Brain Death in Jewish Law: Setting the Record Straight

March 25, 2008 6 Comments »
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braind deathIn the March 25, 2008 article “MK: Hundreds of organ transplants may lose funding,” the Jerusalem Post got their research on Brain Death in Halacha wrong. They misquoted the opinion of Rav Moshe Feinstein. Here’s what they said:

… (Rav) Elyashiv has also ruled in the past that brain death does not constitute clinical death according to halacha. In a letter signed by Elyashiv and Rabbi Shlomo Zalman Ohrbach that appeared in the haredi daily Yated Ne’eman in 1992, removing organs after brain death but before cardiovascular failure should be considered close to murder.

In contrast, Rabbi Moshe Feinstein, the leading halachic authority in America, who died in 1986, ruled that brain death could be considered clinical death according to Jewish law.

This is a misunderstanding of Rav Moshe Feinstein’s opinion. According to Rabbi Rappaport (at http://www.hods.org/pdf/R.Feinstein-R.Rappaport.pdf), Rav Moshe only wanted dying people to not have aid in prolonging their death if there is great pain. He does not hold that organs may be harvested from a “brain dead” patient.

Rav Moshe Feinstein

In fact, the history of this story goes to not long after Rav Moshe died. They asked 5 great American rabbis for a definitive position on when halachic death occurs, for the purpose of determining whether organ harvesting was permitted (because of doubt concerning Rav Moshe’s opinion). I know this because my Rabbi, Rav Aharon Soloveichik, was one of the five Rabbis. The other four rabbis were Rav Menachem Mendel Schneersohn (the Lubavitcher Rebbe), Rav Mordechai Gifter of Telshe Yeshiva, OH, Rav Moshe’s oldest son Rav Dovid Feinstein, and Rav Moshe’s son-in-law, Rabbi Dr. Moshe Tendler.

Rav Soloveichik, Rav Schneersohn, Rav Gifter and Rav Dovid Feinstein all held at that time that brain death does NOT constitute halachic death. Rav Dovid said that it depended on the breathing stoping, and that his father would have agreed that, if someone was about to die in the next operation room, there would be cause for leniency. This, however, would not permit organ donation in general for long term usage of organs except after cessation of breathing.

This means that the Jerusalem Post is assuming the opinion of Rabbi Tendler trumps the majority view, which it does not. Then the Jerusalem Post uses this as an excuse to pit Rav Moshe Feinstein’s opinion against the great rabbis, Rav Auerbach and Rav Elyashiv, with whom he did not disagree.

As if Heaven itself was arguing this point, CNN came out with the following article just one day before:

“Man declared dead, says he feels ‘pretty good’” http://www.cnn.com/2008/US/03/24/NotDead.ap/index.html

That article is a must-read for any Orthodox Jewish doctor who has been mislead into looking at “brain death” as “organ harvesting time.”

For further research on this issue, you can check out the Halachic Organ Donation Society’s website and the cool video interview of Rav Dovid at the following page: http://www.hods.org/English/h-issues/videos.asp



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  • Moshe Grussgott

    When you accuse someone else of misrepresenting an opinion you should make sure you haven’t also done so yourself, especially when speaking of gedolim. Unfortunately, in your zeal to twist R Moshe’s opinion to conform to R Aharon’s, you’ve grossly misrepresented R Moshe, as well as the very links you posted to prove your point (both links in fact show the exact opposite! as I’ll detail below). You’ve confused 2 separate issues: whether or not R Moshe disagreed with the others you mentioned on time of death, which everyone holds he DID, vs. how to interpret R Moshe’s differing view, which is not as clear. But everyone agrees there was a disagreement. For you to claim that R Moshe and R Auerbach “did not disagree” when in fact their machlokes on this is one of the most famous and celebrated of modern times is either profoundly ignorant or purposely misleading.

    The following is fact: R Moshe held cessation of breath is death and the other rabbanim you quoted held the heart stopping beating is death. The only question is whether brain death EQUALS cessation of breathing. Science has proven that it does. The brain stem controls spontaneous respiration. Therefore, R Moshe held that brain death is death. The link you posted to R Dovid says just that in fact, that if indeed science says brain death equals no breathing then R Moshe is maskim. He says he doesn’t know the science himself and defers to R Tendler. He also is not maikil only if someone is “dying in the next room” as you put it, but as long as there’s any available recipient.

