Sunday, December 5th, 2021

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

June 26, 2011 by  
Filed under New Posts

[Click on these links for Part 1, Part 2, and Part 3a]

Determining death in trauma victims

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cardiac activity in the absence of respiration

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1] Rabbi Feinstein does not explain this point.  Rabbi Shabbtai Rappaport suggests that Rabbi Feinstein considers oxygen to be an essential substance that one may not withdraw from a goses (an individual in the throes of death), lest its removal bring about his death. (אסיא [ספר], vol. 7 [Jerusalem: Dr. Falk Schlesinger Institute of Medical-Halachic Research, 1993], pp. 148e-148g)

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

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

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

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

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

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

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

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

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

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

[9]  אור המזרח (1987), pp. 61-2.

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

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

[12] See Bleich above at n. 3.

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

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

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

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

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

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

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

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

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

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

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

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

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

Print This Post Print This Post