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The article deals with the halachic and ethical implications of living wills and health-care proxies.  Both living wills and health-care proxies were created in order to allow some terminally-ill patients the opportunity to refuse certain kinds of medical treatments.  Depending on the state, one, the other, or both, may be available.  A living will gives a specific list of treatments that the patient does or does not want, while a health-care proxy gives broader guidelines as to the patient’s wishes and designates a specific person to make health care decisions.  The article addresses how religious ethicists have responded to these laws, and in particular the responses of the RCA and the Agudah.  The article summarizes some of the key issues in the halachic debate about brain-death as well. The article concludes by dealing with some of the halachic issues posed to doctors by advanced directive legislation.

This lengthy commentary on the section of Shulchan Aruch deals with Goseis (one whose death is immanent).  In it, he includes an extensive discussion on the issue of brain-death.  He expresses a great deal of skepticism as to whether brain-death should be considered a sufficient criterion to establish halachic death in a patient whose heart is still beating.  He also expresses skepticism in the ability of the current medical criterion to positively diagnose brain-death, and even if it could, he expresses a lack of trust in physicians to always carry out the required tests.He continues by summarizing the opinions of major poskim on the issue of brain-death.  He mentions Rabbi Tendler and the Chief Rabbinate’s ruling that one may transplant organs on the basis of the brain-death criteria, and Rabbis Eliashiv and Waldenberg who rejected it.  He discusses at length the opinion of Rabbi Shlomo Zalman Auerbach, disputing reports that he had changed his opinion and eventually come to accept brain-death.  With regard to the position of Rabbi Moshe Feinstein, while his earlier responsa are against organ transplants, his later responsa do seem to endorse the use of brain-death criteria.  However, the Nishmat Avraham notes that some of these responsa seem to be based on outdated medical knowledge, and suggests that in light of some recent findings, Rabbi Feinstein may have changed his mind and opposed the use of brain-death.  Ultimately, the Nishmat Avraham concludes that the consensus of most major poskim is not to rely on brain-death criteria halachically for organ transplants.

Rabbi Bleich argues forcefully against the acceptance of brain-death as a halachic criterion for death.  First, he argues, the definition of death is not, in itself, a medical question.  Doctors can describe with great precision the physiological phenomena they observe, but it is the job of the ethicist or theologian to determine whether the situation being described constitutes human life, whether the “soul has departed the body” yet or not.  Rabbi Bleich argues that not only halacha, but all traditional societies, have defined death as the cessation of all vital functions including heartbeat.  He address and (to his mind) refutes the Talmudic arguments that have been made in favor of accepting the brain-death criteria.

The author discusses the halachic status of a patient in a chronic vegetative state (deep coma) and what obligations would exist to artificially extend the life of the patient when there is no chance of recovery.  This discussion is not relevant to the discussion about brain-death because the comatose patient is not, by any measure, brain-dead. A second question the article looks at is whether this patient should be considered a goseis and the halachic ramifications of this designation.  The Talmud defines a goseis as someone whose death is inevitably in less than three days.  On the one hand, this patient can live considerably longer than three days.  On the other hand, without modern medical technology, they would certainly die in less than three days.  Rabbi Moshe Feinstein rules that they should be considered a goseis while some others disagree. 

Rav Yisraeli addresses the permissibility of donating skin from a dead body for burn victims.  The cases are usually life-threatening, so this would override the prohibition of deriving benefit from a dead body.  However, the Noda Biyehuda ruled that one may only violate a Torah prohibition to save a life if you have a specific patient in front of you whom you are saving.  However, in order to have sufficient skin, hospitals need to maintain a skin bank, so at the time they are collecting the skin from the dead body, there is no specific patient in mind.  Furthermore, once the skin is in the skin bank, there is a small chance that it will be used for purely cosmetic and not life-saving purposes.  Based on these considerations, we cannot permit skin donations on the basis of saving a life.  Rav Yisraeli goes on to argue that skin donations are, in fact, fundamentally permitted even if no life was being saved, so long as the deceased gave consent while they were still alive.Finally, Rav Yisraeli addresses the question of whether skin requires burial.  He demonstrates from various sources that biblically only an intact majority of a corpse requires burial.  There may be a rabbinic requirement but that too would be waived for medical needs.  Rav Yisraeli therefore concludes that one may indeed donate skin to a skin bank with the prior consent of the patient.