Chapter Seven: 1976

More Halakhic Considerations on Brain-Death

 

In 1976 two additions to the halakhic discussion of death criteria were published. The first was a comprehensive article on the determination of death by pediatric neurologist Avraham Steinberg.[1] Steinberg was well on his way to becoming recognized as one of the major authorities on questions of halakhah and medicine (which he remains to this day) eventually authoring an entire encyclopedia on their interface. In 1976 he argued against the use of brain-death criteria, yet ten years later he became one of their main proponents in the religious establishment. The second piece was a psaq written by R. Feinstein which would become the halakhic basis for the Chief Rabbinate’s own decision ten years hence. While both of these documents were important contributions to the halakhic discourse on brain-death in their time, analysis of R. Feinstein’s psaq will be the main focus of this chapter. As I will describe in Section II, it stood at the center, not just of the Rabbinate’s decision, but of much controversy as well. R. Feinstein’s intent and his psaq’s meaning have been debated for over three decades.

 First, however, it is worthwhile to briefly describe Steinberg’s contribution to the brain-death debate at this stage. Although he would later serve as one of the medical advisors to the Rabbinate committee which drafted the decision on heart transplants, his stance at this point in time offers a stark contrast to his support of the Rabbinate’s decision in 1986. Understanding the basis for his initial opposition to heart-transplants helps contextualize his later endorsement of brain-death. (The Rabbinate’s decision must have, in his eyes, properly dealt with the halakhic and ethical problems he had raised here.)

A good portion of Steinberg’s article addressed the philosophical aspects of determining death. Like Gervais, Steinberg presented a picture of death as an amorphous process, yet given to more exact determination through the use of

…rational criteria, although there exist strong differences concerning how they should be chosen.  … to a great extent we can say that any system of criteria is artificial, for it comes to define a point and certain stage within a number of advanced states.[2]

He faulted loss of brain function as a criterion for death for several reasons. First, equating the death of the person as a whole to the end of brain function needlessly differentiated between vegetative and intellectual life. He felt this was a classic example of outmoded Cartesian dualism. Second, the ongoing dispute regarding what exactly needed to be measured in order to determine loss of brain function– the neocortex, the brain-stem, the whole brain – was symptomatic of this criterion’s weakness. Third, he insisted that ethically, any criteria used must be designed only for the good of the patient himself and not to enable others to benefit from his death. In his view, transplant-driven brain-death did not fit this ethical requirement. [3]

After providing an overview of actual brain-death criteria, Steinberg moved on to discuss the halakhic perspective. He covered the now familiar source material from the Talmud through its modern interpreters.[4] Ultimately, his rejection of brain-death was tied to the philosophical problems that it presented. Steinberg argued that somatic life in the body’s important organs also counted as life for the halakhah. It could not be dismissed as mere twitching of a lizard’s tail.[5] 

Finally, he found that modern medical practice did make a difference regarding the traditional need to wait for a short time after the determination of death until actual burial.

…in my opinion, when we are dealing with organ transplants it is possible to ignore this custom of waiting, as death has been determined according to all of the [traditional] criteria and in accordance with the diagnostic tools available to the doctor at a given time.[6]

For Steinberg, technology could be used successfully as an interpretive tool to check and test traditionally valid criteria, but did not affect the criteria themselves.[7] If the cessation of respiration could be ascertained through modern technological means instead of traditional tests (like looking for chest movements) this could enable quicker determination of death possibly aiding in the retrieval of viable organs from dead donors. However, while the fixing of an exact ‘moment of death’ may vary in individual cases according to the available technology, no change in the definition of death is warranted.[8]

 

The most significant event of the year, however, was a third responsum authored by R. Feinstein.[9] This responsum would eventually serve as the major linchpin of the psaq of the Israeli Rabbinate, yet it would also become the center of much controversy (which continues up to this day). The amount of discussion devoted to its actual meaning is an exception to the usual lack of dialogue that I have described above.

The interlocutor to whom this responsum was written was R. Feinstein’s son-in-law, R. Moshe Tendler – a well-known American teacher, community rabbi and professor of biology who dealt extensively with medical-halakhic issues (always relying upon his father-in-law’s halakhic authority in his decisions).[10] In discussing this most controversial of responsa, I will first carefully unpack the language and meaning of the text and then move on to describe the thirty-year debate over its interpretation.

