HODS Rabbis & Physicians Seminar
Albert Einstein College of Medicine
[Part 5: 16 minutes 11 seconds]
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Question: If I understood properly, category 4 was cardiac arrest after brain stem death
Man: 3 and 5, there still could be brain stem activity
Rabbi: No no, all of these cases… oh yes yes absolutely 3 there is absolutely brain stem activity. There is a functioning brain, there is no brain, the patient is not brain dead in category 3. These are patients that have no brain death…and 5 no, 5 is somebody who has a complete cardiac arrest in the hospital, he is dead dead, no function
Man: I am just trying to figure out according to that letter that was shows before, according to the other פוסקים (halachic deciders) that do not accept brain stem death, they held it was רציחה (murder) that means they don’t hold from brain stem death, so therefore there’s no problem with this category. But it they said it was ספק (doubt) that we’re only in doubt, so that means that it’s a doubt it’s possible רציחה (murder) because maybe we go by the heart by the cardiac respiratory system. Then why would it be equal that it’s according to those פוסקים (halachic deciders) …
Rabbi: No, no, your question, let me clarify, excellent question…this, you’re talking about the step before the removal of the respirator, these categories, the common denominator here is all after the fact, these are all patients who are now cardiac dead, their brains, they’re not, there’s no heartbeat. And all פוסקים (halachic deciders) agree if there’s no heartbeat and there’s no brain function these people are dead. Now how you got to the cardiac death, you know if it’s a case of brain death which was the way you got to cardiac death so then you’ll have our discussion of whether it’s permitted to remove the respirator from a brain dead patient הכי נמי (this also). But the context here is that, this is the secular thing this is not halachic categories these are secular categories, that these are just the cases and the circumstances which end in the result of cardiac and brain death both.
Man: But when they take out the heart from the person that is in category three, at the moment that they’re taking out the heart is he brain stem dead or not?
Rabbi: At the moment they’re taking out the heart, he is dead לכל הדעות (according to all opinions), his heart is not beating.
Man: But is his brain stem….
Rabbi: Ah so you ask an interesting which is sort of a different angle.
Different man: 3 the heart’s not beating?
Rabbi: 3, when they harvest it he’s completely dead. Now they pull the respirator before that point which may not be halachically permissible… you are asking, you are asking, is brain death, does the brain continue to function after the heart dies, we’ve been discussing two days whether the heart continues to function after the brain dies, you’re asking if the brain continues to function after the heart dies. The answer is…
Man: Why is the patient dead?
Rabbi: Oh this, just to place in proper context, this is somebody who is dead dead no flow no circulation no heartbeat, nothing. This is somebody who has no pulse ever.
Man: No blood going through?
Rabbi: No blood going through anywhere, no blood to the brain, no blood to the liver, no blood to the hearts, nothing … yes?
New person: Can you explain, let’s say after the kidney let’s say is removed, what practically then happens? Does the surgeon, so to speak, reattach the heart to the body so that the body looks whole?
Rabbi: That’s a question that I’m simply unqualified to answer that question. But you raise an excellent point.
Man: It is ניבול המת (desecrating a dead person’s body)
Rabbi: You’re absolutely correct, if anything, if we were, you know, if any individual or פוסק (halachic decider) is involved in a case of any form of donation the recommendation is that ניבול המת (desecrating a corpse) be minimized to the maximal extent so don’t make a broad abdominal or flank incision and then leave it wide open and then bury the person that way. You would do it like you would do a surgery for the living. You’d take out the kidney, you would close the tissue, you’d close the layers, absolutely correct… yes?
New question: Rav Elchonon Zohn is the head of the chevra kadisha (group of people who prepare the body for burial) of Chicago and Queens… he said autopsies, you should see the bodies that come into there, there really is no respect for the כבוד המת (respect of the dead).
Rabbi: That is, yes.
Man: And the same would probably be true, I suspect
Everyone in the crowd: No
Rabbi: No. Autopsy… obviously in all these cases if פוסקים (halachic deciders) are involved in any case of donation there needs to be diligence to make sure there is the minimal amount of ניבול המת (desecrating a corpse) because if it’s left undiscussed there will undoubtedly be ניבול המת (desecrating a corpse). Yes?
