The Brain Death Controversy in Jewish Law
Rabbi Yitzchok Breitowitz
1. The literature on brain death - medical, legal, halachic-is huge and only selective citations can be given here. The best nonhalachic survey of the legal and medical issues can be found in a report of the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behaviorial Research, Defining Death (1981). Halachic treatment (as well as good discussion of related legal and medical approaches) can be found in a just-published book of Rabbi J. David Bleich, TIME OF DEATH IN JEWISH LAW (Z. Berman, 1991) which is a compendium of Bleich's previously-published Hebrew and English articles expounding his well-known opposition to "brain death" criteria. An excellent symposium (which also presents R. Tendler's opposing view) appears in Volume 17 of the JOURNAL OF HALACHA AND CONTEMPORARY SOCIETY (Spring 1989). Finally, the October 1991 JEWISH OBSERVER contains an interesting exchange of correspondence between Rabbi Tendler and Chaim Zweibel, General Counsel of Agudath Israel of America.
2. A Definition of Irreversible Coma - Report of the Ad Hoc Committee of the Harvard Medical School to Examine the Definition of Brain Death, 205 JAMA 337-350 (1968).
3. President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death (Government Printing Office, 1981).
4. See People v. Eulo, 63 N.Y. 2d 341 (1984).
5. Brain stem death occurs, when due to trauma, the brain swells and the pressure in the skull rises to exceed blood pressure. The brain is deprived of blood and oxygen and the brain tissue begins to liquify [lyse]. While total dysfunction occurs minutes after deprivation of oxygen, total liquification does not take place until some time after cardiac death, indeed sometimes several days after internment.
6. A good description of the scientific aspects of brain death can be found in 24 TRADITION 1, 8-14 (Summer 1989) (Dr. Jakobovitz's annotations to the Chief Rabbinate's ruling) and in Kielson, Determining the Time of Death-Medical Aspects, 17 JOURNAL OF HALACHA AND CONTEMPORARY SOCIETY 7-13 (Spring 1989).
7. See sources cited in Bleich, Of Cerebral, Respiratory, and Cardiac Death, 24 TRADITION 44, 61 n.5 (Spring 1989), reprinted in TIME OF DEATH IN JEWISH LAW, pp. 129-160.
8. Much of this information was derived from the articles cited in note 5 and a communication of Rabbi Moshe Tendler to the members of RCA dated Summer 1991.
9. Apnea testing takes many forms. One standard test may involve providing the patient with 100% oxygen for 20-30 minutes through the respirator and then shutting off the machine, thereby allowing the carbon dioxide in the blood to rise but at the same time allowing for passive gaseous diffusion of oxygen through the tubes of the machine or through a tube inserted directly into the trachea. This allows the CO2 in the blood to rise, enabling a test of the respiratory response without depriving the patient of necessary oxygen in the interim. While a normally-functioning brain stem would induce respiration at a fairly-low pressure of CO2, a diagnosis of death will not be confirmed until the CO2 pressure is considerably above the normal triggering point but nevertheless fails to elicit a respiratory response.
10. Note that a flat EEG (electroencephalogram) is not a necessary condition for a brain death diagnosis. A flat EEG does not in any event insure brain stem death but at best, indicates only absence of (perceptible) upper brain activity. Conversely, even in patients with a brain death diagnosis, sporadic, minimal EEG activity has occasionally been found. The Harvard criteria regard a flat EEG as helpful and confirmatory but not essential to a brain death diagnosis.
11. Compare letter of Rabbi Tendler printed in the October 1991 JEWISH OBSERVER with the degree of skepticism expressed by Dr. Keilson, supra note 5, at 12. Indeed, some earlier studies had indicated that angiography only measures deficit, not cessation of blood flow even to the cerebrum and that up to 24% of normal blood flow could still be present. Modern refinements in these techniques probably allow for a definitive determination of zero blood flow to the cerebrum but "persistent perfusion and survival of the brain stem" remain a distinct possibility. See studies cited in Bleich, supra note 6, at notes 13-21. I have no information as to the accuracy of any of those studies; I simply point them out for the edification of the reader.
