Brain Death in Israel

October 4, 2011

I. Israel and Organ Donation

According to the Israeli Chief Rabbinate, which famously ruled in favor of brain stem death criteria in 1986, most organ donations from a brain stem dead patient are contrary to Jewish law. This surprising position and the background that led to it are explored by Naftali Moses, PhD in his recent book, Really Dead?: The Israeli Brain-Death Controversy 1967-1986. With rabbinically approved organ donation in Israel once again in the news (link), this fascinating book, adapted from the author’s doctoral dissertation, offers timely guidance on how Israel got to where it is.

Israel’s organ donation rates are very low, among the lowest in the Western world, and have consistently remained at that level throughout the past two decades despite efforts to encourage donation. While Ultra-Orthodox conservatism may explain some of the phenomenon, it fails to shed light on the low participation of the majority of Israeli society. However, already in the 1960s, as organ transplantation from brain dead donors was beginning to develop, Israeli doctors recognized the uphill cultural battle they faced. Jewish death rites are among the most observed rituals. The extreme respect for the deceased, including quick and complete burial, permeates Jewish culture even among the otherwise non-observant majority. This ingrained cultural trend, more than any rabbinic ruling, causes the low donation rate. Recognizing this, doctors attempted to change Israeli culture, enlisting the Chief Rabbinate as the representative to the general public of Jewish tradition.

However, the Chief Rabbis saw their role differently. They did not want to be spokesmen but decision-makers. Moses demonstrates that leading Israeli doctors aggressively pushed the view that declaration of death is a purely medical/scientific matter. However, as Moses reviews the literature from 1967 through 1986, mainly in Israel but with highlights from abroad, he shows the complexity of the issue. Doctors debated whether death is a process or a moment in time, whether brain death defines death or indicates that death has already occurred or is inevitable, whether the entire brain must die or just the brain stem, and much more. Additionally, some medical ethicists argued that the moment of death is a purely social-cultural, rather than scientific, decision. Among the many scholars Moses quotes is philosopher Karen Gervais (who is pro-brain death definition), who says that biological death requires cellular necrosis of the entire body but we declare death earlier based on philosophical criteria of features that a person must possess to be considered alive.

II. Debate and Decision

Meanwhile, rabbis debated whether death is determined by the cessation of heartbeat or breathing. Brain stem death criteria fit the latter but not the former. Moses traces the initial rabbinic support for brain death criteria (by a single rabbi — R. Baruch Rabinowitz, the rabbi of Holon) to the growing opposition by leading halakhic decisors. While focusing mainly on Israeli voices, Moses also extensively analyzes R. Moshe Feinstein’s responsa due to his importance in the Israeli Chief Rabbinate’s deliberations. Moses examines the puzzling textual problems that arise if we accept his family’s explanations of R. Feinstein’s position and how others understood his view differently. Of particular significance is R. Avraham Steinberg, MD’s initial opposition to brain death criteria but later enthusiastic support when his concerns were met. R. Feinstein’s son-in-law, R. Moshe Tendler, and R. Steinberg were instrumental in the Chief Rabbinate’s eventual ruling.

In 1986, Hadassah Hospital and the Health Ministry petitioned the Chief Rabbinate for endorsement of a new “special transplant” program. After extensive consultation and deliberation, the Chief Rabbinate and a council of advisers ruled that irreversible cessation of breathing constitutes death and approved the brain stem death criteria, albeit with a number of provisos. The makeup of the Rabbinate’s council is itself interesting. R. Shaul Yisraeli, R. Zalman Nechemiah Goldberg and R. Yisrael Meir Lau were among the participants but R. Shlomo Zalman Auerbach refused to participate because of his (prescient) distrust of the medical establishment and R. Yitzchak Ya’akov Weiss declined for political reasons. It is, indeed, difficult to imagine R. Weiss, a leader of the anti-Zionist Edah Charedis, sitting on a Rabbinate council, although he was invited. Included among the Chief Rabbinate’s conditions is that another test be performed to guarantee brain stem death in addition to Hadassah’s protocol and that a representative of the Rabbinate be part of the independent team to declare brain stem death.

