Halakha and Brain Death A Response by Rabbi J. David Bleich
Volume 3 , Issue 4 (March, 1990 | Adar, 5750)
The article that appeared in the last issue of The Jewish Review (Vol 3., No. 3), under the title "Halakhic Death Means Brain Death" (sic) contains numerous misstatements concerning both biomedical realia and matters of halakhah. For the record, I will point out only those errors having a direct bearing upon the halakhic determination of criteria of death and ignore what in legal parlance is termed "harmless error," i.e., misstatements that do not affect the result. An example of the latter is the statement that persons such as Karen Ann Quinlan "are referred to as being in a persistent vegetative state or are described as suffering from the 'locked‑in' syndrome." In point of fact, the "locked‑in" syndrome is in no way related to the persistent vegetative state and a patient in a "locked‑in" syndrome has not "lost all function in the cerebrum." A "locked‑in" patient is awake and conscious but cannot communicate with the outside world. But let us turn to the significant issues:
1. "Brain death" criteria were first formally advanced by the Harvard Ad Hoc Committee for the Determination of Death in 1968. Those criteria purport to reflect the death of the entire brain, including the brain stem. It is that phenomenon and only that phenomenon that is legally accepted as "death" in the numerous jurisdictions that have accepted neurological criteria of death, either by means of statute or as a result of judicial fiat. Thus the Quinlan case was argued as a withdrawal of treatment case, not as a time of death case. No one argued that Karen Ann Quinlan could legally be pronounced dead on the basis of a diagnosis of "cerebral death." Similarly, the Cruzan case now pending before the U.S. Supreme Court involving a patient in a persistent vegetative state is before the court as an action for the removal of a feeding tube on the grounds of a putative constitutional right to privacy, not as a time of death case that, at least in this instance, presents no constitutional issue.
The only "brain death" criteria recognized now, and at the time Dr. Barnard performed pioneering heart transplants, are and were criteria purporting to show that death of the entire brain has occurred, not merely death of the cerebrum. The Harvard criteria, formally published shortly after Dr. Barnard's first transplant was performed, focus upon brain stem function. It is commonly assumed that death of the brain stem is indicative of death of the entire brain. The significance and import of the Harvard criteria were fully recognized within the medical community in the late 1960's. Use of radioisotope scanning as a means of confirming the absence of blood flow to the brain was reported by Drs. Braungtein and Korein in two separate studies published in 1973. When other indicators to "brain death" are unambiguous, the medical community does not require, and never has required, confirmatory blood flow studies. Neurologists are quite comfortable in relying upon the Harvard criteria for establishing what they describe as "brain death," not "cerebral death." A "new set of medical facts" on the basis of which Rabbi Feinstein is purported to have reversed his opinion simply does not exist.
In point of fact, there is even today no way to show with certainty that "brain death," as distinct from "cerebral death," has occurred. Drs. Braunstein and Korein are candid in describing the phenomena which they report as "cerebral death" rather than "brain death." More recently, in 1985, Dr. Julius Goodman conceded that even with negative findings on the basis of isotope angiography "persistent perfusion and survival of the brain stem" remains a distinct possibility.
There is nothing novel in any of the foregoing. The biological facts are not in dispute. Acceptance of a brain death standard is inherently a value judgment rather than a medical decision. A signed editorial appearing in the April 21st issue of the Journal of the American Medical Association stated quite succinctly, "[D]efenders of the whole brain definition have yet to make a convincing case, at the conceptual level, for equating loss of all brain function with the end of life. Many common rationales for whole‑brain definition succumb to elementary objections ... [S]ome reasons given by clinicians for supporting the whole‑brain definition actually imply that patients who are dead according to the whole‑brain definition, suitably maintained, are still alive: for example, that their lives are not worth living, that their prognosis is hopeless, or that they cannot live more than a few days."
Quite to the contrary of what we are told in an article printed in the Kislev issue of The Jewish Review, the shift that has occurred is not movement from "cerebral death" to the more rigid notion of "brain death," but the reverse. Although the presently accepted standard is death of the entire brain, influential voices have been heard in the medical and bioethical communities arguing for relaxation of the whole‑brain standard in favor of a notion of "cerebral death" with the result that a patient in a permanent vegetative state might be pronounced dead.
