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Rabbi Dr. Edward Reichman

HODS Rabbis & Physicians Seminar

Albert Einstein College of Medicine

[Part 3:  14 minutes  10 seconds]

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TRANSCRIPTION – Rabbi Dr. Edward Reichman: Part 3 of 5

Lecture: Non-Heart Beating Donation & History of Definition of Death Venue: The Rabbis & Physicians Seminar at Albert Einstein College of Medicine sponsored by the HOD Society in 2006

 So, so ends that brief chapter on the discussion of the Chacham Tzvi and the historical context of the Chacham Tzvi, now I would like to spend the next few minutes to share with you the historical context to this famous תשובה (responsa) of the Chasam Sofer. Chasam Sofer is quoted, and as you probably understood from these two days of discussions, one of the things which makes this particularly fascinating from a halachik perspective, is the fact that there are just a handful of sources, everybody is using the same sources to come to completely diametrically opposed conclusions. It’s just, I mean, it’s a remarkable, it’s just an extraordinary thing. I mean, and when you invoke the אלו ואלו דברי א-לוקים חיים you know they’re clearly still using the same sources, they’re both using the same halachik tools yet they’re coming to different conclusions. One of those handfuls of sources which people are discussing is the Chasam Sofer, which you may not realize, and I am not going to go into the halachik analysis of the text of the Chasam Sofer, that you may not realize what the historical context was that lead the Chasam Sofer to discuss the issue of death. There was no issue of brain death at that time; brain death is a construct of the 20th, the late 20th century. So what on earth was the Chasam Sofer talking about, what chapter of medical history lead to his discussion, which also lead, interestingly, to a very broad discussion in the halachik world, about the definition of death. So what lead to his discussion was this notion of the fear of premature burial, which hit Europe in the 18th 19th centuries, and I’ll explain presently what I am talking about. In 1740, a man by the name of Jacques-Bénigne Winslow wrote a book in the language of Latin, and the book was called Morte Incertae Signa “The Uncertainty of Death”. In that book he wrote, “Death is certain since it is inevitable but also uncertain since its diagnosis is sometimes fallible”. Now, had that book remained in Latin it would have been relegated to obscurity, and nothing would have changed in the world. But as happenstance would have it, there was a man who was a physician and a translator of medical works by the name of Jean-Jacques Bruhier and he took it upon himself, not only to translate this work but to go and cross the land and teach the contents of this work, to share with people the fact that the signs of death are indeed uncertain and it is quite possible that people are being misdiagnosed as dead. I just want to show you actually, not sure if I have it elsewhere, this is one of the illustrations of a coffin with the hand coming out of the coffin perpetuating the fear that people were buried alive. And this notion which was propagated by Bruhier, based on his translation which he took upon himself to share with the world, became so widespread that it instilled fear in millions and millions of people in Europe that they would be buried alive. And they perpetuated these stories, in literature there’s many stories, Edgar Allan Poe has a famous story of a premature burial, and there were stories in newspapers, stories in books, short stories and serial articles about opening up coffins and seeing scratch marks on the inside of the coffin, you know horrifying stories which would frighten anybody. And as was the practice, and what remains the practice today about capitalizing on people’s fears, likewise was the case back then. And here you have a united states patent in 1868 issued august 25 1868, the nature of this invention consists in placing on the lid of the coffin and directly over the face of the body laid therein, a square tube which extends from the coffin up, through and over the surface of the grave, said tube containing a ladder and a cord, one end of said cord being to a bell on the top of the square tube, so should a person be interred ere life is extinct he can, on recovery to consciousness, ascend from the grave and the coffin by the ladder, or if not able to ascend ring the bell. Hence the term, saved by the bell. It was actually a debate in history, whether saved by the bell originates from these premature burial coffins or whether it has the, from the boxing reference is indeed the real reference. And this is a similar one here, a mechanism whereby a set of pullies is hooked up to the toes, and to the fingers, and to the head, which is intricately hooked up to a bell on top of the grave, that if a person should wake up while in their coffin, move their fingers or toes or head, they would indeed be able to ring the bell, now if anyone is there listening to the bell, that’s another story. And they actually had שמירה (guard duty); they had שמירה (guard duty) for people to stay in the cemeteries to see if these bells were being rung or not being rung. And to give you an idea of how long this fear persisted, this is an article from the journal of the American Medical Association, you may have heard of it, from 1899 about the concern to prevent premature burials. Among the bills introduced before the New York state legislature is one that deals with the matter of premature burials. So this was a very prevalent fear, and for those of you who are interested in more extensive history of this, there’s a wonderful history by Jan Bondeson called “Buried Alive”, which has wonderful literature and wonderful pictures. Now some of you here may be familiar with the fact that in the 1700s, as a result of this literally worldwide spread fear that people would be buried alive, there were laws that were instituted in a number of countries, and one of them was by the Duke of Mecklenburg in Germany in 1772, who required all who were diagnosed as dead to be kept alive above ground for three days until putrefaction begins. So the only way people were confident that they were indeed dead was if gangrene set in, if they were starting to decompose then you knew for sure that they were dead. So if you can imagine, this presented a serious halachik problem because after all Halacha is כִּי קָבוֹר תִּקְבְּרֶנּוּ בַּיּוֹם הַהוּא you have the obligation to burry immediately, that day. So do we now say, does the Jewish community in Mecklenburg and surrounding communities that are bound by this law, now say that since the law is now instituted that burial should be delayed 3 days specifically because of concern that the person is still alive, should we delay burial and suspend the Halacha and the obligation of immediate burial or should we say that our law is burial, we have our specific criteria about how death are defined, we will not accede to the worries and concerns of the rest of the world about how these patients might be misdiagnosed as being dead. And that history lead to the תשובה (responsa) of the Chasam Sofer. And this discussion about whether burial should be done in 3 days, not 3 days, was probably, I can say relatively safely, as complicated and as long and as, involving all of the גדולים (big rabbis) of that generation as this brain death issue. It carried on for decades. Any of the major פוסקים (Halacha deciders) of that time all weighed in on this three day burial controversy in essence to determine whether death had occurred or not had occurred by the age old criteria that we have been using. So there it is, the context of Chasam Sofer, שלום לכל טוב etc. יקרתו הגיעני ונפשו היקרה בשאלתו נידון עיר א’ one cityשהרופא כהן it just so happened that there was a doctor who was a כהן (Cohen) ומנימוסי המדינה שאין המתים נקברים עד אחר שבדקו הרופא ומעיד עליו שנתיאש אחר נפלו אם מותר לכהן לכנס אפ’ ליגע לבדוק so the question was, they kept these people above ground for days and they had, they needed a certification of a physician to determine whether the patient was dead or alive, and that physician in this case happened to be a Kohen and that was the context. Now I don’t know if it came up in the discussion today, and please stop me if it did, that the question was posed to him by the Maharitz Chayos, this is one of the few cases where the Chasam Sofer does not mention who the question was from. He just says החרוץ המופלג etc. etc. אב”ד ור”מ דק”ק פלוני he doesn’t say who is asking, who the questioner was, it’s one of the few instances, I can’t say I’ve read all the תשובות (answers) of the Chasam Sofer to say how many others, but the reason is because he attacks him so, so, so virulently so that out of כבוד (respect) for the individual he left out, he omitted the name but the Maharitz Chayos actually printed this תשובה (answer) in his תשובה (responsa) and know that the Maharitz Chayos was the one who posed the question to him. This fear of death, of premature misdiagnosis of death, has actually been perpetuated not in the same intensity in our generation, in our age, but it is to some extent. And I apologize this doesn’t read so well, but I’ll read it to you. So for example, a Tel Aviv woman returns from the dead, Jerusalem Post august 30, 2001. Tel Aviv burial society members who are preparing the body for טהרה (purification) got the surprise of their lives, the body began to breathe. So you’ll periodically cases. This is in Vietnam in 2003, in 2003 again, 2004, 2005. Every year you have a handful of cases of people that were believed to be dead. So the question is, and this is a fear in the transplant community also, are these people who are diagnosed brain dead, is it is there a misdiagnosis of their death? Are they really not dead? Are they going to wake up and come back to me the way they were before?  And this is a genuine fear. But as far as we know based on the medicine now brain death, as we understand it, is 100% irreversible. And why you have these cases that I mentioned to you and cases in the Star and the Enquirer also as well, there has not been one case ever in the history of the medical literature since the inception of the diagnosis of brain death, of any individual regaining consciousness or recovery from the brain death state. So it is an inexorable pathway to cessation of life. Now the pathway can take a longer period of time, a shorter period of time that, I’m sure, was discussed yesterday. This is the concern about the misdiagnosis of death here, “bad news dad, you’re brain dead”. (Looking at the slide show pictures) This we don’t need. This I just put in because I couldn’t resist putting it in. (Laughter) Because you invariably discuss the physiological decapitation of death. So I think all פוסקים (Halacha deciders) would agree, in this case, based on the משנה in אהלות that this person was indeed dead. Actually, just not this, because I don’t know if you discussed the position of Rav Schechter, I’m sure you discussed the brain death position the non- brain death,