    R Tendlers view on this can’t be called the “minority” view b/c he’s the only interpreter with knowledge in medicine (PhD in microbiology) and he was R Moshe’s adviser on medical questions, so his interpretation of R Moshe into medical language is actually the only opinion that matters. Also, you don’t actually quote anyone who disagrees with R Tendler’s medical interpretation of R Moshe, only the rabbanim who disagreed with R Moshe himself.

    Astoundingly, you pasted a link to R Rappaport’s article in supposed support of your point when in fact he says the exact opposite. As explained in the article, R Moshe ruled that DYING people should only be let to die naturally (with no aid) if in great pain, AS OPPOSED TO brain dead people, who were ALREADY DEAD (not dying) and therefore could have the respirator pulled and even organs taken out under any circumstance. This was the whole point of the distinction. R Rappaport (who compiled the relevant sections of igros moshe) agrees 100% with R Tendler, as he reiterates many times in his interview.

    As a final point, I noticed you refer to every Rav as “Rav” at least once except for Rav Tendler who you refer to repeatedly only with the English title “Rabbi”. Whether this was subliminal or on purpose you have a lot of chutzpah.

  • Moshe Grussgott

    Also, R Moshe’s view on time of death is not necessarily related to his view on organ donation, since one can oppose organ donation even from a dead body (for reasons such as the prohibition to desecrate a dead body), as R Dovid implies in the video, but you conflated these 2 issues as well.

  • http://jerusalemdefender.blogspot.com/ Alan Friedlander

    You commented on many aspects of the article. Thanks for taking the time to do so. If I skip anything feel free to reply, as I don’t have the time to do justice in a single email.

    First, I quote Rav David’s interpretation of his Rav Moshe’s opinion, so Rav Moshe’s opinion is stated in my article, if not as clear as you would like.

    Second, there is no disagreement AS WORDED IN THE JERUSALEM POST ARTICLE between Rav Auerbach and Rav Moshe. There _was a disagreement_, but not as it was reported in the Jerusalem Post. My small article did not attempt to capture the entire body of halachic knowledge on this vast issue, and in fact I encouraged people to study more at the end of the article.

    Third, Rabbi Doctor Tendler, is indeed an expert in many things. He is probably very good as a posek stam. But as a posek stam Rabbi Doctor Tendler cannot compare to the other Rabbanim who are gedolay hador, except as a specialist on medical halacha to the point of being the equal of a gadol in that area of halacha, but otherwise _in comparison to the others_ in the general concept of posek he is not one of the gedolay hador. If he sat at the head of a yeshiva all day answering any and all queries, or if he wrote something like Rambam’s Mishneh Torah, that would change things, otherwise we cannot disrespect the other Rabbanim by giving him more honor than is appropriate under the circumstance. His medical degree mean ZERO to his ability to hold an halachic opinion. If you believe contrary, then your bias is shown. No true posek poskins on an issue as sensitive and serious as this unless they know as much as a doctor knows on this issue. Your comments ride on dangerous ground with respect to the concept of daas Torah and I object to their implication.

    Fourth, organ donation is linked by the medical field itself to the time of death, as many organs become completely useless once taken from a cold corpse. So timing of organ harvesting is an issue in this discussion. What kind of an issue? Not up for discussion in this tiny article, please feel free to pursue further research if you wish.

    There is only so much you can cover in under 1000 words on such a large topic and I surely meant no disrespect to any who deserve respect. I think we all need to learn more about this issue, and the arrogant swagger of the incorrect Jerusalem Post article had to be confronted with an equal swagger in the opposite direction just to set things more straight than they were before I wrote anything on the topic. I even tried to first write the Jerusalem Post before writing this article, but they left no option for commentary or method to contact the editor on their website that I found, so an act of public protest was necessary through other means. Fortunately, Jewneric was there to provide a way to have this discussion.

