The Brain Death Controversy
in Jewish Law
by Rabbi Yitzchok A. Breitowitz
Historically, death was
not particularly difficult to define from
either a legal or halachic standpoint. Generally,
all vital systems of the body-respiratory,
neurological, and circulatory-would fail at
the same time and none of these functions
could be prolonged without the maintenance
of the others. Today, with major technological
advances in life support, particularly the
development of respirators and heart-lung
machines, it is entirely possible to keep
some bodily systems "functioning"
long after others have ceased. Since we no
longer face the inevitable simultaneity of
systemic failures, it has become necessary
to define with greater precision and specificity
which physiological systems are indicators
of life and which (if any) are not, especially
in light of the scarcity of medical resources
and the pressing need for organs for transplantation
purposes. Over the past 20 or so years, the
concept of "neurological death"
commonly called "brain death," "whole
brain death" or "brain-stem death"
(and, sometimes, inaccurately-termed "cerebral
death") has gained increasing acceptance
within the medical profession and among the
vast majority of state legislatures and courts
in the United States. Whether this standard
comports with halacha is a matter of great
controversy among rabbinic authorities. The
purpose of this article is not to take sides
nor in any way resolve the halachic debate.
Its purpose is more modest. This article will
attempt to explain to the general reader:
(1) what is "brain death" and how
is it clinically determined; (2) some (not
all) of the major sources on whether it is
an acceptable criterion of death from the
standpoint of halacha; (3) a "scorecard"
on how contemporary authorities line up; and
(4) the halachic and legal ramifications of
one view or the other.
I. WHAT
IS "BRAIN DEATH" AND HOW IS IT DIAGNOSED?
The concept of total "brain death"
as an alternative to the older definition
of irreversible circulatory-respiratory failure
was first introduced in a 1968 report authored
by a special committee of the Harvard Medical
School2 and was later adopted, with some modifications,
by the President's Commission for the Study
of Ethical Problems in Medicine and Biomedical
Research, as a recommendation for state legislatures
and courts.3 The "brain death" standard
was also employed in the model legislation
known as the Uniform Determination of Death
Act which has been enacted by a large number
of jurisdictions and the standard has been
endorsed by the influential American Bar Association.
While New York is one of the few jurisdictions
that does not have a "brain death"
statute, it has adopted the identical rule
through the binding decisions of its highest
court.4
The rapid, and near universal, acceptance
of neurological criteria of death is probably
attributable to three factors. First, moving
the time of death to an earlier point facilitates
organ transplants, and indeed makes such transplants
possible. Organs, especially hearts and livers,
are suitable for transplantation only if they
are removed at a time when blood is still
circulating. Once cardiac arrest stops circulation,
rapid tissue degeneration makes the organ
unsuitable for such use. Given the increasing
success of these operations and the relative
uselessness (from a secular standpoint!) of
sustaining "brain dead" patients
on respirators, there is a natural temptation
to redefine death so that organs become available
to serve higher ends. It is no coincidence
that the movement towards acceptance of "brain
death" coincided with the development
of cyclosporine and other anti-rejection drugs.
Additional considerations involve triage
and allocation of scarce medical resource.
It is extraordinarily expensive (in terms
of equipment and labor) to maintain patients
on respirators and other life support and
using these resources for "brain dead"
patients prevents their deployment for those
who stand a better chance of recovery. Yet
a third impetus towards redefinition is an
understandable desire to spare families the
agony and anguish of watching a loved one
experience a protracted death.
For whatever the reason, the current definition
of "death" is now a composite one:
death is deemed to occur when there is either
irreversible cessation of circulatory and
respiratory functions (the "old"
definition) or irreversible cessation of all
functions of the entire brain including the
brain stem.5 The principal utility of this
second standard permits declaring as dead
a comatose, ventilator-dependent patient incapable
of spontaneous respiration but whose heart
is still beating due to the provision of oxygen
via an artificial breathing apparatus.
At the outset, two points must be made absolutely
clear. First, contrary to the misperceptions
of many lay people, "brain death"
is not synonymous with merely being comatose
or unresponsive to stimuli. Indeed, even a
flat EEG (electro-encephalogram) does not
indicate brain stem destruction.6 The human
brain consists of three basic anatomic regions:
(1) the cerebrum; (2) the cerebellum; and
(3) the brain stem consisting of the midbrain,
the pons, and the medulla, which extends downwards
to become the spinal chord. The cerebrum controls
memory, consciousness, and higher mental functioning.
