicates that the heart and the brain are the two sources of life. [It is most surprising, of course, that RMF neglected to mention this source. My only explanation is that RMF was writing "lechadudei", to test the audience to supply the missing information, as per the gemara in Berakhot 33b.]

  5. Adam says:

    small footnote
    in a book published a few years ago called, i think, The Race for the First Human Heart Transplant, Christiaan Barnard’s brother is quoted to admitting that he and his brother and his transplant team lied. They did not wait for the heart to stop beating before they removed it. They did not think the world was ready at that time to accept doctors stopping a heart beat.

  6. Daniel Reifman says:

    To Rabbi Spira,

    Thank you for your characteristically thorough (and respectful) comments. Such a meticulous critique deserves a response in kind:

    1) I agree that Rav Moshe’s language in these paragraphs doesn’t rule out the possibility that heartbeat alone is sufficient as a sign of life, simply because he does not directly address that issue. As I noted, I pplan to revisit this conclusion when I examine the other portions of Rav Moshe teshuvot where he addresses the practical ramifications of his positionon. However, I do think that these paragraphs establish quite clearly that Rav Moshe considers breathing to be more than an incidental indication of heart activity, and that even the second paragraph that you cited (beginning ואולי מה שהוצרך החכ”צ…) does not alter that stance. In that paragraph, Rav Moshe is simply saying that Hakham Zevi might consider heartbeat and heart function to be coterminous, such that continued spontaneous respiration would indicate not only that the heart is still functioning (i.e., providing life force to the body) but also that it is still beating. But the fact that breathing would _also_ serve as an indication of heartbeat does not mean that that it would be significant _only_ as an indication of heartbeat.

    You suggest that the only way to know for sure whether Rav Moshe considered heartbeat to be an independent sign of life is to rely on the oral testimonies of his family members. While I appreciate your refusal to challenge those testimonies (something that cannot be said for all those involved in the brainstem death debate), I think this is a point that _can_ be clarified from Rav Moshe’s printed teshuvot alone, specifically Iggerot Moshe Y.D. 2:146 and 3:132. I will endeavor to do exactly that in my next post, which should come out in the next week or two.

    Also, I did not mean to suggest in footnote #2 that Rav Moshe actually had direct knowledge of the procedures used to determine that Denise Darvall was brain dead. Indeed, I have no reason to think that he knew any more than was reported in the general media. My point was merely to show that in the early days of cadaveric transplant surgery, there was not an internationally recognized standard for such diagnoses, and I used the case of Christian Barnard’s groundbreaking surgery as a prominent example of a diagnosis that apparently did not give weight to continued spontaneous breathing.

    As it turns out, the report that you cited from the South African medical journal is almost certainly unreliable. As an earlier commenter noted, almost 40 years after the fact, Christian Barnard’s brother Marius–a member of the surgical team and one of only three witnesses to the excision of Darvall’s heart–admitted that they had not waited for her heart to stop beating, but rather had immobilized it with an injection of potassium in order to remove it. (This is the account that is reflected in Doinald McRae’s 2006 book. ) According to Barnard’s testimony, the 1967 report that the surgical team waited until “the electrocardiogram had shown no activity for 5 minutes and there was an absence of any spontaneous respiratory movements” was patently false. (More accurate was the report that stated simply that “cardiac arrest of the donor occurred” — without specifying why!) I have no reason to think that Rav Moshe somehow intuited this, but its subsequent revelation certainly justifies his deep suspicion of (at least some of) the doctors who were involved in early cadaveric transplant procedures.

    2) I don’t deny that there are many passages in Hakham Zevi that suggest that the heart is the end all and be all of life, as Rav Gulevsky proposed. I meant only to say Rav Moshe did not regard any of these passages as relating to the means of determining death, since he explicitly rejected Rav Gulevsky’s interpretation.

