Introduction

 

“Historically, we have assumed that the death of any living thing is a fact we discover, and not a status we confer.”[1]

 

Death, in an age of ever increasingly complex medical intervention, has remained an enigma.With each turn of the biotechnology wheel it has becoming even more curiously opaque. As the technical possibilities of resuscitation and the transplantation of live organs from dead bodies have become commonplace throughout the West, the complicated ways of understanding the end of life – biologically, socially, religiously and legally – have become themselves all the more so complex. Since the mid-1960s,                                                                                                                                            ethical problems associated with the removal of living organs from patients-cum-donors have been debated by doctors and lawyers, religious and secular ethics scholars. Already at the dawn of the transplant era, international conferences addressed the questions surrounding the need to declare such patients dead before removing their organs.[2] Early on in the transplant project, new neurologically-based criteria for death were devised in order to allow for resuscitated comatose patients to be declared dead and their organs harvested for use in the living.[3]

While the transplantation of organs like eyes and kidneys raised a number of ethical problems, it was the transplantation of the heart itself (in 1967) which focused the most attention on the problematics of declaring death for these comatose patients. The removal of a still-beating heart from a neurologically ‘dead’ patient presented doctors devoted to organ transplantation with an ethical problem of a different magnitude. How could a living heart be harvested when for so long continued cardiac function was emblematic of continued life—even in dying patients? Was the removal of the heart the sacrifice of one life in an attempt to save another?

 The introduction of a new criterion for establishing death was meant to solve these ethical problems. ‘Brain-death,’ variously understood as actual necrosis of some (or all) of the brain or the loss of some (or all) brain-function, became an integral part of the organ transplantation project. Brain-death enabled doctors to ethically remove organs from the comatose by labeling these patients “dead,” despite the presence of viable organs and other signs of life in their bodies. Brain-death became a new way of conceptualizing death—as the loss of cerebral neurological activity and not as the necrosis of other vital organs or loss of cardio-pulmonary function. In the end its adoption presented doctors with dead patients in living bodies.

Philosophically, questions arose as to whether this new criterion was a scientific refinement of obsolete older criteria for determining death or just a ‘convenient’ redefinition of death meant to serve the transplant project.[4] The tension over the meaning of brain-death opened debate over the meaning of death itself. Was death a biological state, a philosophic concept, a social category or perhaps a synthesis of all three?

            The debate over brain-death in the West has played out in any number of philosophical, medical, legal and religious works, and has even generated second-tier works devoted to examining the history of the struggles over redefining death.[5] This study is devoted to describing the brain-death debate in Israeli society over a critical twenty-year period: from the beginning of the Western heart-transplant project in 1967 until the establishment of the first Israeli heart-transplant unit in 1987. One of the factors that made the Israeli discourse on the ethics of brain-death and the meaning of death itself unique was (and still is) the role that Jewish law (halakhah) played. Not only did doctors, lawyers, and legislators contribute to the debates surrounding the new neurological death, but rabbis and halakhic scholars voiced a variety of halakhic opinions on the medical-ethical-religious difficulties which arose out of the need to re-examine death in light of heart transplantation. These halakhic opinions offered diverse views of the ethics of transplantation, the interplay of science and religion and the understanding of death through the lens of Jewish law.

The voice of the halakhah was, in fact, so important that on the eve of initiating the first Israeli heart-transplant program in Jerusalem’s Hadassah Medical Center, both the Center’s director-general, Professor Shmuel Pinchas, and the director-general of the Israeli Health Ministry, Professor Dan Michaeli, turned to the Israeli Chief Rabbinate seeking halakhic affirmation that brain-death was a Jewishly acceptable method for determining the death of potential heart donors. In years previous, the relationship between the Israeli secular-scientific elite and the rabbinic community had been stormily tense.[6] The fact that those involved in the translant project turned to the Rabbinate was more than the offer of an olive branch. It represented a unique opportunity to mend fences and join forces in a cutting edge mission to save lives. It quickly became, though, an opportunity lost. The promise of medical-rabbinic cooperation was quashed when the qualified halakhic permission granted by the Chief Rabbinate to undertake heart transplants was taken by the Health Ministry and Hadassah as carte blanche halakhic acceptance of brain-death. Pinchas and Michaeli used this as an opportunity for the heart-transplant project to commence as they saw fit.

