Navonim - The Ramblings of Garnel Ironheart

Navonim - The Ramblings of Garnel Ironheart

Thursday, 27 March 2008

Bring Out Your Dead!

The definition of death in Jewish law is an extremely complicated area and I'm only going to touch superficially on it in this post. Given the time (hah!) I would like to put something together for the blog but probably won't get the opportunity until next year.

In recent days Israel has been dealing with a new law regarding organ transplants. Now, it is important to realize that many types of organ donation are sanctioned by halachah and that such donation, if life saving, can be a huge mitzvah. It is also well known that Jews generally perceive organ donation to be something universally forbidden because otherwise the entire body would not be available for burying. Getting past this ingrained assumption is something organizations like the Halachic Organ Donor Society have dedicated themselves too.

The reason for the urgency of the matter in Israel is due to the very low rates of organ donation there. According to one report, Israel is excluded from sharing in organ donation databases in Europe because while there is definitely a demand for organs in Israel, the Jewish community there only very rarely donates.

The classic definition of death, as defined by the gemara at the end of Yoma, is the cessation of spontaneous respiration. Before the era of invasive cardiac monitoring, this was considered a relatively decent standard. Respiration is controlled by the brain stem, the top part of the spinal cord, and when the brain stem dies, spontaeous breathing ceases.

Modern technology, however, has muddied the waters with its ability to measure body functions previously uncheckable, such as brainwave activity, brain metabolism and subclinical cardiac activity. All this has made the modern Jewish definition of death much more difficult. The classic reference case is the person who is otherwise non-viable but on a respirator and has a spontaneous heartbeat. Should the respirator be turned off, breathing will stop and shortly after so will the heart. Is this person alive or dead?

According to Rav Eliashiv, the determinant of life is the presence of cardiac activity. Certainly he is not alone in this view and even if he were, his status as the leading Chareidi halachic authority in the world makes this view important for consideration. Thus for Rav Eliashiv, the patient mentioned in the last paragraph would be alive and indeed this has been his public position, along with all its implications:

The second poster was published solely in Elyashiv's name, and said: "As I have already stated, as long as the heart (of the prospective organ donor) is still pumping blood, even in the case of 'brain death,' it is not permitted to remove any organ from the patient.'
A related article published in the community's paper read: "In the world of the Torah and the Halacha, much concern has been expressed regarding the provocative and shameless intervention in the grave subject of murder and (the Jewish law of) saving a life."

The other position is that breathing is the determinant of life. If the patient is incapable of breathing spontaneous, then even if the heart is beating, the patient can be considered dead. This was the position of the Rav Moshe Feinstein, zt"l and is still the position of his son-in-law, Rav Moshe Tendler, a major authority in Jewish medical law in his own right. In this view, the absence of function in the brain stem and above renders a person physiologically decapitated. This despite the present of a heart beat, the person is seen as no different that one whose head has just been lopped off and whose heart continues to beat for a very short time after. In addition to the other authorities who agree with this view, the current leadership of both the Sephardi Chareidim and the Dati Leumi community have accepted this view as the prevailing one. The Israeli law reflects this view as well, but also contains an interesting proviso:

The newly approved organ donation law will give every family the right to decide by which halachic ruling they prefer the pronouncement of death to occur – whether based on brain death or heart failure.

In other words, while the law now defines the Israeli legal view on brainsterm death, those who disagree would not be forced to accept that view if it is contrary to their personal halachic viewpoint. This all sounds incredibly reasonable.

The real concern is the response from the Chareidi community which basically runs as: To hell with all of you. Our view is the right one and anyone who disagrees with us is a murderer. I can understand their strong feelings on the subject because, in their halachic opinion, to turn the respirator off on a patient who is braindead but still has a heartbeat is no different than pulling out a gun and shooting the patient dead. Who would not be outraged if the latter were legalized?

Yet the difference here is that equally authoritative sources have deemed that brainstem death is indeed true death in which case turning the respirator off is not murder. Thus it would seem that the current conflict goes beyond medical definitions and comes to rest on the question of whether the Ashkenazic Chareidi community grants any legitimacy to halachic views which contradict its own, no matter how well-placed the authorities behind those views are. Is this simply another power play to delegitimize any rabbonim who disagree with the current Chareidi leadership? If this is the case, they should be called on this. Halachah is only besmirched when it is reduced to a simply, monolithic system identically applied to everyone and only interpreted by one "approved" group. It is a complex system that requires a variety of approaches and viewpoints to arrive at the real truth God wants for us. The debate is therefore another symptom of the bigger problem.

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