12. See the sources in the medical literature cited by Bleich, supra note 6, at 62 n.5 [at 133, n.5 in the book].
13. See Teshuvot Chatam Sofer, Yore Deah no. 338; Teshuvot Chacham Tzvi, no. 77; and Igrot Moshe, Yore Deah II, nos. 164, 174; Yore Deah III, no. 132; Choshen Mishpat II, nos. 72-73.
14. See Peirush HaMishnayot of Rambam to Oholot 1:6.
15. See, for example, Rabbi Tendler's letter in October 1991 JEWISH OBSERVER.
16. The Chief Rabbinate's ruling accepting "brain death" explicitly relies on R. Moshe for authority. See TECHUMIM, Vol. 7, 187-192 (5746) and Jakobovitz, Brain Death and Heart Transplant: The Israeli Chief Rabbinate's Directives, 24 TRADITION 1-14 (Summer 1989); R. David's understanding is quoted by R. Tendler in his own October letter to JO; and R. Shabtai Rappaport's letter appears in 12 ASSIA no. 3-4 (Kislev 5750), pp. 10-12.
17. See Igrot Moshe, Yore Deah II, no. 174 (5728) and Choshen Mishpat II, no. 72 (5738). The teshuva in Yore Deah III, no. 132 cited in support of brain death criteria was authored in 5736.
18. Written statement of 8 Shevat 5737.
19. It should be noted, however, that the teshuva concerning nuclide scanning was addressed to R. Tendler for his own guidance, surely entitling his understanding of the responsa to great weight.
20. The current status of the RCA proxy is unclear. In light of the negative psak of Rabbis Auerbach and Elyashiv, Rabbi Marc Angel, the President of the RCA., circulated a cover letter to the membership cautioning that the proxy form should not be used until the individual rav has thoroughly studied the issue and consulted experts in the field. Rabbi Tendler has similarly stated that at least portions of the proxy form were merely a "first draft" to be circulated to rabbanim. Yet the RCA continues to make the form available to the general public without informing them of these disclaimers. It is respectfully submitted that this inadvertent oversight be corrected.
21. Dr. Steinberg's paper, originally prepared to assist the Chief Rabbinate in their deliberations, appears in OR HAMIZRACH (Tishrai 5748).
22. Quoted in Bleich, TIME OF DEATH at 167-168.
23. His views may be found in 17 JOURNAL OF HALACHA at 41-50 (Spring 1989).
24. Rabbi Schachter's intermediate position may be found in the same journal at pp. 32-40.
25. These include R. Elazer Schach, Rosh Yeshiva of Ponevez; R. Yitzchok Weiss, recently deceased Rav of the Eida Chareidis; R. Yitzchak Kulitz, Chief Rabbi of Jerusalem; R. Eliezer Waldenberg, author of Tzitz Eliezer; R. Nisim Karelitz, Chief Rabbi of Ramat Aharon; R. Shmuel Wosner, late Rabbi of Zichron Meir; and R. Nosen Gestetner. References to those decisions can be found in Bleich, TIME OF DEATH at 144-145.
26. Letter of 18 Menachem Av 5751. A second letter reaffirming this stance was issued during the Aseret Yemei Teshuva 5752.
27. See comments of R. Soloveitchik, cited in note 22.
28. According to a just-published article in the JOURNAL OF THE AMERICAN MEDICAL ASSOCIATION (Jan. 1992), the demand for hearts, kidneys, and lungs far exceeds the available supply.
29. See 10 N.Y. C.R.R., sect. 400-16 (1987). The regulation mandating religious accommodation is also reprinted in an excellent article by Zweibel, Accommodating Religious Objections to Brain Death: Legal Considerations, 17 JOURNAL OF HALACHA 49 (Spring 1989).
30. Of course, even in New York, only "reasonable accommodation" is required and one can well imagine triage considerations forcing patients off respirators prematurely.
31. Moreover, even where doctors defer to the family's wishes, insurance companies may refuse to pay the costs of sustaining what is legally-regarded as a cadaver. This is likely not to be a problem in New York since the regulatory duty of "reasonable accommodation" prevents a determination of brain death.
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