YU’s Medical Ethics Conference: Organ Donation and Brain Death

This past Sunday YU’s newly formed Medical Ethics Society’s held its first annual conference, this one being titled, “Organ Donation: A Matter of Life and Death – A Conference on Organ Donation in Jewish Law.” In general when YU puts on one of these events, the result is positive and this was no exception. The organizers did a fantastic job of setting up the program and managing the flow of the conference, as well as adapting to unforseen scheduling conflicts. The speaker list was very impressive, including a nice range of speakers and topics, but more importantly, everyone spoke surprisingly well. Despite the complexities and nuances of the halakhic and medical issues involved, all speakers were clear, lucid, and articulate making these complicated topics accessibly to a lay audience. I found this to be especially notable in the Roshei Yeshiva R. Willig, R. Schachter, and R. Tendler who were all very well focused on their presentations. The end result was a highly poignant, informative and occasionally entertaining. I was told that there is a plan to have something published for the event, and perhaps the audio of the presentations will find their way on line. Until then, here’s my recap and analysis of the conference including the classic R. Schachter/R. Tendler showdown on the controversial topic of Brain Death.
UPDATE You may also want to check out CuriousJew’s transcription.

Living Organ Donations
I have to admit that before this conference I generally associated organ donation specifically with transplants from deceased donors. However, there are thousands of organ transplants from living donors, one of the more common ones being kidney transplants. The first speaker, Adinah Raskas was a recipient of a kidney from someone in her community. In an emotional presentation, Mrs. Raskas shared her painful experiences in waiting for, and her enduring gratitude upon receiving her kidney transplant. More importantly, she reminded the audience that at the core of all the esoteric technical arguments is a human life, one whose existance is depending on the decisions of others.

Dr. Stuart Greenstein presented the statistics on living organ donations in terms of success rates and risks. I don’t have the exact figures, but the numbers were exceedingly in favor of a high success rate for the recipient and surprisingly low for the donor. On the halakhic side, R. Willig addressed the halakhic obligations of kidney transplants, given the low risk and the benefit of saving a life. Without getting into the details, R. Willig seemed to prefer the reading of R. Ovadia Yosef and others who hold that since there is a modicum of danger involved, kidney donations would be classified not as a hiyyuv but a mitzvah (Yehaveh Da’at 3:84).

Practically speaking, I think healthy people might still be queasy about finding random people to whom they would donate organs. But I do think that these lectures will minimize hesitancy if not actually encourage people to donate for someone who is closer to them. In any event, if you are interested in living organ donation, please check out the United Network for Organ Sharing.

Brain Death
The topic of Brain Death in Jewish Law has been discussed for several years already. The ramifications are obvious in that if brain death is considered halakhic death we can – indeed we must – harvest the organs to save someone’s life. On the other hand, if brain death is not death, then the act of harvesting organs could in fact be murder. This is the core of the debate and many of the relevant opinions may be found in this excellent detailed summary. This conference included two of the more cited opinions Rabbi Hershel Schachter and Rabbi Moshe Tendler. I’ll do my best with the notes I took, and if anyone has corrections or can fill in the gaps, any assistance would be greatly appreciated. If you ever do have the opportunity, I highly recommend hearing both R. Schachter and R. Tendler in person.

Unfortunately, R. Schachter was not present at the conference itself. Due to a scheduling mixup, R. Schachter delivered his presentation from the Museum of Tolerance in Los Angeles (more on this later). To summarize R. Schachter’s position, brain death is not considered halakhic death, but rather we would require what he called “blood death” or to have all of the vital organs to cease functioning. The main basis for his argument is based on a Rambam (I did not get the actual source) who lists five vital organs including the brain, heart, and liver (I missed the last two). These organs are of such importance that we equate it with the entire body. The question is to what extent would we corollate the death of these organs with the death of the whole person. R. Schachter offered three possibilities. First is that if any of these organs die, we treat the entire person as being dead. But this would be an implausible suggestion since liver failure is obviously not necessarily fatal. The second suggestion of following the majority of these organs is equally questionable. Therefore R. Schachter argued that since we do not know how to evaluate these different vital organs, we must follow that brain death would be a safek met – the person’s life status would be in a state of halakhic doubt. Therefore, according to R. Schachter, since brain death cannot be considered definitively to be halakhic death, we cannot harvest organs since that would be halakhic murder.