In actuality, response to the contention that Rabbi Moshe Feinstein reversed his opinion on the basis of a new understanding of the concepts of brain death is superfluous. There is nothing in any of his several responsa dealing with this matter to indicate that he was appraised of newly formulated "brain death" criteria and that, accordingly, earlier halakhic determinations no longer apply to new circumstances. Quite to the contrary, the last volume of Iggerot Mosheh, published some seven or eight months before his death, contains a responsum reiterating Rabbi Feinstein's opposition to acceptance of brain death criteria. The responsum is indeed dated many years earlier but it is unthinkable that Rabbi Feinstein would have permitted publication of a halakhic decision that did not reflect his thinking as it pertained to medical realia at the time of publication. Furthermore, Rabbi David Feinstein's report of his father's position regarding brain death was clearly expressed with regard to brain death criteria known to Rabbi Feinstein in the final years of his life, a time at which it is conceded by Rabbi Tendler that Rabbi Feinstein was aware of the distinction between "brain death" and "cerebral death."
Parenthetically, I find it incredible that New York City hospitals would ignore firmly established policies in breaching confidentiality in permitting nonmedical personnel access to patient records and in allowing such records to be removed from their premises. I can also only marvel that Rabbi Feinstein, who according to all reports, did not read English, was able to assimilate information recorded in medical records - a task that is no mean feat for persons fluent in the language but lacking familiarity with medical terminology. I am totally unable to comprehend what it is that Rabbi Feinstein might have learned from visual examination of a "brain‑dead" patient or why he found it instructive to see, not one, but five such patients. I have seen at least five times five "brain‑dead" patients and have found nothing remarkable in what meets the eye. Neurologists assure me that on gross examination a brain‑dead individual is indistinguishable from a merely respirator‑bound comatose patient.
2. I have, indeed, stated - and now reiterate - that determination of the criteria to be adopted in pronouncing a patient dead is a moral, legal, and halakhic matter, rather than a medical one. Pronouncement of death, by its very nature, is a legal matter. Medical practitioners treat patients; when they can no longer treat a patient they are, ipso facto, no longer functioning as physicians. In certifying or "pronouncing" that death has occurred, they serve as functionaries of the state.
A physician is uniquely qualified to assess the physiological state of the patient, diagnose illness, prescribe a remedy when such is available and make a prognosis with regard to what may or may not be anticipated in terms of reversing or improving the clinical state of the patient. Whether or not to bury a patient who is in a persistent vegetative state or to wait for "brain death" to become manifest, or cessation of cardio‑respiratory activity to occur, or for rigor mortis to set in, reflects a value judgment, not a medical decision.
We are told that this view is contradicted by Rambam and given the citation, viz., Hilkhot Retzicha (sic) 2:8. I must report that Rambam makes no such statement either in the indicated locus or elsewhere. In Hilkhot Rotzeah 2:8 Rambam is concerned not with death, but with explication of the concept of a tereifah. A tereifah is a person or animal who has sustained removal or perforation of one of a specified number of organs as a result of trauma or who was born with a similar congenital anomaly. The underlying presumption or rule of thumb is that the person or animal cannot survive for a period of twelve months. Establishment of the criterion of a tereifah is significant for two distinct matters of halakhah: 1) An animal manifesting such criteria is nonkosher and cannot be eaten; 2) A person who commits an act of homicide does not incur the death penalty if the victim is a tereifah. It is universally accepted, and conceded by Rambam as well, that survival for a 12‑month period despite such trauma or anomaly does not render the animal kosher. Similarly, development of a veterinary remedy for resultant physiological problems would not render the animal kosher. Conversely, a diagnosis of impending death as a result of trauma does not render the animal nonkosher if the injury is not to one of the specifically enumerated organs. With regard to capital homicide, however, Rambam declares the case to be quite different. The prior presence of any trauma or anatomical anomaly diagnosed by physicians as being fatal within a 12‑month period serves to exculpate the perpetrator and, conversely, in the absence of such an accompanying medical prognosis, no trauma or anomaly serves to diminish the degree of culpability. The role of a physician in this determination is assuredly not to define death: Death has already been defined by the canons of halakhah. Halakhah defines death and then asks the physician whether, absent any further assault, a person suffering such a trauma or burdened by such an anomaly would or would not have reached that defined state within a period of twelve months. In such situations physicians are called upon to do only what medical practitioners are uniquely qualified to do, viz., state the prognosis associated with the specific physiological state of the victim. The prognosis is declared by Rambam to be uniquely medical in nature. How the legal system is to categorize a person regarding whom such a prognosis is made is a halakhic matter beyond the pale of medical science.