The Chief Rabbinate’s halakhic decision (psaq halakhah) serves as a focal point for this study. In the book’s second section it is thickly described and analyzed. Yet in order to fully understand this psaq and its significance, it is important to examine the Israeli discourse over brain-death which preceded it. This discourse was comprised of the opinions of doctors, legislators, lawyers, judges, academics and rabbis who responded to the challenges, both practical and conceptual, that brain-death presented. Over a period of twenty years these opinions were expressed ‘in real-time’ as part of parliamentary debates over transplants; in articles published in professional journals; as part of academic research; in pisqei halakhah and halakhic analysis. All of this crucial backstory is the subject of the book’s first section.

The brain-death discourse in Israel over this initial period was marked by great conceptual variety. In debating the ethical challenges presented by organ transplants and brain-dead organ donors, the very meaning of death and its implications were understood quite differently by many of its participants. For some, death meant biological fact; for others, it was a medically informed estimate regarding the possibility for the recovery of biological function; yet others saw death—exposed as it was under the lens of live organ harvesting—as a social or religious construct. Lying beneath this conceptual mosaic of opinion were also statements about the boundaries between public policy, law, philosophy and medical practice, the place of ethics in science, and the role of Jewish law in Israel’s public sphere.

Each of the diverse documents I discuss and analyze reveals its author’s often unique understanding of one or more of these issues; each is connected to understanding the meaning and role of brain-death in modern medical practice; each sought to solve the ethical problems that its author envisioned as stemming from this new death. In Israeli Medical Association (IMA) symposia we find discussions of the legal and halakhic implications of organ transplantation. Their participants presented opposing viewpoints on the ethics of human experimentation and medical progress. Doctors discussed these same issues in testimony before Knesset (the Israeli parliment) committees as well. Knesset plenum protocols offer an opportunity to see how government officials defended the earliest Israeli heart transplant as ethically sound while misinterpreting the very ethical basis for this claim. In published articles and halakhic responsa, medical practitioners and rabbis presented alternative (and at times competing) conceptualizations of the comatose dying patient. For some, he was a donor-in-waiting—a patient whose ethical mass diminished as he moved closer to final death. For others, this liminal patient continued to exert a consistent moral pull on his care-givers. His unsettled state called for ethical resolution with only him, the immediate patient, in mind. This patient was to be treated as an end in himself—either through healing him or letting him die.

In the rabbinic literature we find diverse understandings of the very same traditional halakhic criteria for the determination of death. The role of respiration—the seeming universally accepted sign of death for the halakhah—was alternatively understood as only one part of total somatic collapse; as a once clear sign which modern resuscitative technologies rendered doubtful; or as harbinger of modern neurological death. The ways in which these rabbinic scholars conceptualized traditional halakhic sources influenced the ways in which they related to the modern medical project of heart transplantation and its accompanying new ‘definition’ of death. There were those who endorsed heart transplants as halakhically sound life-saving procedures and those who condemned them as little more than medical murder (!).

This multi-voiced discourse, then, was hardly harmonious. Ideas central to the debate over organ transplants (such as the status of dying patients) were so variously conceptualized that despite numerous efforts at dialogue in IMA-sponsored symposia and other venues, little actually took place. The slippery conceptual fluidity surrounding the idea of ‘death’ in an age of ‘living cadavers’ or ‘neurologically empty’ yet living bodies made it difficult for the participants in this discourse to effectively share their ideas.[7] The Israeli brain-death discourse from this period, in its multifaceted discord, accurately reflected conceptual disarray.  Brain-death uprooted accepted understandings of death and of the medical-ethical status of the comatose patient. As Margaret Lock has argued, brain-death created a new, confusing type of patient, one who crossed until-then normal biological-cultural borders.

 

The brain-dead patient-cadaver is a particularly complex hybrid, constituted from culture and nature while in transition from life to death; both person and nonperson, entirely dependent on a machine for existence.[8]

 

It should come as no surprise, then, that the reactions of those who dealt with this new medical reality were themselves complex and, even, at times, confused. As medical practitioners, lawyers, rabbis and academics became more familiar with this ‘complex hybrid’ they offered different interpretations and conceptualizations of him as patient qua ethical subject—at times directly, at times by discussing the meaning and definition of ‘death’ itself. It was the hybrid nature of the subject which allowed those who concerned themselves with brain-death—whether as politicians, lawyers, judges, doctors, rabbis or academics—to offer such varying and competing approaches to, and conceptions of, these patient cadavers. As a result of these conceptual differences (sometimes along with prejudicial attitudes) the discourse over this long period was often disjointed, with little real communication among many of its participants.