R. Schachter cited other sources comparing blood flow to life, such as Devarim 12:23ki ha-dam hu ha-nefesh” and a teshuva from R. Moshe Feinstein permitting tefillin to be worn on a paralyzed arm which was still receiving blood flow. R. Schachter also added that there is a debate within the medical community itself regarding the viability of brain death, which would add to the halakhic safek of the life status. To the best of my understanding, the issue of safek is the core of R. Schachter’s position.

Also of interest were R. Schachter’s responses in the question and answer session. A doctor asked that if harvesting organs is murder – since the donor was not halakhically dead – then how could Jews accept any organ donations? Secondly, if word got out to the medical community that Jews do not donate organs, then the result would be that Jews would be less likely to receive organs when they would be in need. Regarding the second question, R. Schachter answered that just because non-Jews disapprove that does not mean that we can commit murder. On the first point, R. Schachter suggested that since the doctors are harvesting the organs already – i.e. they are already killing the donor – then at that point it would not be problematic to receive the organs.

Upon the conclusion of the session CJF Dean R. Kenneth Brander1 recognized the ramifications of R. Schachter’s position2 interjected by extolling the intellectual and academic atmosphere at Yeshiva University where we recognize the consequences of presenting different opinions giving the individuals the tools to decide how to act “l’ma’aseh” (in practice). More on this a little later as well.

Before I address R. Tendler’s presentation, I must mention in the interest of full disclosure that I was in his shiur for 2.5 years as an undergraduate at YU. As such I would understand if a first-time reader would assume that my relationship with R. Tendler would bias my review and my disposition to his position. Those who know me well, especially those who were in shiur with me (and R. Tendler himself), would confirm that while I respect R. Tendler immensely I have never been shy about challenging him when I disagreed with one of his positions. Furthermore, it is notable to mention that unlike R. Schachter, R. Tendler included in his presentation a rebuttal of the opposing viewpoint. Unfortunately, despite the long-standing disagreements on the matter, there was no actual debate of the issue since R. Schachter was not present at the time.

Having been in his shiur, I can honestly say that R. Tendler was in classic form in style, content, and humor. While he was respectful of R. Schachter’s acumen,3 R. Tendler proceeded to not only dismantle R. Schachter’s augments (and others as well) but also offer a critique of his overall system.

R. Tendler began by pointing to his source sheets, noting that the YU logo was titled to the right – and apparently so is the Yeshiva. Pesak for R. Tendler is not about leaving a safek, throwing up ones hands, and being mahmir. Rather, the point is to work until an acquittal resolution is reached and the reason for R. Schachter’s safek was that he ignored other relevant data. In the issue of brain death, R. Tendler finds sufficient halakhic and medical evidence to prove the brain death is conclusively halakhic death.

I do not have the space here to cover all the halakhic sources. Of primary interest is M. Ohalot 1:6 which states that a decapitation is considered death even if the body convulses afterwards. R. Tendler referred a case where a decapitated sheep still had its internal organs functioning to the point where it was able to give birth. Although there was some internal “life” the animal was clearly halakhically dead.

Another source cited was B. Hullin 21a, which in discussing the death Eli Hakohen (I Samuel 4:18) seemingly defines the disconnecting of the head from the body to constitute death. Indeed, Shulhan Aruch seems to apply this definition l’halakha saying that an animal which breaks its YD 370:1 rules that if the mafreket is broken, even if the animal is “still alive” it is as if he is dead and is considered tamei.

R. Tendler’s rebuttals to his critics were generally along the lines of Rabbis not knowing or understanding the medical reality necessary for a correct interpretation of halakha. For example, the Hacham Tzvi (missing source) requires the cessation of breathing for there to be halakhic death, but he also considers the heart to be a respiratory organ. Furthermore, many authorities cite B. Yoma 85a which apparently considers the lack of breathing to determine death. However, Rashi adds in the idiom “im domeh l’met” if he is like a deceased.