The responsum begins with R. Feinstein reiterating his earlier position that continuous cessation of respiration is the halakhic criterion for the determination of death. However, he then acknowledged that there are three other types of patients who required more complex testing than merely waiting for some time after respiration has ceased. The first was the seriously ill respirated patient. As respiratory assistance does not allow for anoxia, the patient’s true status is masked and testing can only be accomplished when the patient is not being respirated. Such testing is no simple matter.

 Through this machine, it is possible that he will breathe even though already dead, for this respiration does not render an individual alive. Now, if no other characteristics of life are noted [in this patient], we see he has no feeling, even no response to [being stuck with] a needle (which is called a coma), as long as the machine is functioning, it is forbidden to remove it from his mouth lest he is living and this action will kill him. However, when the machine stops functioning, due to the emptying of the oxygen tank, it should not be immediately replaced for a short time period -15 minutes – and if he is not alive he will not breathe [independently] and they will know that he is dead….[11]

This apnea test is to be carried out from time to time: any sign of independent respiration is to be noted as a sign of life and the respirator must be immediately replaced.[12]

Another group of patients was also exceptional. R. Feinstein argued that trauma victims may have suffered reversible nerve damage which has affected their ability to breathe independently. In time, though, this damage may heal and respiratory ability can and may return.

…even though they cannot breathe independently and exhibit no other signs of life, it is possible that they are not yet dead.[13]

Obviously, such patients would fail the above apnea test and be permanently disconnected from respiratory support even though not actually dead, but only injured. A solution to this problem was suggested by his son-in-law who described the use of arteriograms.

… you [R. Tendler] have said that there is a procedure by which expert physicians can determine through injection of a liquid into the body, into the arteries, whether the connection which exists between the brain and the entire body has been severed. If it [the dye] does not reach the brain, it is clear that the brain no longer has any connection to the body and [the brain] has completely rotted away so that it is as if the head has been virtually removed. If this is the case, we must be stringent with those [patients] who have lost all feeling…and cannot breathe at all without the machine and not decide that they are dead until they administer this test. If they see any connection between the brain and the body, even though he cannot breathe, he must be respirated—even for a lengthy time period. Only when this test reveals no connection of the brain to the body can the loss of respiration render him dead.[14]

Finally, there was the need to establish that actual irreversible cessation of respiration had occurred. Patients suffering from barbiturate poisoning and the like, needed to be carefully examined in order to eliminate possible secondary causes for respiratory failure before disconnection from life-support. A blood test showing no further presence of poison was suggested.[15]

This responsum is clear in distinguishing between assisted breathing and independent respiration. Only loss of the latter holds any halakhic meaning in determining patient status. This, of course, only in the case where the patient shows classic neurological unresponsiveness as well, with no reaction to pain stimulus such “a needle” pushed into the body.[16] What is not clear, however, is what R. Feinstein meant regarding his instructions for the use of an arteriogram. It was supposed to determine that a patient has been ‘virtually’[17] decapitated. As the breathing of mechanically respirated patients is hermeneutically neutral, its presence cannot serve as a sign of life. Only testing a patient off-respirator can offer evidence of life or death. It does not seem that any final (or irreversible) loss of respiratory capacity can be assumed so long as artificial respiration is continuing. The continually resuscitated trauma patient cannot be adequately tested. But, he can be given an arteriogram. The question is whether R. Feinstein meant to have this test replace the usual test needed for independent respiration in order to prove that death had occurred?

Note that the language of the responsum states that, “only when this test [the arteriograph] reveals no connection of the brain to the body can the loss of respiration render him dead.” It is not disconnecting the patient which renders him dead, but the cessation of respiration. Which loss of respiration is being referred to here? Is it what can be evidenced only after the patient’s artificial respiration is disrupted as with other patients? If this is so, then, the “stringency” of the test lies in its serving as an additional step before breathing capacity can be tested.[18]

Or by loss did R. Feinstein mean the capacity which had already been lost but was being masked by the machinery? This is referred to at the beginning of his discussion of trauma victims, “even though they cannot breathe independently and exhibit no other signs of life, it is possible that they are not yet dead.” This possibility of continued life exists because the loss may only be temporary. Does this potentially-only-temporary loss get coupled with the severing of the brain-body connection so that it becomes understandable as irreversible, i.e. halakhically meaningful?

If the latter is the case, then, it may appear that R. Feinstein has replaced what he has insisted is the only halakhic criterion for death – continuous cessation of respiration until anoxia – with something different: brain damage which establishes the permanence of a given condition which is responsible for a current loss of respiratory capacity. However, in an earlier responsum he was quite clear that the death of the brain was not equivalent to death.