  • Moshe Grussgott

    Thanks for the reply. A clarification: I meant only that R Tendler’s INTERPRETATION of R Moshe is the only interpretation of RM that matters b/c he knows the medicine. I did not mean, G-d Forbid, that R Tendler’s PSAK on any medical issue is the only psak that matters just because he knows medicine better. (I see how it could have sounded like that though from my wording). I generally agree with your statement of daas torah and the fact that every posek has a medical adviser. My point was that RT was RM’s medical adviser, so only his interpretation of RM’s psak should be seen as the correct interpretation of that psak, that’s all. Also, again, you don’t actually mention anyone who interprets RM’s psak differently (is there anyone who does?) other than R David who simply says he doesn’t know.

    I’ll grant that RT is a posek stam and not a gadol per se, but that has nothing to do with treating him with the proper objective respect. You don’t elevate one Rav by denigrating another. You still must refer to a Rav as a Rav (especially if, as you concede, he’s a posek!). You could have differentiated by referring to the others as HaGaon or another such extra honorific. Ironically, in Igros Moshe, RM refers to RT in many places as Harav HaGaon and other such honorifics! (I’ll give you many such sources if you want). Is it your contention that only gedolim are to be referred to as Rav? You’re frummer than RM himself on this! and you disrespect him as well by not referring to RT properly, as he did.

    You can’t conveniently evade everything by saying you didn’t mean to cover every scientific point in your piece. You did make one point that I disputed: that Jpost was wrong to equate brain death with breath cessation. This is a scientific question. Do you dispute this scientific equation of the 2? If you want to dispute someone on science you do have to provide scientific evidence. I agree that this forum is too small to do that, which is precisely why your piece is overly simplistic. What you should have simply said was that RM himself didn’t say anything about brain death, that that’s just a medical interpretation of his psak, and that everyone should do the research on their own if this is true. But you provided no evidence that Jpost or RT are categorically wrong. I do sympathize with your urge to counteract the inaccurate swagger of the secular press, but we have to do so responsibly, not with equally emotional swagger if it’s not backed up with solid fact.

  • http://jerusalemdefender.blogspot.com/ Alan Friedlander

    I am willing and usually call Rabbi Doctor Tendler, Rav Tendler, (usually Rav Moshe Tendler, to differentiate with his son R’ Mordechai, when outside of the context in which he was quoted in this article. It could have been worse, at least I don’t disrespect him by calling him by a nickname like RT… :-)

    When Rav Dovid says he doesn’t know, is he saying that it is or should not be obviously clear to anyone what Rav Moshe’s opinion is on the entire matter, or is Rav Dovid saying that we must heed whatever Rav Tendler says on the matter. Based on the video available of Rav Dovid at the website quoted above, and based on the teachings of Rav Aharon Soloveichik, I would think it is the closer to former, not the latter.

    I do not question true science, which humbly allows for what it does not currently know. Unfortunately in the medical field today, there is a lot of black and white and no room for “miracles”. CPR would have been considered a miracle for much of history. I recall hearing that according to some opinions of halachic breathing, it does not refer to independent breathing, but even that which is operated by machine as the brain lays apparently dead. Hence the position of Heart-death as a better mode of proof of death. As in the case of the CNN article, brain death alone is not true death in metziyus/actuality. I thought it was implicitly clear that I am stating that “science” as a field does not currently know everything. In fact few discoveries would be possible if all scientists said, there is nothing more to discover rather than, “why is this” and “what if I try that”. Science does not currently know how to reverse a brain death as well and easily as they do heart “death” via CPR, but most likely will in the hopefully not too distant future.

    Better a weak protest than none at all, and as the Jerusalem Post article was weaker still than my effort, I don’t think it was wrong to run with what I had at the time.

    Is that everything? As I am neither Posek as of yet, nor Doctor I don’t know what more I could qualitatively add to this topic without more research, so when in doubt, Chazal (the sages of the Talmud) say that silence is the way of wisdom.

  • Moshe Grussgott

    Well, at least we can both agree that Jpost and the press in general are often irreverent and ill informed RE religious issues and that there’s a need to protest that, so you are to be commended for the effort. I just wanted to show that those who do believe in organ donation after brain death have a halakhically sound basis, just as those who oppose it have halakhic basis. Anyone more interested should go to the HODS website where they have many video testimonials, articles, and mekorot outlining both sides of this very heated issue.