The response to the Chief Rabbinate’s ruling came fast and furious. R. Eliezer Waldenburg published an extensive responsum to the contrary on the same day that the Rabbinate issued its ruling. The next week, R. Shmuel Wozner also published an opposing responsum. Both responsa were widely publicized in the religious media. In a different vein, the secular newspaper Haaretz objected to doctors’ seeking approval from the Chief Rabbinate, what they called a “rabbi-ization” of Israel. Additionally, having won approval in principle from the Chief Rabbinate, Hadassah Hospital ignored the conditions and refused to implement the new test or allow a representative of the Rabbinate onto the brain death team. Because of this, the Rabbinate rescinded its permission and even criticized the hospital’s organ transplantation program when it began the next year.

III. Declaring Brain Stem Death

Over the years, the Chief Rabbinate approved specific cases of organ donation when families requested. In those instances, one of the Chief Rabbis personally asked a physician he trusted to confirm the potential donor’s status. This is where the book’s most disturbing information arises. In a footnote (p. 318 n. 48), the author relates what R. Mordechai Halperin, MD told him about the times when he was asked by a Chief Rabbi to confirm the status of potential donors who had already been declared brain dead by an independent medical team: “R. Halperin related to me that there were times when he agreed with the medical diagnosis of brain-death, but also times when he did not.” This was after the Israeli doctors had declared the patient brain dead and, absent the family’s inquiry of the Chief Rabbi, would have already harvested organs. As R. Halperin added upon further questioning, when he disagreed with the declaration of death the family did not allow organ donation.

Going back to the Rabbinate’s 1986 ruling, in response to the halakhic criticisms it received, R. Shaul Yisraeli and R. Mordechai Eliyahu published extensive defenses. Of significant note is R. Eliyahu’s position that immediately after brain stem death is declared, all life support must be immediately removed from the deceased patient. If I understand correctly, this greatly shortens the window of potential organ donation. Be that as it may, the absence of a rabbinic representative in the declaration of most brain dead patients, both in Israel and the Diaspora, renders organ donation in such cases contrary to the ruling of the Chief Rabbinate. However, a training program is beginning soon to enable more rabbis and religious doctors in Israel to perform that function (link).

Why was the Chief Rabbinate so insistent on representation in the declaration process? Moses attributes it partly to distrust of the medical establishment. However, he adds a more essential reason. Moses argues that the Israeli medical establishment saw brain death as a state, a medical fact. In contrast, the Rabbinate saw it as a status, a chalos that must be declared by witnesses who not only observe but participate in the declaration of status (eidus le-kiyum ha-davar). I find this explanation farfetched. A dead body will decompose regardless of whether anyone witnesses it. If brain stem death is considered death, then the declaration only formalizes the fact and does not establish it. I believe that Moses was correct in his first explanation; the Chief Rabbinate simply distrusted doctors, apparently with good reason.

Moses’ writing is accessible yet thorough beyond what can be discussed in this limited space. His presentation of the medical, ethical and rabbinic discussions is remarkably balanced and his history is authoritative. I only wish he would have continued beyond 1986 through today and reached further into the Diaspora. The complete book on Judaism and brain death has yet to be written but with this important contribution, Naftali Moses has drafted an important chapter in it.

(reviewed by Rabbi Gil Student Hihurim-Musings )

Death: Biological State or Halachic-Legal Status?


A Review of Really Dead?, by Naftali Moses, PhD

The determination of the moment of death is one of the most perplexing issues in modern medicine. Perhaps the primary reason for this is the fact that defining death is not only a medical issue. In fact, the debate over what constitutes “death,” and at what point (if any) organs can be taken from “deceased” donors, has included not only medical professionals, but lawyers, religious leaders, and politicians as well.