Taken together, these varied contributions constitute the totality of the Israeli discourse on brain-death for this period. All of the documents presented in the first section detail some aspect of the cacophonous, discordant discourse surrounding brain-death in Israel since its introduction into Western medical practice, yet before it became a medical-ethical necessity here. Only the establishment (long awaited by some, much feared by others) of an Israeli heart transplant unit would bring brain-death into focus as actual death. To remove a beating heart for transplant without first declaring the donor dead—really dead—would be a moral impossibility.

The push for establishing this medical program helped to silence all the noisy, multifaceted, multivoiced discourse into something seemingly much more monolithic. With the success of the second stage of heart transplantation in the United States and England (afforded primarily by advances in overcoming the ‘rejection’ of donor organs),[9] the mid-1980s saw brain-death become part of normative medical practice in these countries.[10] Understanding donor death as brain-death was a vital part of the transplant project, so those who sought to move forward with transplants needed to consolidate the public acceptance of brain-death (for it was only the general public who could provide donor organs).[11] The later documents discussed in the first part of this study attest to the fact that doctors, judges and public servants were well aware that this was the case and were searching for ways to make this happen. Rather than focus on the diversity of opinion and rich philosophical range of views which had been expressed by those who supported brain-death, it seems that its practical adoption by others in the West was seen as enough to warrant its medical use in Israel as well.

However, some felt that the ‘last hurdle’ left to gaining public support for brain-death and the organ transplant project lay in gaining rabbinic support for each. This was the basic rationale behind the appeal to the Chief Rabbinate. The respective queries of the Health Ministry and Hadassah Medical Center along with the Rabbinate’s response are analyzed in the book’s second section. Despite the efforts made at reaching a medical-halakhic consensus, none was in fact attained. Instead of fostering cooperation and aiding the quest for organ donation, the handling of the Rabbinate’s decision by the Health Ministry and Hadassah resulted in mutual frustration and suspicion. In the end the Rabbinate would even rescind their qualified halakhic permission accepting brain-death and allowing for heart transplants in Israel. The analysis of the decision, including its history, content and repercussions, helps to explain why this occurred.

Aside from certain incidents which fostered mistrust between the medical staff and the Chief Rabbinate, the responsibility for their ‘missing of the minds’ lay in the polysemic nature of death itself which kept bobbing to the surface despite efforts to ignore it. The fundamentaly confusing hybrid nature of the patient-corpse-donor allowed each side to conceptualize death itself quite differently and prevented them from reaching agreement on how to move forward together with the heart-transplant project. As I will explain, the Rabbinate viewed death as a halakhic status, while Hadassah’s medical staff understood it (at least superficially) as a biological state.[12]

The conceptual confusion surrounding death did not simply disappear even as the use of brain-death criteria became an accepted medical practice. The essential tension between those who held death to be a biological state and those who claimed it was a cultural/legal/religious status was never undone. The confusing liminal hybrids born of the need for living organs and dead donors had helped to expose the uncertainty of death’s meaning in modern medical practice. A simple dismissal of this conceptual uncertainty was impossible–in the end it would out.

This study is devoted to detailing the very complexity of death in the modern world as manifested in the Israeli discourse over brain-death. By focusing both longitudinally on a public discourse that lasted twenty years, as well as examining in depth one specific event—the Chief Rabbinate’s psaq on heart-transplants—I show just how important conceptualizations of seemingly solid ‘facts’ can be. Brain-death presented medical practitioners and ethicists with complex and confusing puzzles which required them to rethink their seemingly settled concepts of biology, culture, and science—along with the relationships between them.

Because Hadassah’s medical team and the Health Ministry endeavored to medicalize death by presenting it as a biological fact, in the end they failed to gain full rabbinic support for heart transplants. They wanted to suppress the conceptual problems that brain-death raised. The Rabbinate itself failed to properly articulate its own conceptions of death and mistakenly assumed that they could work together with Hadassah’s medical staff without doing so. By attempting to co-opt a stance that privileged a biological understanding of death, the Rabbinate effectively made their own halakhic concerns redundant in the eyes of those who sought to ensure complete medicalization of death. The Rabbinate’s religious concerns may have depended upon biological categories and facts, but were far from identical with them. The end result of this conceptual mis-match tempered the success of the transplant project by robbing it of much needed cross-cultural support.

 While the transplant project has indeed marched on in Israel as it has in other Western countries, this in itself has not served to lessen confusion over the meanings of death. Competing conceptualizations of death seem to have impacted the degree of donor willingness to contribute organs for life-saving transplants. Without addressing the conceptual difficulties surrounding death, I believe that this situation will not improve. The question of what it means, in our technologically advanced age, to be really dead is still worthy of consideration. Once one of life’s only two certainties, death has made a comeback. It is again something of the mystery it once was. This historical study affords a view of how this happened in Israel.