The cerebellum controls various muscle functions
while the brain stem controls respiration
and various reflexes (e.g., swallow and gag).
A patient may be in a deep coma and nonresponsive
to most external stimuli but still very much
alive. At most, such patients may have a dysfunctional
cerebrum but, by virtue of the brain stem
remaining intact, are capable of spontaneous
respiration and heartbeat. Indeed, the most
famous of these cases, Karen Ann Quinlan,
was able to live off a respirator for almost
a decade. While such persons may be popularly
referred to as brain dead, they are more accurately
described as being in persistent vegetative
state [PVS] and are very much alive under
both secular and Jewish law. Removal of organs
such a donor would indisputably be homicide.
This is even more true for the phenomenon
known as being "locked-in" where
the patient is fully conscious but unable
to respond.
A second point to keep in mind is the relationship
among respiration, circulation, and the brain.
The heart, like any organ, or indeed cell,
needs oxygen to survive and without oxygen
will simply stop beating. Respiration, in
turn, is controlled by the vagus nerve whose
nucleus is located in the medulla of the brain-stem.
The primary stimulant for the operation of
the nerve is the presence of excess carbon
dioxide in the blood. When stimulated, the
nerve causes the diaphragm and chest muscles
expand, allowing the lungs to fill with air.
Spontaneous respiratory activity can therefore
not continue once there is brain stem destruction
or dysfunction. The heart, on the other hand,
is not controlled by the brain but it is autonomous.
It is obvious, of course, that the brainstem
will inevitably lead to cardiac cessation
not because of any direct control the brain
stem exercises over the heart but simply because
the heart muscle is deprived of oxygen. Where,
however, the patient's intake of oxygen is
being artificially maintained, the heart may
continue to beat blood and circulate for a
considerable amount of time after the total
brain-stem destruction. The time lag between
brain death and circulatory death is on the
average only two to ten days, though there
is at least one case on record where a woman's
heart continued to beat for 63 days after
a diagnosis of brain death.7 (Indeed, she
delivered a live baby through Caesarean section.)
It is this crucial gap between cessation of
spontaneous respiration and cessation of the
heart beat that defines the parameters of
the phenomenon called "brain-stem death."
The steps taken in a clinical diagnosis of
"brain-death" vary from medical
center to medical center and those differences
may have significant halachic repercussions
but will typically involve the following:8
(1) a determination that the patient is in
a deep coma and is profoundly unresponsive
to external stimuli; (2) absences of elicitable
brain-stem reflexes such as swallowing, gag,
cough, sigh, hiccup, corneal, and vestibulo-ocular
(ear); (3) absence of spontaneous respiration
as determined by an apnea test;9 and (4) performance
of tests for evoked potentials testing the
brain-stem's responsiveness to a variety of
external stimuli. These tests are to be repeated
between 6-24 hours later to insure irreversibility
- with life support supplied for the interim
- and a specific cause for brain dysfunction
must be identified before the patient will
be declared dead.10
An additional test that is sometimes employed
(when other clinical tests are deemed inconclusive)
is radionuclide cerebral angiography [nuclide
or radioisotope scanning]. A harmless radioactive
dye is injected into the patient's blood-stem,
typically through the intravenous tubing already
in place. In brain-dead patients, scanning
will reveal an abrupt cutoff of circulation
below the base of the brain with no visible
fluid draining away. While many observers
have described this test as nearly 100% accurate,
others have claimed the brain-stem circulation,
especially in the medulla, is not well visualized
and absolute absence of blood flow to this
region cannot be diagnosed with certainty.11
Note that a patient who is brain dead may
theoretically continue to have muscle spasms
or twitchings or even sit up. Whether this
so-called Lazarus Reflex is an indicator of
life will be discussed in due course; what
is undisputed is that such movements are coordinated
from the brain from the brain but solely from
the spinal cord. It should also be noted that
there are several instances of clinically
brain dead patients carrying live babies to
term.12 Again, this may or may not be significant.
II. IS
BRAIN DEATH AN ACCEPTABLE HALACHIC CRITERION
OF DEATH?
The question breaks down into distinct issues.