3. It is simply not the case that "brain death" is tantamount to "physiological decapitation." It is true that, in a "brain dead" patient, "the brain begins to lyse (liquify)" after a relatively short period of time, but emphasis must be placed upon the word begins. The process of liquification begins some time after manifestation of "brain death" and, presumably, after the expiration of some period of time the entire brain would liquify. No one knows how long this would take. At autopsy, no one has ever seen a completely liquified brain. And for good reason. In the usual course of events, a "brain dead" patient may survive for a period of from three to fourteen days. Within that period of time - well before the brain turns completely into liquid - the heart stops beating and all other matters become moot. Thus it is simply not true that "if you turn the body [of a brain‑dead patient] upside down, the brain would flow out through a hole in the head." That, most emphatically, is not "what brain‑dead means." Only a portion of the brain liquifies; the rest of the brain remains intact in the cranial cavity. Obviously, it is only total liquification of the brain that can be analogized to "physiological decapitation."
This point would be dispositive even if radioisotope scanning were to show total cessation of all circulation of blood to the brain. However, Dr. Julius Korein, who pioneered such studies, claims only that these studies show a deficit in blood circulation. Moreover, an article in Annals of Neurology reported the results of a study of pediatric patients who demonstrated persistent EEG activity despite negative blood flow studies. Even more significant is the fact that a recent article in the Archives of Neurology reports that spontaneous respiration was observed in two patients in whom blood flow studies demonstrated no cerebral perfusion. It is thus obvious that, not only does a portion of the brain remain anatomically intact, but also that, in at least some patients, some brain cells remain physiologically functional as well. Furthermore, it must again be emphasized that radioisotope scanning is only rarely pursued as a source of confirming a state of "brain death."
4. Radioisotope scanning is of no therapeutic value to the patient. With proper equipment it can be performed at the bedside. However, in the real world, that is usually not feasible. Since such tests are not performed on a routine basis and since medical science - contrary to halakhah - sees no harm in the physical manipulation of a gosses, very few hospitals have the portable equipment necessary to perform such procedures at the patient's bedside. Instead, the patient is transported to the radiology suite and the testing is done there. Also, as is quite frequently the case, if the patient's head is not already properly positioned it is necessary to turn the head in order to position it for the camera. Such movement of a gosses is a violation of halakhic strictures.
Elsewhere, Rabbi Tendler has stated quite clearly that he regards radioisotope studies as superfluous other than in cases of trauma. Moreover, even in cases of trauma, once the possibility of a "brain clot" is eliminated with the passing of several days, he regards radioisotope scanning as unnecessary. (See Fred Rosner and Moses Tendler, Practical Medical Halacha, 2nd edition (New York, 1980), p. 64.) Under such circumstances he is perfectly satisfied to rely upon the Harvard criteria, namely: (1) lack of response to external stimuli or to internal need; (2) absence of movement or breathing; (3) absence of elicitable reflexes; and (4) a flat electroencephalogram.
It is, however, entirely possible that a patient may manifest the Harvard criteria even though blood still flows to the brain. Rabbi Feinstein demanded blood‑flow studies only in the case of patients from whom he believed further use of life‑support systems might be withheld on the basis of other halakhically acceptable criteria. He was, however, informed that, in some cases, recovery was possible despite halakhically acceptable prima facia negative clinical indications for withdrawal of life‑support systems. Accordingly, as clearly stated in his responsum, he counseled use of radioactive scanning as a stringency to be employed in order to avoid any possible misdiagnosis. In the context of a patient from whom life‑support systems are about to be removed, there could hardly be an objection to employment of such a procedure.