 But the definite truth is that it is not the cessation of the brain’s functioning which is equivalent to death, for as long as one breathes he is alive. Rather, the end of the brain’s functioning is that which causes cessation of respiration.[19]

 

The loss of brain function, though, can secondarily cause death through ending respiration.

Conversely, in the same earlier responsum, R. Feinstein also contended that the use of an ECG which showed cardiac activity was conclusive proof of life – despite the cessation of respiration.

Therefore regarding an individual in whom life activity is seen through the use of an electric radiogram … he is alive even though he is not breathing.[20]

The trauma patient, even though he is not breathing (he is merely being resuscitated), may also show evidence of life – cerebral blood flow. If this is the case, it seems clear that he should be considered as alive as one whose heart is beating. This explains why the arteriogram is a stringency (“we must be stringent”) – it is designed to check for a sign of life in the non-respirating patient who would ordinarily (recall the exceptional entombed character who lived) be considered dead. When such a case presents itself, it cannot be dismissed. However, if no other signs of life are found, cessation of respiration – the usual sign of death – functions as usual. It would appear, then, that once no contrary signs of life are found this patient is considered dead.

However, one other factor is also relevant: the status of the decapitated individual. Again, according to his previous responsum, only in this case is death categorically present – regardless, for example, of whether this individual could be saved and regardless of whether other signs of somatic life can be found. The status of this trauma victim seems hermeneutically questionable because R. Feinstein did not clearly classify him as an actual case of decapitation – but only virtually so. If, then, his heart is still beating – is cardiac activity considered a sign of life which ‘trumps’ his loss of respiratory capability such that he is still alive? This would be his conclusion according to Egrot Moshe YD II 146. Or, does virtual decapitation render him dead regardless of any other signs of life? If this was the case, then, this responsum could logically be understood as allowing for organ transplants from these comatose patients whose hearts were fully functioning. This would render his earlier extremely strong objections to heart transplants moot. Those who argued that R. Feinstein had decided in favor of heart transplants contended that this was the proper interpretation of his 1976 psaq.

Many, however, questioned whether he would he have changed course so drastically without making an explicit statement as to this fact.[21] His silence on this matter served to fuel doubts about his true intentions. (Additionally, he would reiterate his objections to heart transplants two years later in a succinct responsum to the Israeli Knesset Member Kalman Kahana.)[22]

In attempting to reach clear conclusions about R. Feinstein’s actual intent concerning transplants, attention has been focused on three different aspects of the responsum: its historical context, its understanding by those closest to him and its own the internal logic. Regarding the last point, aside from what I have explained above, R. Mordechai Halperin claimed that if one were to assume that the angiogram (arteriograph) was to be performed as an additional confirmatory test on trauma victims this would mean that until brain death could be established:

 … it is forbidden to interrupt the resuscitory apparatus and full treatment must be given…. It is clear that this conclusion is opposed to world-wide standards, we have never heard of an obligation to check cerebral blood flow in all those who have died from traffic accidents….[23]

While R. Halperin felt that the implications of the psaq understood a certain way were troubling, I am not sure why this is the case. It may very well be that R. Feinstein wished to include a procedure that was not part of regular medicine.[24] Additionally, it seems quite reasonable to wait for an indication that possibly temporary nerve damage has become permanent before endangering a patient by depriving him of oxygen at a critical stage of his injury. Apea testing at this point could in fact become the cause of death and not just a test![25]

This responsum was written against a background of medical-ethical questions concerning the withdrawal of treatment for the comatose. In 1976 a New York State bill concerning death criteria was under consideration. (R. Feinstein was a New York City resident and R. Tendler resided in Monsey, New York where he served as a community rabbi). The bill included an allowance for brain-death criteria to be used to pronounce death for resuscitated patients. (It is no coincidence that the New York State Assembly was debating this while the celebrated case of Karen Ann Quinlan was being pleaded before the Supreme Court of neighboring New Jersey.)[26] In fact, three weeks after penning his responsum, R. Feinstein wrote a letter to New York Assemblyman Hebert Miller, chairman of the Assembly Committee on Health, detailing his opposition to the bill.[27] In this letter he makes no mention of the exceptional cases of trauma or poison victims, nor of any brain-death criteria. Instead, he only writes that support for respiration cannot be actively withdrawn even from the clinically dead, but only withheld as he spelled out in his psaq.

In a patient presenting the clinical picture of death, i. e., no signs of life such as movement or response to stimuli, the total cessation of independent respiration, is an absolute proof that death had occurred. …

If such a ‘clinically dead’ patient is on a respirator it is forbidden to interrupt the respirator. However, when the respirator requires servicing, the services may be withheld while the patient is carefully and continuously monitored to detect any signs of independent breathing no matter how feeble. If such breathing motions do not occur, it is a certainty that he is dead.