So just one minute just for the sake of completeness so you have one of our גדולי הפוסקים (big halachik deciders) positions represented here. Rav Schechter has said, and I apologize I don’t want to misrepresent it I’m going to state it very briefly. Rav Schechter has a different approach to the definition of death than other פוסקים (Halacha deciders), an entirely different approach. And his approach is based on the fact that  there were three, according to the gemara, there are 3 organs that receive, that are called איברים שהנשמה תלויה בהם (organs that the soul depends on) these are organs that have a soul, in a certain sense, connected with them. And just to make it very brief, he says that it is the circulation specifically which defines life. Circulation; not the heart pumping, not the brain functioning, circulation. But circulation not only to the heart, circulation to the three major organs; circulation to the liver to the heart and to the brain. And he entertains different scenarios, if circulation to one of them stops is the person considered dead? If all three of them stop etc. and has a lengthy analysis along that vein. Parenthetically, and Rav Schechter is aware of this as well, though I’m not sure if he knows the exact reference or specifics, but this notion which finds its expression in the Gemara of the ג’ איברים שהנשמה  תלויה בהםthe three organs which have souls connected with them, was not a uniquely Talmudic belief, it was also a belief common in antiquity. This is a chart of the physiology according to Galen. To give you an idea when Galen lived, he was a contemporary of Rav Yehuda Hanasi in the 2nd century of the Common Era. This isn’t a drawing from him, but it is a drawing about his works, where he shows the different spirits and the different souls, and there’s one in the brain and there’s one in the, a natural spirit in the liver and there’s one in the heart as well, and that’s the בהם ג’ איברים שהנשמה תלויה (3 organs that the soul depends on). And now for the last few minutes I’ll discuss the issue of the donation after cardiac death. So just in conclusion of that section I hope that this historical analysis has enlightened to some extent. Again my objective is to, is purely to present these so that people can hopefully understand the sources better. How people choose to use this, whether they use it in the פסק (halachik declaration) Halacha, that is purely in the realm of the פוסקים (halachik deciders), not at all in my realm.