5. The Mishnah, Oholot 1:6, declares that a decapitated animal is dead despite any continued motion or movement. Obviously, if "physiological decapitation" were to be accepted as the halakhic equivalent of physical decapitation, any continued motion present in the heart would be similarly irrelevant. But brain death is not physiological decapitation. My comments regarding persistence of movement in the form of cardiac activity were addressed to those who quite evidently maintain that cessation of spontaneous respiration is itself a sufficient criterion of death. That cannot be the case because motion, even of limbs or extremities, is recognized as constituting a hallmark of life in it of itself. The human heart is surely capable of pirchus no less so than other muscles of the human body. But it must be regarded as absurd to categorize the beating of the heart as always being in the nature of pirchus. Similarly, even if the beating of the heart is spasmatic and irregular, e.g., in the case of a patient who requires a pacemaker to regulate the heartbeat, the presence of respiration and/or normal movement in other organs or the limbs of the body demonstrates the continued presence of life. The Mishnah distinguishes between "vital" motion and spasmatic twitching. Rambam offers a perfectly cogent explanation of that distinction. The normal rhythmic beating of a heart cannot be dismissed as mere pirchus and Rambam makes no such suggestion. The so‑called "brain‑dead" patient remains an integrated organism in which interrelated and interdependent physiological and metabolic activity continues to occur in a more or less "normal" manner. There are three reported cases of "brain dead" mothers having been sustained on life‑support systems and successfully giving birth to live children. In two of those cases clear evidence of brain stem death was reported. Ability to continue gestation for a full ten‑week period should give pause not only to labeling the mother a cadaver, but also to describing her as anything other than an "integrated organism," a term that has no precisely defined scientific meaning. The earlier cited editorial in JAMA correctly notes that the integrative functions of the brain stem do persist in a state of "brain death." The vital organ systems do "function as a system which is why physicians have been able to maintain brain dead patients slated to become organ donors" or, for that matter, why "brain dead" women have been able to become mothers. A letter to the editor signed by Dr. Fred Rosner and Rabbi Tendler objects to the tone and tenor of the editorial, but fails to respond to this substantive point.
Rashi certainly understood cardiac activity, in and of itself, to be an indicator of life, at least in a nondecapitated person. He was understood in that manner by Hakham Tzvi who espoused the same view without hesitation. Rashi is not talking about "voluntary motion" in the sense of "motion that is absent when you ring a lunch bell and the man doesn't come running." The motion evidenced by a person buried under debris is not necessarily volitional or conscious. In the eyes of halakhah, any motion that is not irregular or spasmatic pirchus is regarded as vital motion. It is quite evident that both Hakham Tzvi and Hatam Sofer understand Rashi in this manner. There is absolutely nothing in the phraseology employed by Rashi that even vaguely supports a "brain death" theory.
Although the point is entirely superfluous, the very fact that a heartbeat does not persist for an extended period of time subsequent to brain death strongly suggests both that the cardiac activity of a heart within a body is related to, or regulated by, brain function and that some form of residual brain activity is yet present in so‑called "brain‑dead" patients. Neurologists whom I have consulted freely concede that medical science does not properly understand why cardiac activity does not continue indefinitely in brain‑dead patients and that the possibility that the brain continues to exercise a persistent regulating function cannot be ignored out of hand. Hypothalamic activity, which regulates body temperature and fluid balance, has been shown to persist in "brain dead" patients. The hypothalamus is located within the brain. Hypothalamia, resulting from lack of hypothalamic activity, has been reported in brain dead patients immediately prior to cardiac arrest. Thus, it is entirely possible that cardiac activity persists only because the patients are as yet not truly "brain dead."
Unlike application of "brain death" criteria, the reliance of the Israeli chief rabbinate upon absence of respiration has a certain halakhic cogency. Dysfunction of the brain is a halakhically vacuous concept - absence of respiration is not. The problem with the latter position is not that absence of respiration is irrelevant, but that other criteria of life persist. The statement "that death is never determined by breathing or a heartbeat" is misleading: Death most certainly is determined by absence of breathing and absence of a heartbeat provided that no other signs of vitality are manifest. Nowhere in the rabbinic literature is there to be found a statement indicating that respiration is an indication that the patient is alive simply because it is an indication "that he has a functioning brain." Nor does failure of CPR prove that cessation of respiration is simply a manifestation of brain death. Of course, when CPR does not or cannot succeed, the brain will soon "die." But assuredly, failure of CPR is not necessarily indicative of prior brain death!