In the state of Israel, though, the discourse has been unique, in large part due to the inclusion of the views of Jewish law and the participation of the Israeli Rabbinate. In Really Dead?, Naftali Moses, who holds a PhD in medical history, explores the relationship between the secular-scientific and rabbinic groups in Israel over a twenty-year period (1967-1986). On that backdrop, he analyzes in great detail the events surrounding the Rabbinate’s issuance and withdrawal of support for heart transplants in Israel. This review will first briefly summarize the book’s structure. It will then focus on the author’s explanation of why there was discord between the Rabbinate and the medical professionals who sought their halachic approval to perform heart transplants in Israel.

In the first section of the book, Moses describes the responses to the first heart transplant performed in Israel in 1968. He thoroughly details the discourse among doctors, politicians, and rabbis. At the same time, the author explores the halachic literature on the subject of determining the moment of death according to Jewish law published subsequent to the transplant. The analysis includes Talmudic sources, responsa from leading halachic authorities of the time, and articles published by scholars of both medicine and Jewish law. Throughout the discussion, Dr. Moses quotes directly from many of the primary sources, responsa and articles, which allows the reader to experience the dialogue first-hand and participate in analyzing the issues.

In the second section, Moses discusses the efforts of the Israeli Health Ministry and Hadassah Medical Center in getting the Israeli Chief Rabbinate’s halachic approval to perform heart transplants. Once again, the author goes into detail regarding the historical events, and he carefully analyzes the language of the Rabbinate’s psak (decision) in light of the role of the Rabbinate in Israeli society, its relationship with those in the field of medicine, and the prevailing halachic and scientific opinions.

Dr. Moses is particularly concerned with the fact that the Rabbinate seemed determined to be actively involved in the declaration of an organ donor’s death.  He argues that besides for the Rabbinate’s mistrust of the medical establishment, there was a more fundamental reason why the religious leaders would not simply give their approbation. Essentially, Moses posits that in contrast to medicine’s understanding of death as a biological fact, the rabbis viewed biology only as a means of establishing “unequivocally the halakhic-legal status of the patient.” In other words, to the Rabbinate “[d]eath remained a halakhic category whose presence or absence may have been indicated by scientific tests, but which ultimately belonged to the parameters shaped by halakhic reasoning and not the world of scientifically-measured potentials” (emphasis in original).

The author develops his argument by citing examples from the Talmud and later authorities of the use of scientific evidence in halachic determinations. He refers to the decisions of contemporary poskim which have utilized scientific evidence, but have not accepted such evidence as absolute fact. As Dr. Moses explains, the halacha must be determined in accordance with legal principles, not only biological “facts.”

However, Moses then goes on to suggest that since, in the eyes of the Rabbinate, the question of the life and death of an organ donor is one of halachic status, “rabbinic witness to the change of status” was required. He argues that the concept of halut––the conceptual change in halachic status––demands that the change in status be observed and recorded by an expert in the pertinent areas of Jewish law. That is why, according to the author, the Rabbinate insisted on having a representative in the group that determines the patient’s death.

It is this last point of Dr. Moses’s argument that I find the hardest to accept. As Moses correctly observes, there are some areas of halacha––namely, those involving marriage and divorce––in which the witnessing of an event is necessary to effectuate a halut (change in status). However, in many other areas, a change in status takes place regardless of whether there are witnesses to an occurrence. For example, although the betrothal of a woman is invalid in the absence of witnesses, a financial transaction needs no witnesses in order to be effective. In fact, the requirement of witnessing to change a halachic status seems to be unique to the laws of marriage and divorce. Thus, the author’s assertion that the Rabbinate required a rabbinic witnessing of the organ donor’s death to cause a change in halachic status is highly questionable.

Nevertheless, Really Dead? provides a fascinating historical account of the debate regarding brain-death and heart transplants in Israel. Dr. Moses recounts interviews with people directly involved and closely examines the relevant halachic sources and scientific publications. This book is an indispensable resource in the study of halacha, modern science and Israeli society.

(reviewed by Evan Kusnitz, in Jewish Law)