    As my main focus in this post is Rav Moshe and not Hakham Zevi, I did not to elaborate on how these passages should be understood. However, now that you raise the issue, let me try to address this matter more substantively. You suggest that according to Rav Moshe, these passages should be interpreted as merely rhetorical flourishes. Although I think it is important to take into account when a statement is made rhetorically (and I find that scholars are often “tone deaf” to such factors), in this case I would offer a slightly different explanation. If we insist that the only way to dismiss the implications of these passages for the determination of death is to regard them as rhetorical flourishes, we are implicitly acknowledging that a given passage can be interpreted only two ways–literally or figuratively, the former being the default hermeneutic assumption. I would suggest, however, that even a “literal” interpretation is far from straightforward, and Hakham Zevi’s teshuvah is a perfect example to show why this is the case.

    An extremely broad statement, such as “the seat of life is in the heart”, could have any number of implications. It could mean, as some suggest, that only the absence of heart activity is a valid indicator of death. It could mean that we forbid artificial heart transplants, since removing the individual’s heart would be removing the seat of his life. It could mean that someone whose disembodied heart is kept beating in a bucket of salt water is still considered to be alive, since the seat of life is in the heart. It could mean that someone would be obligated to pay the full value of his person to hekdeish only if he pledged the value of his heart to hekdeish, but not if he pledged the value of his head, since the seat of life is only in the heart. It is unlikely that Hakham Zevi intended all of these things at once, but all of them are logically valid inferences from this statement–when it is read in isolation, that is.

    Does a “literal” reading of Hakham Zevi’s statement compel us to accept these inferences? Even Rabbi Bleich, who insists on a “literal” reading of such statements with regard to the first inference, rejects the rest. No doubt Rabbi Bleich would defend his selective use of inference by citing other halakhic sources that contradict all these implications (e.g., the gemara in Nazir 21b, which contradicts the last inference) — except, of course, for the first one. But to bring external sources to bear on the statement’s meaning is to insist that the statement can be understood only within the broader _context_ of halakhic literature, which serves to limit its semantic range. Taken on its own, interpreted acontextually, the statement could be read to support any or all of these inferences.

    In other words, there is no purely literal meaning; there is only contextual meaning. The only way to determine what are the proper implications of a general statement of this sort is to consider it within its context, both the broader context of halakhic literature, and — no less importantly — the narrow context of the teshuvah in which it appears. Based on the context of Hakham Zevi’s teshuvah, the only inference that we may confidently draw from this statement is that an animal deprived of its heart will instantly die, that heart function is essential to life. Hakham Zevi’s teshuvah does not relate at all to the question of how to determine death, so to read these passages as addressing that question is to take them out of context.

    The only line in Hakham Zevi’s teshuvah which explicitly addresses the process of death is his reference to the notion that the heart is the last organ to expire ([b] on your list, and cited by me in footnote #5). In this case, I would agree with your assessment that Rav Moshe must have read this statement as merely rhetorical, not to be used to resolve practical questions about how actually to determine death. (The other contexts in which this notion appears–the Zohar on parashat Nasso and Rabbenu Bahya on Deut. 6:5–are similarly rhetorical references.) The fact that Rav Ahron Soloveichik and Rabbi Bleich are the only poskim to cite this line from Hakham Zevi sugegsts to me that all other poskim are likewise reading this line as a rhetorical flourish.

    3) I guess it is possible that Rav Moshe was relying on O.H. 25:5 for his statement that the brain and the heart are both essential life-giving organs. However, the Shulhan Arukh’s statement in 25:5 — explaining why we place tefillin on the head and by the heart — is clearly homiletical, so to use it as a source for resolving practical questions about determining death strikes me as the kind of “tone deaf” interpretation that I referred to above. And notwithstanding the notion of *lehadudei*, it does not seem to me that Rav Moshe is in the habit of withholding key sources in the expectation that the reader will find them. (He is, after all, writing a teshuvah, not giving shiur klali.)

    Thanks again for your attentive reading and thoughtful comments.

  7. Shalom Spira says:

    Thank you, R. Reifman.
    I am grateful you tangentially raise the question of why RJDB has appeared to question the oral testimony of the four kosher witnesses I cite as reporters of RMF’s ruling. This presents me with an opportunity to methodologically explain RJDB’s response to the oral testimony, and why I think we are moving toward universal acceptance of the now solidified oral testimony:

    (1) No Testimony About RMF – Originally, RJDB honestly believed that no one actually testified that RMF equated brain death with death. After all, the only testimony RJDB had heard from RMDT was that RMF permitted a woman living in Monsey to receive a heart-lung transplant. RJDB’s response (correctly so) was that this proves nothing, because wrongful excision of an organ does not necessarily render the organ prohibited for future transplantation.