First, is irreversible dysfunction of the
entire brain a valid criterion of death? Second,
even if the answer is yes, are the medical
test currently utilized in establishing such
a condition halachically valid indicators
of its presence? One could easily subscribe
to "whole brain" death as a concept
and yet reject the particular diagnostic tools
employed.
There are a number of halachic sources that
are relevant to the question of "brain
death", the most important being the
Mishnah in Oholot 1:6, the Talmud in Yoma
85a, passages in Teshuvot Chatam Sofer and
Teshuvot Chacham Tzvi, and various pronouncement
of R. Moshe Feinstein in his Iggrot Moshe.13
This is not the forum for a detailed examination
of these sources other than to note that a
number of them are equivocal and subject to
a variety of interpretations.
Briefly stated, the Mishnah in Oholot establishes
the dual propositions that, first, physical
decapitation of an animal is a conclusive
indicator of death and second, some degree
of subsequent movement is nit incompatible
with a finding of death provided that such
movement qualifies as spastic in nature (pirchis
be'alma) like the twitching of the "severed
tail of a lizard." The Talmud in Yoma
85a, detailing with a person trapped under
a building, rules that a determination of
respiratory failure establishes death without
the need to continue to uncover the debris
to check heartbeat. Proponents of "brain
death" argue that a dysfunctional brain-stem
is equivalent to a decapitated one (physiological
decapitation), that destruction of the brain-stem
inevitably means inability to spontaneously
respire (meeting the criterion in Yoma) and
that subsequent "movement," whether
the Lazarus Reflex or the heartbeat, falls
into category of pirchus since such movement
is not coordinated from a "central root
and point of origin,"14 ie., the brain.
The counter-arguments are: first, physiological
dysfunction is not the equivalent of anatomical
decapitation. The only phenomenon short of
actual decapitation that might similarly qualify
is total liquefaction (lysis) of the brain,
something that probably does not occur until
well after cardiac arrest. Second, according
to Rashi in Yoma, cessation of respiration
is a conclusive indicator of death only when
the person is "comparable to a dead man
who does not move his limbs." While certain
forms of postmortem movement may be characterized
as merely spastic and would not qualify as
"movement," the rhythmic coordinated
beating of the heart and the maintenance of
a circulatory system can hardly be characterized
as pirchus since such a heartbeat is life-sustaining
and identical to that in a normally functioning
individual. Reference is also made to the
teshuvot of Chatam Sofer and Chacham Tzvi
who both write that it is only the cessation
of respiration and pulse (heartbeat) that
allows for a determination of death and the
Gemara in Yoma merely creates a presumption
that upon cessation of respiration and an
appropriate waiting time, one is permitted
to assume that heartbeat has stopped as well.
Since this assumption is obviously not true
in the case of "brain dead" patients
hooked up to respirators whose heartbeats
are monitored, such patients may not be declared
as dead.
The position of R. Moshe Feinstein, whose
psak could well have been definitive at least
in the United States, is unfortunately a matter
of some controversy. His son-in-law, Rabbi
Dr. Moshe Tendler, a Rosh Yeshiva in RIETS
and Professor of Biology, Yeshiva College,
has vigorously argued the concept of decapitation
in Mishnah Oholot.15 His position finds strong
support in Iggrot Moshe, Yoreh Deah III no.
132 which seems to validate nuclide scanning
as a valid determinant of death. This is also
the understanding of the Israeli Chief Rabbinate,
R. David Feinstein (who admits, however, to
having no inside information on the topic),
and R. Shabtai Rappaport, the editor of R.
Moshe responsa.16
Others, however, have interpreted his teshuvot
very differently, pointing out that R. Moshe
reiterated twice (indeed, in one instance
two years after the "nuclide scanning"
reference) that removal of an organ for a
transplantation was murder of the donor.17
(R. Tendler's response: Both of those teshuvot
refer to comatose patients in a persistent
vegetative state who are capable of spontaneous
respiration and are very much alive and not
to those who are respiratordependent.)