 

 



[1] Ben Rich, Strange Bedfellows: How Medical Jurisprudence Has Influenced Medical Ethics and Medical Practice (New York: Kluwer Academic 2001), 119.

[2] See G. E. W.  and Maeve O’Connor Wolstenholme, ed., Ethics in Medical Progress: With Special Attention to Transplantation 1966 (Ciba Foundation Symposium) (Boston: Little, Brown and Company, 1966); V. Fattorusso, ed., Heart Transplantation (Liege, Belgium: Desoer Publishers, 1968).

[3] The most famous and influential of these were those which came to be known as the ‘Harvard criteria’. They were published by The Ad-Hoc Committee of the Harvard Medical School to Examine the Definition of Death Ad-Hoc, "A Definition of Irreversible Coma," JAMA 205, no. 6 (1968). See Belkin, "Death before Dying " (PhD. Thesis, Harvard University, 2000)  for an in-depth historical study of their development and use. Belkin’s article, "Brain Death and the Historical Understanding of Bioethics," Journal of the History of Medicine 58 (2003), distills his thesis.

[4] Belkin argued that brain-death was part of a search for ethical care of patients, but Giacomini and others argued that the latter was the case. (Mita Giacomini, "A Change of Heart and a Change of Mind? Technology and the Redefinition of Death in 1968," Social Science and Medicine 44, no. 10 ([1997]).

[5] See the bibliography for many of the former. The latter include, among others, Margaret Lock, Twice Dead (Berkley: University of California Press, 2001), Belkin’s study and Giacomini’s article.

[6] This query came after years of tension between Israeli secularists and Jewish religious groups over the proper place of Jewish law in Israeli society in general and in medical practice in particular. The Israeli Medical Association and the Health Ministry on the one side and groups of concerned religious Jews and rabbis on the other had been struggling since the early days of the State over the proper post-mortem treatment of Jewish bodies—each  accusing the other of abandoning ethics in the pursuit of their own narrow interests. (This long confrontation even led to physical violence against doctors who at times required police protection to carry out what in their opinion were medically necessary autopsies.) See Section II, chapter 1 for a discussion of the reasons that these medical bodies appealed to the Rabbinate.

[7] Belkin used the phrase ‘neurologically empty bodies’ to describe the brain-dead (Belkin, "Death before Dying ", 146), and noted how the Harvard criteria themselves could not fully focus on one fixed meaning of death (142).

[8] Lock, Twice Dead, 40.

[9] See R.C. and J.P. Swazey Fox, Spare Parts (New York: Oxford University Press, 1992), 3.

[10] Despite this, the conceptual understanding of death was still not settled. See the often cited Stuart J. Youngner, C. Seth Landefeld, Claudia J. Coulton, M. Juknialis, and Mark Leary, "Brain Death and Organ Retrieval: A Cross-Sectional Survey of Knowledge and Concepts among Heath Professionals," JAMA 261, no. 15 (1989). Even more recently, the literature shows that the controversy over the meaning of death is far from settled. See Stuart J. Youngner, Robert M. Arnold and Renie Schapiro eds., The Definition of Death : Contemporary Controversies (Baltimore: Johns Hopkins University Press, 1999); Alexander Morgan Capron, "Brain Death--Well Settled yet Still Unresolved.," The New England Journal of Medicine 344, no. 16 (2001); Lock, Twice Dead ; D.A. Shewmon and Elisabeth Seitz Shewmon, "The Semiotics of Death and Its Medical Implications," in Brain Death and Disorders of Consciousness, eds. Calixto Machado and D. Alan Shewmon (New York: Kluwer Academic Publishers, 2004); Kunin, "Brain Death: Revisiting the Rabbinic Opinions in Light of Current Medical Knowledge," Tradition 38, no. 4 (2004); Winston Chiong, "Brain Death without Definitions," The Hastings Center Report 35, no. 6 (2005).

[11] Of course, other options were theoretically available – like removing organs from prisoners, actually suggested by the early, influential transplant surgeon Thomas Starzl (see Lock, Twice Dead, 92) and actually practiced in China. A 2001 NY Times article reported: “Executed prisoners are China's primary source of transplantable organs, though few of the condemned, if any, consent to having their organs removed, people involved with the process say. Some of the unwitting donors may even be innocent, having been executed as part of a surge of executions propelled by accelerated trials and confessions that sometimes were extracted through torture” (http://query.nytimes.com/gst/fullpage.html?sec=health&res=9500EED71538F932A25752C1A9679C8).

[12] The actual consequences of this conceptual disconnect are discussed in Section II.