This Rashi is a particularly sensitive issue for R. Tendler since most Rabbis cannot tell the difference between a patient who is comatose and one who is brain dead and therefore cannot apply Rashi’s qualification of “domen l’met.” R. Tendler referred to established medical protocols for determining brain death such as an apnea test to measure a gag reflex. For the sake of the patient’s relatives, R. Tendler also suggested a adionuclide cerebral angiography which would show the absence of blood circulating to the brain. R. Tendler argued that when official protocols concluded there was brain death, there was never an instance of recovery. Furthermore, the debates in the medical community are not regarding the viability of brain death, but how much brain activity is required.

The final segment of R. Tendler’s presentation was rushed for time purposes, but he did address some of the misinformation regarding other people’s opinions. R. J.D. Bleich claims that R. Moshe Feinstein did not hold of brain death, to which R. Tendler presented explicit teshuvot of R. Feinstein affirming brain death and a letter of confirmation from R. Moshe’s son R. Dovid Feinstein.4 R. Tendler also produced a letter signed by R. Schachter and R. Willig claiming that the Rabbanut never mentioned brain death in their teshuva, followed by the Rabbanut’s actual teshuva with the term “brain death” underlined.

I should mention that R. Tendler also discussed the halakhic issues relating to brain death beyond organ donation. R. Moshe’s teshuva on brain death in the context of pulling the plug of a respirator, not even with the ethical benefit of saving a life. Furthermore, if brain death is in fact halakhic death then there is a biblical commandment to bury the deceased immediately, kohanim would be forbidden from entering the room, and the person’s family would be considered in the onen state of mourning. Thus being “strict” on brain death could very well have unintended halakhic consequences. Finally, the attitudes of non-Jews is an important factor in halakha to the extent that we can be mehallel shabbat because of it. While there will obviously be limits to how far this would be applied, it is not something which may be easily dismissed.

After R. Tendler concluded, the only question asked was “what should we do practically” given the disagreement between the two opinions. R. Tendler said that it was unfortunate that R. Schachter could not be in attendance, but we should give him two weeks to get the transcript at which point R. Schachter will change his mind. After the crowd stopped laughing,5 R. Brander repeated his earlier comments extolling YU for presenting two different opinions in the spirit of intellectual honesty and academic debate.

Some Final Thoughts
While R. Tendler’s response was clearly meant as a joke, the final question and answer did reveal some mixed-signals regarding the nature of this debate. Based on the merits of their presentations – not of my recap of them – I cannot see how an honest objective observer would prefer R. Schachter’s opinion. I’m going to assume that the questioner was asking out of loyalty more than logic. The lack of an immediate response by R. Schachter was unfortunate, but only partially understandable. True, R. Schachter was in Los Angeles at the time, but this discussion has been going on for years, more than enough time for to formulate a detailed public rebuttal of R. Tendler.

People can and often do disagree. By giving different people the forum to express their opinions you are automatically affirming the speaker’s right to their opinions. However, a crucial part of academic discussions is the principle of peer review which, though imperfect, is supposed to regulate the integrity of discourse.

The problem is that there is a great deal of emotional and religious investment involved following one’s Rosh Yeshiva. I could understand if R. Brander wished to give deference to his rebbe, but I’m curious if the appeal to intellectual debate will extend to other topics as well. In many halakhic debates, R. Schachter dismisses and censures those who are not, in his mind, at the level of competency to warrant having an opinion. Yet regarding the issue of brain death, R. Schachter disagrees with a PhD in biology, someone whom we would expect to have a vastly superior knowledge and understanding of the issues involved.

Then again, we could be seeing a new trend in Yeshiva University where controversial halakhic topics can be discussed and debated in an open forum. I could not think of a more welcome change to YU and I would suggest that organizers use this medical ethics conference as a positive precedent.

1. R. Brander himself is a card-carrying member of the Halakhic Organ Donor Society, but there is no indication of whose opinion he follows.
2. Not the least of which was R. Tendler’s impending response.
3. R. Tendler also noted that R. Schachter was his student in MTA.
4. And of course this is in addition to R. Tendler’s own relationship R. Moshe Feinstein – his father-in-law.
5. Seriously.

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