In the event that these specific requirements will not be incorporated in your bill, I strongly endorse and support the ‘religious exemption’ clause in the Governor’s program Bill, a concept which is in keeping with religious rights and social ethics.[28]

For those who opposed the ‘pro-transplant’ reading of R. Feinstein’s responsum, the lack of any mention of brain-death determination in his letter has been taken as proof that his intent in his psaq was to delineate the steps needed before withholding care and not offer another track, as it were, for establishing death. If R. Feinstein had himself accepted a brain-death determination as valid in some cases why did he not include this recommendation?[29] Thus, many claimed that it maked better sense to understand his suggested angiogram as a pre-condition to the actual apnea test outlined in his psaq.

However, if this is true, why did he not mention the use of the angiogram in his letter? It may be that his intent was to suggest that this was a stringency only incumbent upon Jews. As noted above (Egrot Moshe YD II: 174), R. Feinstein did in fact suggest that there may be a difference in the prohibition of hastening the onset of death between Jews and Gentiles. Jews are prohibited from such activities that may hasten the death of the dying, while it may be permissible for Gentiles to save a dying sufferer (even a Jew) from his agony by quickening his passing.  Keeping the same Jewish/Gentile differentiation in mind means that the use of the angiogram may have been a stringency only incumbent upon Jewish doctors, but that for New York State law, this extra step was not needed.

The family of R. Feinstein, including his son-in-law, R. Tendler, and his grand-daughter’s husband, R. Shabtai Rappaport, [30] claimed that their close personal contact with him uniquely positioned them to understand the true intent of his words.[31] They both argued that R. Feinstein accepted brain-death criteria as valid. R. Tendler has been the primary vocal proponent of this view.  Writing in JAMA in 1977 he argued that Jewish law was in full agreement with brain-death criteria of death.[32] He and his co-authors defined brain-death criteria as describing:

 …a condition in which the brain is completely destroyed and in which cessation of function of all other organs is imminent and inevitable.[33]

While brain-death was understood as complete destruction of the brain, the authors did mention that this may not actually occur in all cases.[34] Throughout this article, though, brain-death was continually construed as actual, physical destruction of the brain.[35] It seems to be that this understanding allowed for R. Tendler to link R. Feinstein’s understanding of decapitation as death-by-definition with brain-death, which could be understood as virtual or physiological (if not physical) decapitation. Conversely, it appears that as R. Feinstein’s informant on medical and biological science, R. Tendler may very well have explained brain-death to R. Feinstein in terms of actual physical destruction: this was clearly the language used by R. Feinstein himself to describe the severing of any body-brain connection in his psaq. This point has led to one of the recurring criticisms of R. Tendler’s reading of this psaq: the question of whether only actual physical destruction of the brain was intended by R. Feinstein as equivilant to this virtual decapitation.[36] If so, perhaps without actual lyses of the brain, R. Feinstein would not have held that brain-death could be equated with decapitation. This holds regardless of whether this understanding would then allow organ retrieval or only the withdrawal of respiratory support.

R. Tendler has continually asserted that there is no discrepancy between his pro-transplant interpretation of this responsum and R. Feinstein’s registered opposition to heart transplants elsewhere. He claimed that the responsa in which such opposition was voiced all referred only to those potential donors who were capable of independent respiration.[37] As I detailed when describing Levi’s opposition to the same, however, it is questionable if non-resuscitated patients were ever really considered as potential heart donors. More problematic, though, is the fact that the first responsum (Egrot Moshe YD II 174) was written in reply to R. Weiss who directly addressed the problem of keeping patients resuscitated. In the third section of his responsum, R. Feinstein agreed with R. Weiss that the use of artificial respiration by transplant surgeons on potential donors only to keep organs viable for transplant was prohibited as it was not done for the donor’s benefit. The second responsum (Egrot Moshe YD II 146) clearly starts off by discussing patients who “can still breathe,” yet in the second section equally clearly moves on to discuss those who lacked the ability to breathe independently and were on resuscitation equipment. Here R. Feinstein concluded that the use of an ECG reading was valid evidence of life for a patient not breathing independently, but being resuscitated artificially.