6. Hullin 21a describes a situation involving severance of the upper vertebrae of the spinal cord (not the "neck") together with the major portion of the flesh circumscribing the spinal cord. To me, that constitutes anatomical decapitation, not "physiological" decapitation. Moreover, even if the phenomenon described in Hullin is physiological decapitation, how does that serve to demonstrate that either the Harvard criteria or the radioisotope bolus studies also establish that physiological decapitation has in truth occurred? Finally, the concept of "nevelah de‑metame'ah me‑hayyim ? carrion that defiles while alive" includes inter alia an animal whose thigh has been removed and its abdominal cavity exposed. Surely no veterinary neurologist (if such a specialty exists) would pronounce the animal dead. Surely, then, the concept of a nevelah me‑hayyim represents a unique halakhic concept pertaining essentially to matters of ritual defilement and is not at all predicated upon either neurological or cardiac death.
7. The logical distinction between dysfunction of an organ and severance or destruction of the same organ is obvious. Tissue "that can be crumbled by a fingernail" or tissue "that a physician scrapes away," e.g., gangrenous tissue, is regarded as destroyed and hence already severed from the body. Halakha is replete with examples of the application of that principle. An explicit and hence much more apt citation of the application of that principle is Yoreh De'ah 48:5 rather than Yoreh De'ah 62:4. The halakhic point is that it is putrefaction that is the halakhic equivalent of detachment. Most emphatically, these sources do not establish that mere dysfunction is the halakhic equivalent of detachment. The distinction is obvious and need not be belabored. That part of the brain which has liquified is certainly to be regarded as severed from the body; the balance of the brain remains intact and hence has not been detached from the body even if it can be shown to have been rendered dysfunctional. In no area of halakhah is a merely dysfunctional organ regarded as already severed from the body.
8. I have never so much as hinted that refusal to accept neurological criteria of death is a matter of chumra or of "playing it safe." Let me clearly and unequivocally state that a so‑called "brain‑dead" patient is alive for all purposes of halakhah. Accordingly:
A kohen may enter the patient's room and may come into tactile contact with the patient unless the patient is deemed to be a gosses. See Yoreh De'ah 371:1.
Sabbath restrictions are suspended in the treatment of such a patient in precisely the same manner and under the same conditions that they are suspended in the treatment of any dangerously ill patient.
The patient's wife has no capacity to contract a marriage. If she does so, such marriage is null and void with the result that she is free to enter into a subsequent marriage after the death of her husband.
9. I am reliably informed that, at least in this country, there exists a plethora of potential recipients for every available organ. The result is that it is not necessary to expend any great effort in searching for tissue compatibility before a decision to remove an organ is reached. Moreover, many scientists maintain that with the development of immunosuppressive drugs, histological compatibility can and should be ignored. The literature in the transplant field is replete with studies lending support to both sides of the debate over the role of histocompatibility matching in patient and graft survival following kidney transplantation. With regard to organs such as the heart and liver the debate is entirely academic. Because of the short time period between removal and implantation of those organs it is not possible to engage in tissue typing or to match them with the best possible recipient. See Roy Calne, Tissue Typing, Liver Transplantation, ed. Roy Calne, 2nd. ed. (Orlando, 1987), pp. 131‑133. The net result is that should a prospective recipient decline a transplant, the organs will immediately be given to another. Of course, preparation of the recipient is begun even before the organ is removed from the donor. But, should a person not allow himself to be placed on the list of potential recipients, the name of another patient would appear at the top of the list and the same preparations would be made upon a different patient with no delay whatsoever.