    Solidification of RMDT’s Testimony: In his 1988 symposium with RHS, RMDT testifies that not only did RMF permit receiving a heart, but he also permitted deactivating the respirator of a brain dead patient. Since RMF regards deactivation of a respirator (in the case of a respirator-dependent living patient) as an act of homicides, this proves that RMF definitely regarded the patient as dead. Thus, RMDT has indeed offered substantive testimony that RMF equated brain death with death. [Still, we don't know for sure whether this is because RMF thought that irreversible apnea itself defines death, or because RMF envisaged brain death as a virtual decapitation, or both, but it definitely serves as testimony that RMF held brain death = death.]

    (2) Contradictory Testimony From RMF’s Family – Originally, RJDB heard RDF testify that his father RMF never recognized brain death as death. Thus, RJDB honestly believed (correctly so) that RDF’s testimony would seemingly contradict RMDT’s testimony, resulting in a status of eidut muk’chéshét.

    Solidification of RMDT’s Testimony: Yes, RDF said that his father never recognized brain death, but what he meant (as he subsequently clarified in a letter delivered to RJDB and reiterated in RDF’s HODS interview) is that his father never recognized brain death where the patient is still breathing. But RDF does testify that he his father held that a patient is considered dead if he cannot breathe, even if the heart is still beating. When I cross-examined RDF in a 2005 correspondence by (snail) mail, RDF stood by his testimony (as recorded in the RCA 2010 report, footnote 135). This subsequent clarification of RDF serves as a valid “amatla” (as per the gemara in Ketubot 22a) to serve as kosher testimony that his father held that brain death = death. Accordingly, RMDT and RDF are now testifying to the same effect. [Thanks to the educational efforts of HODS, we now know that the same is true of Dr. Ira Greifer and Dr. Arthur Eidelman.]

    (3) Contradicts Rabbi Shmuel Landau’s Principle – Originally, RJDB believed that RMF’s opposition to brain death was muchzak, and pursuant to R. Shmuel Landau’s principle (codified in Shu”t Noda Bi-Yehudah YD 2:29) could not be overturned. As RJDB wrote to me in a letter I was privileged to receive by fax this past Feb. 28:
    “Reb Moshe did not accept brain death. I know it from contemporary eidut that was both ongoing in nature and reiterated by Reb Moshe numerous times. That eidut is recorded in writing. That pesak became muchzak and concretized in shtadlonus carried out in Reb Moshe’s name. His son has written that he never discussed the matter with his father. In Benetivot ha-Halakhah [Volume 3] I have an entire section demonstrating that no one has credibility to challenge posthumously a pesak that has become muchzak.”

    Solidification of RMDT’s Testimony: Yes, everything RJDB writes is true. At the same time, (as in point 2 above), when RMF publicly outlawed reliance on brain death criteria, he was referring to brain death where the patient still breathes. As RHS whimsically commented in his aforementioned 1988 symposium

    “Just derekh agav, parenthetically, years ago, when we learned Sanhedrin, so when the Rav [i.e. RYBS] was saying shi’urim, be-derekh pilpul he suggested the following sevara, but he said you can’t make up sevaros – you can’t pasken halakhos based on sevaros. He said what if you have a person who is brain dead? That was in the friedeker doros – brain death didn’t mean even what it meant in 1968. That was years before. Brain death just meant that it’s a flat EEG, whatever they used to call it then, EKG, they had different rashei teivos then, it was kodem beri’as ha’olam then!”