They also cite R. Moshe's express opposition
to proposed "brain death" legislation
in New York unless it contained a "religious
exemption."18 (R. Tendler's response:
Although R. Moshe accepted the concept of
"brain death," his support of an
exemption was simply to accommodate the view
of other religious Jews who disagree.) Finally,
they note that in the very teshuvah upholding
the use of angiographic scanning, R. Moshe
approvingly cites Teshuvot Chatam Sofer, Y.D.
no. 338, who insists on absence of dofeik
to breathe, and no other sign of life is recognizable
with them (Vegam lo nikarim behem inynei chiyut
achairim). Their conclusion: R. Moshe merely
validated nuclide scanning as a criterion
to verify one determination of death, i.e.,
absence of respiration, but did not maintain
that it alone was sufficient.19 This author
certainly lacks both the competence and the
authority ro resolve this dispute but presents
it to the reader so that he may see why this
area has been so fraught with unresolved controversy.
III. CONTEMPORARY
VIEWS
The following is a cataloging of the major
schools of thought among contemporary poskim
and rabanim on the brain death issue and some
of the recent events connected with this question.
1. As noted, Rabbi Dr. Moshe Tendler has
been the most vigorous advocate for the halachic
acceptability of brain death criteria. In
his capacity as chairman of the RCA's Biomedical
Ethics Committee, Rabbi Tendler spearheaded
the preparation of a health-care proxy form
that, among other innovations, would authorize
the removal of vital organs from a respirator
dependent, brain death patient for transplantation
purposes. Although the form was approved by
the RCA's central administration, its provisions
on brain death were opposed by a majority
of the RCA's own Vaad Halacha (Rabbis Rivkin,
Schachter, Wagner and Willig).20
2. The Israeli Chief Rabbinate Council, in
an order dated Cheshvan 5747, has also approved
the utilization of "brain death"
criteria in authorizing Hadassah Hospital
to perform heart transplants but on a somewhat
different theory than Rabbi Tendler. Positing
that cessation of independent respiration
was the only criterion of death (based on
Yoma 85 but somewhat inexplicably also citing
Chatam Sofer, Y.D. no. 338), the Rabbinate
ruled that brain death was confirmatory of
irreversible cessation of respiration. Theoretically,
this would allow for a standard far less exacting
than clinical brain death, perhaps nothing
more than a failure of an apnea test. Indeed,
Dr. Steinberg, the principal medical consultant
to the Rabbinate, dismissed any requirement
of nuclide scanning since destruction of the
brain's respiratory center may be conclusively
verified without such a test.21 Since defining
"death" exclusively in terms of
inability to spontaneously respire would lead
to the absurdity that even a fully conscious,
functioning polio patient in an iron lung
is dead, a subsequent communication from R.
Shaul Yisraeli, a member of the Chief Rabbinate
Council, qualified the Rabbinate's ruling
by imposing, as an additional requirement,
that the "patient be like a stone without
movement"22 (but apparently maintaining
that heartbeat does not qualify as such movement).
It is probable, though not certain, that R.
Tendler's test of "physiological decapitation"
and the Rabbinate's newly formulated test
of "respiratory failure coupled with
profound nonresponsiveness" amount to
the same thing though the Rabbinate has not
retracted from its non-insistence on nuclide
scanning.
3. Rabbi J. David Bleich, Rosh Kollel at
Yeshiva University and author of many papers
and a recently published book on the subject,
has stated that anything short of total liquefaction
(lysis) of the brain cannot constitute the
equivalent of decapitation. He further maintains,
relying on Rashi in Yoma, the Chatam Sofer,
and the Chacham Tzvi, that even total lysis
would be insufficient in the presence of cardiac
activity but dismissed the matter as being
only of theoretical importance since cessation
of heartbeat inevitably occurs prior to total
lysis. He also asserts that his position is
not based on stringency in case of doubt but
rather on the certainty that the brain death
patient is still alive, a certainty that could
be relied upon even to be lenient, e.g., a
Cohen may enter a "brain dead" patient's
room without violating the prohibition of
tumat meit.
4. Rabbi Aaron Soloveitchik, Rosh Yeshiva
of Brisk and RIETS, has done slightly further
than Rabbi Bleich. Even if the heart has stopped
and the patient is no longer breathing, the
patients is alive if there is some detectable
electrical activity in the brain.23 It has
been noted, however, that there is no recorded
instance of this phenomenon occurring.
5. Rabbi Hershel Schachter, Rosh Yeshiva
and Rosh Kollel of RIETS, has taken a more
cautious view. Conceding that the concept
of "brain death" may find support
in the decisions of R. Moshe, he concludes
that such a patient should be in the category
of safeik chai, safeik met (doubtful life).