It is true that R. Feinstein’s objection to heart transplants specifically in this second responsa (Egrot Moshe YD II 146) devolved upon the lack of the proceedure’s success. This is also the case in a later psaq from 1978.[38] While this means that his opposition to heart transplants may not be solely dependent upon questions concerning unethical harvesting of the donor heart, I cannot understand how anyone can explain that his position concerning resuscitated patients did not change if they read the responsa under consideration (YD III 132) as R. Tendler did. That is, as allowing for organ removal after brain-death. The question, then, remains – did R. Feinstein reconsider his earlier opinion and in this responsum accept brain-death criteria as sufficient for declaring death? This is a point which has been much debated both by those who were in personal contact with R. Feinstein[39] and other halakhic scholars.

However, R. Tendler has also produced other evidence that irregardless of previous positions taken by R. Feinstein, in the end his father-in-law did permit heart transplants. This evidence was in the form of a previously unknown responsum that was written to a Dr. Bundy in 1984, but only discovered by the Tendler family in 1992 (the story behind this letter and its contents were published in Assia 53-54 [VI 4:1-2] Elul 5754:24-25). The responsum was written regarding a New York State Supreme Court case wherein the Court had accepted brain-death criteria as a legal definition of death.

R. Feinstein wrote:

Practically: I have heard from my son-in-law, R. Tendler, that the Court only accepted the definition which is also correct according to the halakhah, the definition called, ‘Harvard Criteria’ which are equivalent to ‘decapitation’ (Heaven forbid) of the patient in that the brain is already (Heaven forbid) actually dissolved [The Hebrew here reads נעכל* which literally means digested].

Now, even though the heart can still pump for a few days, in any case all the time that the patient has no independent respiratory capacity, he is considered as dead (as I explained in my responsum YD III 132).

The rest of the responsum is devoted to the question of whether a Jewish doctor who is ordered to remove a patient from life support before the brain-death criteria are fulfilled can do so. He suggested that for a gentile patient this may be permissible, but concluded that for a Jewish patient this is certainly forbidden.

R. Tendler felt that with the publication of this letter the entire question of how to interpret the position of his father-in-law would be put to rest.[40] It was clear to him that his interpretation was unassailable.

Others, however, disagreed. Some noted that the letter only concerned the withdrawal of the resuscitation apparatus and did not contain permission to actually remove organs from a brain-dead patient.

R. Shlomo Zalman Auerbach, for example, wrote:

However, in my humble opinion, even though [R. Feinstein] wrote, “it is correct according to the halakhah” and “even though the heart can still pump for a few days,” it may be that these expressions only concern his intention to decide that, “it is permitted to remove the patient from the respiratory apparatus.” The time that this letter was written was in Kislev 5745 [winter 1984] when the entire Torah world was debating whether these transplants were permitted or prohibited. If his opinion was that the patient was considered actually dead also regarding the matter of organ removal, it is odd that he did not mention that it is a commandment to take organs from this patient in order to save the lives of the critically ill. … I therefore believe that he did not want to rely on these tests in order to allow for the active removal of organs.[41]

 

Despite the best efforts at pushing a ‘pro-transplant’ interpretation of R. Feinstein’s position by many, upon weighing all of the evidence, textual and historical, it is difficult to claim that R. Feinstein’s intention in writing his psaq was, in fact, to offer halakhic permission for organ transplantation. The meaning of his psaq remains, at best, equivocal. However, this ambiguity was ignored by those who promoted its use as the cornerstone of the Rabbinate’s decision to endorse heart transplantation. As I will discuss in Section II, the equating of brain-death with decapitation, which could then be understood as a by-definition state of death, promised to solve many of the halakhic and ethical problems that organ transplants presented. As noted in the beginning of this chapter, it was one of the main actors in the Israeli field of medical ethics, Professor A. Steinberg, who in the same year that R. Feinstein wrote his psaq, had enumerated these difficulties and rejected heart transplantation as an ethically and halakhically unsound practice, who would help to ensure that it was adopted by the Rabbinate. If in 1976 he viewed the still-beating heart of the resuscitated patient as a sign of life and technological medical advances as diagnostic tools with which to check traditional criteria of death, by 1986, he would understand that brain-death had replaced these criteria.

 



[1] Steinberg, “Qeviat Rega Hamavet,Noam 19 (5737): 210-38.

[2] Ibid., 214. His use of “advanced” here seems to imply that he understood that a number of different advanced stages of dying may reasonably be interpreted as a moment of death.

[3] Ibid., 215.

[4] He agreed with R. Goren’s suggestion that the inclusion of cardiac function in the classic triad of movement, respiration and pulse was novel. But he also argued that as this was included by every poseq who dealt with the determination of death, it had become an integral part of the halakhah (237).