I am unaware of endorsement of "brain death" criteria by any rabbinic authority whose opinion would give me reason for hesitation. There is - at best - confusion regarding Rabbi Feinstein's position. Certainly acceptance of "brain death" criteria cannot be inferred from sanctioning acceptance of a transplanted organ by a recipient. Moreover, the material published in the last issue of The Jewish Review amply demonstrates that Rabbi Feinstein received inaccurate and misleading medical information. Eminent rabbinic decisors who have unequivocally rejected neurological criteria of death include: R. Elazar Shach, Rosh Yeshivah of the Yeshivah of Ponevez in B'nei Brak. (Yated Ne'eman, 12 Kislev 5447); R. Yitzchak Weisz, recently deceased head of the Bet Din of Jerusalem's Edah ha‑Haredit (Ha‑Modi'a, 4 Heshvan 5747; Le‑Hoshevei Shemo, Heshvan 5749; and Ha‑Pardes, Sivan 5744); R. Yitzchak Kulitz, Chief Rabbi of Jerusalem (Yated Ne'eman, 23 Adar 5747); R. Eliezer Waldenberg, a retired member of the Israeli Supreme Rabbinical Court of Appeals (Ha‑Modi'a, 4 Heshvan 5747, and 12 Heshvan 5747; Ha‑Pardes Kislev 5747, Adar 5747, and Sivan 5747); R. Nisim Karelitz, Chief Rabbi Ramat of Aharon (Ha‑Modi'a, 22 Heshvan 5747); R. Shmuel ha‑Levi Wosner, late Chief Rabbi of Zichron Meir (Ha‑Modi'a, 22 Heshvan 5747); R. Noson Gestetner (Ha‑Modi'a, 22 Heshvan 5747); and R. Aaron Soloveichik (Or ha‑Mizrah, Nisan‑Tammuz 5748; Journal of Halacha and Contemporary Society, Spring 1989). I deem it a signal honor to be berated together with these eminent authorities who will not "admit that they do not understand." If they do not understand, who does?
Dr. Kantor's letter (see, Letters to the Editor, The Jewish Review, Vol.3, No. 3) also contains misstatements that cannot be allowed to stand uncorrected.
The most serious of these is his failure to grasp that it is only irreversible cessation of respiration and cardiac activity that constitutes death. This has been clearly stated in a number of sources. Consider the alternative. There are Indian fakirs who are able to exercise voluntary control over the muscles responsible for the heart's beat. Surely, such a person is not to be pronounced dead every time he interrupts the beating of his heart and simultaneously holds his breath! Hence, although the suggestion that CPR entails bringing a dead person back to life is not as ludicrous as it might seem, I do not believe that it is what transpires. Chazal do tell us that, in the past, the Creator has entrusted the "keys of resurrection" to certain saintly persons. I doubt that He has such high regard for all members of the medical profession.
Halakhah does not stand or fall on the aptness of a picturesque simile. Nevertheless, the comparison of a brain transplant to the entry of a dybbuk is entirely appropriate. Dr. Kantor seems unaware of the fact not every dybbuk can be exorcised!
The problem of personal identity in this context, i.e., how many or which organs can be transplanted before a person loses his identity and assumes the identity of the donor is intriguing, but irrelevant to the question at hand. It is also an issue which has yet to be discussed by rabbinic scholars. It seems to me that halakhic arguments can be formulated that lead to a conclusion rather similar to the notion of spatio‑temporal continuity advanced on entirely different grounds by contemporary philosophers such as A.J. Ayer. (According to Ayer, the primary basis for declaring the person I see today to be the same person I saw a week ago lies in the tracing of his movements over that period of time. A series of intervening spatial positions have been occupied without temporal interruption. The occupant of those successive spatial positions is regarded as having a single identity. To this there must be added the halakhic notion that the identity of an object transported to and grafted upon another object becomes submerged in that upon which it has been grafted.)
Of no halakhic significance, but of tremendous hashkafic importance (to coin a phrase) is the stress upon "the growing acceptance of the belief that what makes a person a person is not his body or bodily functions...but rather his mental functions and personality," rather than upon an understandable need for transplant organs. Is this not a typical case of a post factum rationalization being paraded as a cause? More significantly, "growing acceptance" is a pernicious concept. Torah teaching does not vacillate in accommodation of societal acceptance or non‑acceptance of its normative principles. But of course Dr. Kantor is right in drawing attention to that phenomenon. It is the "growing acceptance" of "brain death" that has caused many to jump on the bandwagon. I shudder to think of what will happen when there emerges a growing acceptance for pushing the predication of personhood upon "mental functions and personality" to its logical conclusion and society proceeds to adopt policies based upon the notion that the mentally ill or mentally defective are non‑persons.
Rabbi J. David Bleich is Rosh Kollel of the Kollel l'Hirrah Yadin Yadin (Post Graduate Institute) and Director of the Continuing Rabbinic Education Program at Yeshiva University's Rabbi Isaac Elchanan Theological Seminary (REITS). He is also the Herbert and Florence Tenzer Professor of Jewish Law and Ethics at the University's Bejamin Cardozo School of Law. Rabbi Bleich is the co‑editor of Jewish Bioethics.