    (17:43 into the recording at http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II )

    RHS’s comments recognize that the term “brain death” has evolved with the progress of time, and so R. Shmuel Landau’s principle is compatible with the recognition that RMDT’s testimony is true.
    To strengthen this point, I observe that the Noda Bi-Yehudah’s son (in YD 2:29, second paragraph) emphasizes that he cannot accept the claim that his father retracted his ruling regarding the fish, because his father was alive for so many years, and anyone could have asked him what he truly held (“hayu yekholin lish’ol et piv”). And so this consideration upholds the truth of RMDT’s testimony. After all, the book Practical Medical Halacha (2nd edition) was published by Dr. Fred Rosner and RMDT while RMF was alive and fully functioning. [And here's proof from RJDB himself: RJDB indicated several years later, that RMF was fully functioning as a halakhic authority - eleven minutes into the lecture recorded at http://www.yutorah.org/lectures/lecture.cfm/751445/Rabbi_Dr._J._David_Bleich/Smoking_and_Shomer_Psa'im ] In that 1980 book, on pp. 60-61 we have RMF’s responsum on the definition of death (which would later be canonized as IM YD 3:132), accompanied by an English translation on pp. 61-63. That responsum alone – as demonstrated by the 2010 RCA report – is open to multiple interpretations. However, on pp. 63-66 of the 1980 book, a further English elaboration appears written by RMDT, in which RMDT declares unequivocally that RMF means that a person is dead if he cannot breathe, even if circulation continues. This was published in 1980, and anyone who doubted the accuracy of RMDT’s claim could have asked RMF for the next six years of RMF’s life. Moreover, it was simultaneously publicized in the pages of the Journal of American Medical Association of 1979 and 1980 that RJDB and RMDT (as the representative of RMF) were debating how to interpret the Chatam Sofer. [The relevant articles are in Vol. 242, No. 18, pp. 1985-1990; and Vol. 243, No. 18, pp. 1808-1809.] Certainly, someone could have asked RMF for clarification. Therefore, I believe that – apropos hilkhot eidut – RMDT’s testimony is authoritatitve and true.

    Similarly, in the recently published 25th yartzeit anniversary biography of RMF, we find on p. 242:

    “Rabbi Sherer enjoyed an unusually close relationship with New York Governor Hugh Carey and was among his closest confidants. Soon after Carey’s election as governor in 1974, a bill was presented before the New York State Assembly regarding the definition of “death”. The bill would have allowed the pulling of the plug on a patient who was breathing with the aid of a respirator. Rabbi Sherer contacted Reb Moshe, who confirmed that pulling the plug in such a situation would constitute murder, and he urged Rabbi Sherer to do everything possible to stop passage of that legislation. The governor was informed of Reb Moshe’s view and the legislation was aborted. The governor’s office made no secret of the fact that his decision was based on the “opposition of the Orthodox Jewish community.”

    To my ear, this paragraph indicates ambiguity as to what RMF’s pesak on brain death was, and so that which is muchzak in RMF’s name does not contradict the four kosher witnesses I cited.

    (4) Contradictory Testimony from R. Shmuel Fuerst – The RCA 2010 Report (p. 62) states, based on an oral communication with R. Shmuel Fuerst in April 2007, as follows:
    “Rav Shmuel Fuerst, Dayan of Agudath Yisrael of Illinois, reports that over the years he had many conversations with Rav Moshe regarding critically ill patients and end of life issues. At no point, Rav Fuerst stated, did Rav Moshe ever rule based on “brain death” or solely based on the lack of spontaneous respiration; he always remained concerned about the presence of a heartbeat. Accordingly, Rav Fuerst considers reports suggesting that Rav Moshe accepted “brain death” or the lack of spontaneous respiration as sufficent grounds to permit removal of organs for transplant as inconsistent with the opinion of Rav Moshe as he heard it”.
    Seemingly, this testimony would contradict the oral testimony of the four kosher witnesses I cited.

    Solidification of RMDT’s Testimony: A 2008 lecture by R. Shmuel Fuerst on this subject is now available online at http://psak.org/Audios/R%20Fuerst%202008-11-30%20Pulling%20the%20plug,%20Artificial%20Nutrition,%20The%20Halachik%20Definition%20of%20Brain%20Death,%20and%20Other%20End%20of%20Life%20Shailos.mp3
    At about 28 minutes into the lecture, R. Fuerst states:

    “Rav Moshe, bechaim, whenever I called him up when I had these she’elos – these end of life issues – whenever I called him, not once did he ask me about the brain – if there are brain waves, if there are not brain waves – he always asked me about the heart. I asked other talmidim from Rav Moshe – people who mamash were by Rav Moshe day in day out, if they- what Rav Moshe held about brain death. They’d never heard… Until the teshuvah [to Dr. Bondi] came out [to publication] they never heard a word about brain death. Only the heart… He was always handling whenever he asked – he asked you “What’s with the heart?” So, he held… No one heard about this thing about the mo’ach. So, veiss doiss [-Yiddish expression], Rav Moshe Sherer writes that he was together with [HaRav HaGa'on] Dr. Tendler by Rav Moshe who was together, to talk about brain death. And Rav Moshe told them clearly that the ikkar is talui in the heart and not the mo’ach. That’s what Rav Moshe Sherer already wrote down – he wrote down right away afterwards – he wrote down on his memo clearly – it’s printed in the Jewish Observer. He says “I remember when I was there I wrote down on a memo” – and he looked at his memo – he remembers that clearly Rav Moshe said clearly in front of [HaRav HaGa'on] Dr. Tendler – since he’s one of the advocates of pushing [equation of] brain death [with death according to Torah law]. He said Rav Moshe told him clearly in front of himthat the ikkar is not the brain. The ikkar is the heart. And that’s it. Alright.

    [A member of the audience then asks R. Fuerst that HaRav HaGa'on R. Tendler has competing testimony of what RMF said. R. Fuerst responds:]

    He disagrees? He disagrees. Alright.”

    [End of excerpt from R. Fuerst's lecture.]

    A careful examination of R. Fuerst’s words reveals that R. Fuerst never testifies that RMF never ruled that a brainstem dead patient is alive. Rather, RMF simply never discussed the subject with him (R. Shmuel Fuerst). “Absence of proof is not proof of absence” (as per the mishnah in Zevachim

    [Parenthetically, R. Fuerst's recapitulation of the Jewish Observer article is (with all due reverence manifest before him) somewhat inaccurate, evidently to test the audience if it is listening, as per the principle of "lechadudei" (Berakhot 33b). What the Jewish Observer (Oct. 1991, pp. 21-22) actually records in R. Moshe Sherer's name is that RMF told R. Sherer that the nuclide scan test is a chumra. This does not contradict RMDT's testimony. The "chumra" may well mean that although RMF interpreted the story of Eli Hakohen to equate total brain dysfunction with decapitation (as RMF writes in IM YD 2:174, anaf 1), nevertheless RMF will not agree to rely on the equation unless it is confirmed by the nuclide scan (for as RMF further writes in IM YD 2:174, we don't know how to translate the Eli Hakohen story into practice. He evidently felt that the nuclide scan was the only way to translate it into practice.)]

    In conclusion, while there have been four halakhically valid reasons for RJDB to cast aspersions on the testimony he was hearing that RMF equated brain death with death, I believe these four reasons have now been all addressed in a satisfactory manner, and ergo we are headed toward universal acceptance of RMDT’s testimony as being true. [As before, in my opinion, this would not change the practical clinical treatment of brain dead patients in the post-1991 era (due to RSZA's countervailing approach to Chatam Sofer), but it does vindicate the righteousness of HaRav HaGa'on RMDT.]

  8. Shalom Spira says:

    Correction: The mishnah quoted in my third-to-last paragraph is in Zevachim 103b. Thank you.

  9. A. Marmorstein says:

    I think the published responsum of Hagaon Rav Moshe Feinstein, Igros Moshe, Yoreh Deah 2:174 is not primarily a ruling on brain death or cardiac death. Rather it expresses concern that while all early experimental procedures have high failure rates, until the process can be refined, early heart transplants are in a different category because they might be considered a murder of both donor and recipient. It is a protest that those who hastily rushed into heart transplants showed insufficient respect for the value of human life, even the life of a very sick person who is likely to die anyway. The strong expressions, which the article correctly observes are atypical of the measured analytical tone usually employed by hagaon Rav Moshe Zatzal, is because it is more of a protest than an analysis. At the time, it was said that Rav Moshe told some of his disciples and confidantes that he was bothered by the morality of doing heart transplants. Clearly, time has changed that, and heart transplants are now done with very high success rates so that it is no longer true that two murders have been performed. This still does not surmount the issue of brain death.

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