[5] Ibid. He differentiated between the life of essential organs and the growth of hair and nails which he considered to be inconsequential.

[6] Ibid., 238.

[7] This is in contradistinction to R. Goren’s opinion discussed in chapter six.*

[8] Ibid. He did note that in ‘extreme cases,’ such as decapitation – there is no need to check for other vital signs before declaring death. This exception will come to play an important role in his change of opinion concerning brain death. Steinberg understood the need to wait in the absence of respiration as understood by R. Auerbach – as an unclear sign of either death or shock, needing time to be resolved. If technology allows us to more quickly decode this halakhic sign, no waiting period is required. This is different than the way in which R. Feinstein understood the waiting period—as the time in which anoxia certainly took place.

[9] EM YD III:132.

[10] R. Tendler would become one of the main voices pushing for halakhic acceptance of brain-death criteria. Taking a quite activist and often polemical position, he vigorously advanced his interpretation of this psaq. In some measure, it was his insistent reading of this psaq as tantamount to permission for organ transplants from the brain-dead, that allowed the Israeli Rabbinate and others committed to halakhah to accept neurological criteria for death. It was to him, in addition to the Israeli Rabbinate, that Hadassah turned to verify the halakhic position on the determination of death.

[11] EM YD III:132.

[12] The efficacy and ethics of such a test may be problematic.  Recently, serious problems with apnea testing have been observed with results which indicate that “the apnea test is not an innocuous procedure.” (Saposnik G, Rizzo G, Vega A, Sabbatiello R, Deluca JL., ‘Problems associated with the apnea test in the diagnosis of brain death.’ In Neurology India 52:3 [2004]: 342-5).

[13]EM YD III:132.

[14] Ibid.

[15] Ibid.

[16] This point is important as without it, one might confuse death with other states where no independent respiration is possible – patients with punctured lungs or polio, for example.

[17] *The original Hebrew readsראשו בכוח  כהותז. This last word means ‘in potential’ and is often used in opposition to ‘actual.’ Here ‘virtual’ captures its meaning more simply.

[18] This is the understanding of Avraham, Nishmat Avraham, 344.

[19] EM YD II:146—discussed in chapter five above.

[20] Ibid.

[21] See Nishmat Avraham, 339:2; Shor, “B’inyan Simane Mitah,” Hamaor 298 (Sivan-Tamuz 5747): 12-19, 12; and note 37 below.

[22] EM HM II 72.

[23] Mordechai Halperin, “Al Da’ato shel HGRM Feinstein,” Assia 47-48 (Kislev 5750): 6-13.

[24] This is also the response to this critique by Avraham, “Hashtalat Lev Beyisrael,” Assia 43-44 (1987): 83.

[25] See note 12 above.*

[26] Pernick argued that this case served as an impetus for establishing determination of death legislature throughout the United States in Martin Pernick, "Brain Death in Cultural Context," in The Definition of Death: Contemporary Controversies, 17.

[27] While this letter is written on his stationary and signed by R. Feinstein, it is not clear that he himself wrote the actual English text as his command of English was somewhat limited.

[28] Letter from R. Feinstein to NYS Assemblyman Miller (May 24, 1976).

[29] This is essentially the argument found in Chaim Dovid Zweible, “A Matter of Life and Death-Revisited,” The Jewish Observer (October 1991): 11-22, 21.

[30] See Halperin, “Al Da’ato shel HGRM Feinstein,” 11.

[31] See Shor, “B’inyan Simane Mitah.” The author details his personal communications with R. Feinstein’s son whom he claimed knew nothing about any change in his father’s opposition to heart transplants. Also see R. Tendler and F. Rosner, “Brain Death,” Tradition 28, no. 3 (Summer 1994). In this letter, R. Tendler attempted to marshal a number of different proofs for his own interpretation of R. Feinstein’s psaq and for the use of brain-death criteria in general. One of these is misreported; some seem suspect. His letter elicited vehement denials from Rabbis Auerbach and Waldenburg, two of the Israeli posqim named as seeming supporters of brain-death.

[32] F. J. Veith et al., "Brain Death. I. A Status Report of Medical and Ethical Considerations," JAMA 238, no. 15 (1977)

[33] Ibid., 1651.

[34] Ibid., 1652.

[35] The authors strayed from this straightforward understanding at times. In his article in JAMA, R. Tendler and his co-authors wrote that these criteria described a brain as “completely destroyed” or “a person whose brain is totally destroyed” (Veith et al., “Brain Death,” 1651). The very validity of these criteria “must be founded on the certainty that a person who meets [them]… has had actual complete destruction of the brain [my emphasis]” (1652). Oddly, though, they admitted that some studies showed that this is not the case.