While removal of organs would be prohibited
as possible murder, one would also have to
be stringent in treating the patients as met,
e.g., a Cohen would not be allowed to enter
the patient's room.24
6. Most contemporary poskim in Eretz Yisroel
(other than the Chief Rabbinate) have unequivocally
repudiated the concept of death based on neurological
or respiratory criteria.25 Of special significance
are letters26 signed by R. Shlolmo Zalman
Auerbach and R. Yosef Elyashiv, widely acknowledged
as the leading poskim in Eretz Yisroel (if
not the world), stating that removal of organs
from a donor whose heart is beating and whose
entire brain including the brain-stem is not
functioning at all is prohibited and involves
the taking of life. Unfortunately, these very
brief communications do not indicate if the
psak is based on vadei (certainty) or safeik
(doubt) nor do they address what the decision
would be in case of total lysis.
IV. HALACHIC
AND LEGAL RAMIFICATIONS
Obviously, in a matter so fraught with controversy,
every family confronted with the tragic situation
of a brain death patient must follow the ruling
of its posek. To the extent the patient is
halachically alive, removal of an organ even
for pikuach nefesh would be tantamount to
murder. The principle of ain dochin nefesh
mipnei nefesh- that one life may not set aside
to ensure another life - applies with full
force even where the life to be terminated
is of short duration and seems to lack the
meaning or purpose and even where the potential
recipient has excellent chances for full recovery
and long life. If, on the other hand, the
donor is dead, the harvesting of organs to
save another life becomes a mitzvah of the
highest order. In light of the overwhelming
opposition to the "brain death"
concept, caution and a stance of shev v'al
taaseh (passivity) appears to be the most
prudent course. How the "brain death"
problem will play out in other areas such
as inheritance, capacity of a wife to contract
a new marriage, or the need for chalitzah
if a man dies leaving a brain dead child will
have to await further clarification.
There are, however, two other points that
need to be considered. The argument is occasionally
made if the halachah rejects the concept of
"brain" or "respiratory"
death, Orthodox Jews would be unable to receive
harvested organs on the ground that the recipient
would be an accessory to a murder. As others
have noted,27 this conclusion does not follow.
To the extent the organ in question would
have been removed for transplantation whether
or not this specific recipiient consents,
i.e., there is a waiting list of several people,
the Orthodox recipient is not considered to
be a causative factor (gorem ) in the termination
of a life. There is no general principle in
halachah that prohibits the use of objects
obtained through sinful means. It is true
that if, because of tissue typing and the
like the organ is suitable for only on recipient
and if that recipient declines the transplant,
the organ will not be harvested, an Orthodox
recipient may indeed be compelled to decline.
But this is rarely, if ever, the case.28
A second point: as noted, "brain death"
is legal definition of death in vast majority
of the United States. New York is the only
state that requires medical personnel to make
a reasonable effort to notify family members
before a determination of brain death and
to make "reasonable accommodations"
for the patient's religious beliefs.29 In
all other jurisdictions, doctors would be
empowered unilaterally to disconnect a patient
from life-support mechanism once that patient
meets legal definition of death.30 Hospital
personnel may or may not defer to the wishes
of the family but there s no duty on their
part to do so or even to ascertain what those
wishes are.31
Perhaps one point of consensus that may emerge
in an area otherwise fraught with acrimonious
controversy would be the desirability of enacting
"religious accommodations" exceptions
nationwide. After all, even the proponents
of a "brain dead" standard understand
that others, in all honesty and conscience,
may hold a different halachic view, one which
they should not be compelled to violate. Hopefully,
our community will be responsive to such an
effort.
V. CONCLUSION
"You preserve the soul within me and
You will in the future take it from me "
(Daily Prayers). Only God, Who is the source
of all life, can take life away. We are enjoyed
to cherish and nurture life as long as it
is present, no matter how fleeting or ephemeral.
Yet it is precisely because each moment of
life is so precious that God has imposed on
man the awesome responsibility of defining
the moment of death, the point after which
the needs of the dead may, and indeed must,
be subordinated to those of the currently
living. No one has ever seen a neshamah leave
a body and it is the unenviable task of our
gedolim and poskim to tell us when this occurs.
May Hakodesh Baruch Hu grant them the insight
to truly make out Torah Torat Chayim.
Sources: Jewish
Law |