In a larger series of autopsy studies, however, the exact nature and distribution of these fatal morphological lesions in the brain were also shown to be dependent on the etiology and on the interval between fulfillment of the Harvard criteria and pathological examination. [This] observation is consistent with the well-known finding in other organs that time must often elapse before morphological evidence of cellular destruction can be detected (1652).

They also wrote that lack of blood flow is “uniformly associated with subsequent necrosis and liquefaction of the brain” [my emphasis] (1652). It is unfathomable to me how one can reconcile the call for actual physical destruction with what is clearly the lack of such immediate physical change. Were Veith et al. themselves confused about normal English usage? Were terms that denote actual physical change – destruction – mistakenly used when what they meant was the cessation of function or of certain life processes? They wrote, “complete destruction of the brain, which includes loss of all integrative, regulatory and other functions of the brain.” Did they mean that destruction is equivalent to loss of function? Why use the word ‘destruction’ then? Or did they so want to accept the philosophical and practical advantages of declaring those with no brain function dead, that such confusion was an acceptable price?

[36] The language used by R. Feinstein – “rotted” and “dissolved” in his psaq (EM YD III:132) - clearly denotes the actual physical change of matter – not the loss of function and not future change. As his son-in-law was the clearly named source of his medical information, I can only wonder whether R. Tendler shared with him just his view that brain-death was actually equivalent to what is normally taken to be actual physical destruction. Or did he also mention that this was in fact true only if understood as he subsequently explained in the pages of JAMA: as something “associated with subsequent” destruction or that needed the philosophical buttressing of explanatory smokescreens such as consistency with time-lags in morphological changes?

Recently, an Israeli surgeon, Joshua Kunin, cogently argued that it is clear that R. Feinstein’s psaq, even if interpreted as expansively as possible, was predicated just upon the supposition that the loss of brain function measured by these criteria entailed actual physical destruction of the brain (Kunin, “Brain Death: Revisiting the Rabbinic Opinions in Light of Current Medical Knowledge,” Tradition 38, no. 4 [Winter 2004]: 48-62). He showed that most recent studies of the actual physical state of the brain show that this is not the case at all. He concluded that brain-death criteria in general have failed since they do not accurately reflect the actual destruction of the brain and complete severing of the brain from the body. Halakhically, then, he argued that one cannot compare brain-dead patients to the decapitated, as their brains are not actually destroyed nor completely disconnected from their bodies.

Now, while this critique is focused on the current validity of an earlier psaq (which is not our concern here), I have mentioned it because I think that it is also true historically. That is, one cannot deny that R. Feinstein wrote about brain-death criteria as describing actual physical destruction of the brain. In both YD III 132 and his later letter to Bundy (see below note 37*) he uses unequivocal language to describe the brain of the brain-dead as physically destroyed and not merely non-functional.

Perhaps aware of the practical consequences of his conclusions, the journal, Tradition, which published Kunin’s article, saw fit to simultaneously publish a rebuttal written by a New York professor of medicine, Edward Reichman. (Usually rebuttals against opinion’s expressed in articles only appear in subsequent letters-to-the editor. Ready inclusion of rebuttals is a rare occurance for this journal.) Reichman argued that even brain-dead patients with physically still-intact brains, have nonetheless lost their capacity for independent respiration. This being the case, it is as if the respiratory function of these brains has been completely severed from the body. As it is the respiratory capability that is essential in determining death for R. Feinstein, he argued that this functional severing is adequate to render a patient equivalent to an actually decapitated individual (Reichman, ‘Don’t Pull the Plug on Brain Death Just Yet,’ Tradition 38, no. 4 [Winter 2004]: 63-69).  I am not convinced by his argument; it seems to be primarily an apologetic for keeping faith with those devoted to brain-death. However, as this study is concerned with earlier history, I will not expand upon this point.

[37] R. Tendler, “Confusion: Brainstem, Death, Pikuach Nefesh and Halakhic Integrity,” The Jewish Observer (October 1991): 12-15, 13. 

[38] EM HM II 72.

[39] According to the phone logs of the past president of the Agudat Israel of America (a more religiously conservative Orthodox organization than the Rabbinical Conference of America of which R. Tendler was a prominent member), the answer to the above question is ‘no.’  R. Feinstein was a famous individual and famously available to hundreds of concerned Jews who turned to him for advice. He had personal contact with many outside of his own family. In a polemic published by Chaim Zweibel of Agudah, he recorded the following transcriptions of phone conversations held between Rabbis Moshe Sherer and Feinstein just after the responsum was written (“A Matter of Life and Death,” The Jewish Observer [June 1991]:11-14):

 

“Phoned R. Feinstein to ask for his meaning of the psaq re: ‘blood flow’ test of Rabbi Tendler. He said:

 

It is only a stringency, and only in case of an accident. I then asked: What is the ‘din’ [law] if an ordinary sick person on a respirator is breathing and has a heartbeat, but we don’t know whether he would continue breathing if the respirator is removed – can we trust the ‘blood flow’ test to determine death?

 

Rabbi Feinstein’s reply:

 

Explicitly not. I wrote clearly that with an ordinary sick person one is not permitted to stop the machine if he is breathing – and the test means nothing. It is only a stringency concerning accidents.

 

May 12, 9:30 A. M. – Rabbi Feinstein phoned … Rabbi Feinstein repeated explicitly what he had said yesterday, that the ‘blood flow’ test is only a ‘chumra’ [stringency] in accidents. To my question as to whether a ‘blood flow’ test has any significance when a patient is breathing only through a respirator, Rabbi Feinstein replied:

 

Certainly not, as I clearly wrote in the beginning of the psaq – and the test should not be performed altogether since the person is after all a gosses [in the throes of death] (page 22).”

 

If we are to believe this transcript, it appears that R. Feinstein very clearly intended that the angiogram only be used as an auxiliary test before testing for anoxia. He never intended that it itself be used as an independent test to ascertain the death of the brain and from this alone conclude that the patient himself was dead. According to this transcript, then, his position was not compatible with the pro-brain-death, pro-transplant stance that his son-in-law staked out through the use of his psaq. Rather, it seems clear that R. Tendler’s stance reflects only his own reasoning and not that of his esteemed father-in-law.

However, R. Tendler has been quite dismissive of those who raised doubts concerning the correctness of brain-death criteria either from a medical or halakhic point of view.  See his response to critics of brain-death criteria in JAMA 240, no. 2 (1978): 109 and 243, no. 18 (1980): 1808 where he caustically argued that only expertise in both science and Torah can lead one to truth. I have already mentioned that he is a firm believer in death as a unitary natural kind. He also holds a strong belief in scientific realism accompanied by halakhic-legal naturalism. For example, discussing the natural and halakhic worlds he wrote:

“Torah and science share axioms that stamp them both with the Seal of God, the seal of truth. The first of these axioms is the all-encompassing truth that there is order in nature. …The second axiom that science and Torah share is that the human mind can perceive the order in nature. Faith in a God who is rational and omniscient led to faith in reason. … There is never a conflict between science and Torah. If there is the appearance of conflict, it is only due to one of three factors: ignorance of Torah principle; ignorance of scientific facts; or most commonly, ignorance of both,” (Moshe David  Tendler, "Torah and Science : Constructs and Methodology," Torah u-Madda Journal 5 [1994]: 170-1).

 Interestingly, it appears that his esteemed father-in-law took a different approach to the legal naturalism of the halakhah. In his introduction to his collection of responsa, Egrot Moshe, he wrote:

“... regarding the actual halakhah (literally true teaching in the Hebrew) it has already been stated 'it is not in heaven,' rather it is in accordance with what the decisor (hakham in the Hebrew) understands after adequately delving into the matter through the Talmud and accompanying literature according to his ability, with all due seriousness and fear of the Lord. It is this decision that he is obligated to expound – even if it does not accord with the actual objective Truth. Of this it is said that his [mistaken] words are also 'words of the living G-d' for he is convinced of their truth and does not find any inconsistency in them. ...”

Commenting on the famous tale of Moses' viewing G-d affixing crowns to the letters of the Torah (b. Menuchot 29) he continued:

It is as if G-d made the letters of the Torah into kings [‘crowning’ them with a level of independence] so that a poseq can look into them and according to his own understanding of these letters render a decision ... even if this understanding was not the intention of G-d [the author]....

Here we can see more of a legal positivism than the strong naturalism propounded by R. Tendler.

[40] R. Tendler “Od Al Da’at HGRM Feinstein,Assia 51-52 (Iyar 5762): 187-188.

[41] His own opinion at this time, in 1993, was that only outside of Israel where the large majority of doctors and donors were gentiles, was a Jew permitted to receive a ‘cadaver’ transplant. See Minhat Shlomo Tnina, 86.