Man: If seem like, as the various rabbanim have gone through the פוסקים (halachic deciders) on criteria for death, whether its brain death or cardiac death, and based on how you presented just now, that the understanding of the פוסקים (halachic deciders), especially the Chacham Tzvi and the פוסקים (halachic deciders) in the eras before and after, their understanding of that was not based on a halachic definition of death but rather the way that they understood science, medicine, and physiology at their, in their time. Whether, and in the same way, whether there was Rabbi Yehuda Hanasi take it from Galen and חז”ל (Chazal) in the gemara in Yoma, that was not a halachic or metaphysical understanding of death but rather a, how חז”ל (Chazal) defines it. That’s what it seems like to me. And I’m wondering what…
Rabbi: You raise an absolutely excellent and profound question which is really an undercurrent of many of the discussions in all the world of medical Halacha but clearly pervades at least as an undertone the discussion of the definition of death. So the real crux of the issue is, and is definition of death a matter of מָסוֹרָה (tradition) that the Halacha defines, הֲלָכָה לְמשֶׁה מִסִּינַי (Halacha given to Moshe on Sinai) that it’s cardiac death or respiratory death or is it something which requires the input of physicians in every generation obviously with the input of the פוסקים (halachic deciders) to see if it meets halachic criteria, to see if that definition can be altered revised or updated based on the contemporaneous science. And that is a question which should be asked directly to every פוסק (halachic decider) who paskins on the brain death issue and it’s quite possible that many פוסקים (halachic deciders) hold even the gemara in Yoma where it says כֹּל אֲשֶׁר נִשְׁמַת-רוּחַ חַיִּים בְּאַפָּיו (all in whose nostrils was the breath of the spirit of life) it mentions a פסוק (verse), it mentions a פסוק (verse), from the Torah, so does that mean it’s a דאורייתא(from the Torah) it’s a, or is that פסוק (verse), simply marshalled as a support but not meant to mean that it’s הֲלָכָה לְמשֶׁה מִסִּינַי (Halacha given to Moshe on Sinai) or rooted in our מָסוֹרָה (tradition). But an excellent question.
Robby: I’d like to ask you a question then we are actually going to end this seminar after this, we’ll just summarize it for about 10-15 minutes. My question is, you use the Chasam Sofer which went on to, as we saw Rabbi Flaum show, that in one, the case, the part that was read on the screen was that there were (unintelligible) both of cessation of heartbeat and cessation of respiration. But another place in the Chasam Sofer it says, all you need to do in terms if someone is dead is just a cessation of respiration and there are some people who claim in the other camp that the reason why that this is there, I mean if you hold by brain stem death is a cessation of respiration, then how, as Rabbi Flaum talked about, how do you accept this other statement that says requirement is cessation of heartbeat. And what they say is that because, as Dr. Reichman has just very well shown us, that the context of when this was written with the Duke of Mecklenburg that you had to, that the Jewish societies had to stop burying people immediately, that what he was saying was kind of a polemic, it was a response to them basically saying look even if you want to say that you’re not sure if a person is dead because this that, but if there’s no respiration and there’s no heartbeat and the person is lying… then the guy is definitely dead according to everyone, why would we have to wait to bury him? And that was kind of my understanding of it. I’m not really, I want to know because you’re very well versed in this, and you reading this, it’s one of the longest תשובות (answers/ responsa) of the Chasam Sofer, what was your impression of what’s written
Rabbi: Right. You know this is the challenge of using these pre-modern תשובות (answers/ responsa) to apply to a new context. The question you have to ask yourself is not what did the Chasam Sofer mean in his context; the question you have to ask yourself is what would the Chasam Sofer answer today if he was asked a brain death question? And it’s not always easy to answer that because the Chasam Sofer in writing his תשובה (answers/ responsa) clearly could not and did not anticipate that there would ever be a scenario where the heart would be beating and the brain would be dead. So there’s no way to definitively interpolate the Chasam Sofer into the modern society
Robby: Ok so let me rephrase my question… ok so forget about the brain stem death, how do you explain the eternal contradiction of the Chasam Sofer that in one place…
Rabbi: Because what’s this hava amina (the opening and ultimately rejected understanding) that the heart wouldn’t be dead? What’s the hava amina (the opening and ultimately rejected understanding)? He’s going to say that somebody’s dead if his heart’s beating, of course the heart stopped. If you’re in the 1700’s there’s no other scenario, nothing ever entered his mind otherwise.
Robby: Great, thank you very very much
Rabbi: I can hang around if there’s other questions. I don’t mind. I can hang around, it doesn’t have to be formal questions.
Robby: This is a great opportunity if you want to ask him more questions. Go ahead yes.
Woman: I just want to throw a question out there that I guess to you, Rabbi Flaum, anyone else who read this maybe you know…in terms of doing these kinds of donations, I mean you were assured yesterday, that when you do brain stem death donation and the organ is specified to a person it will not be wasted, it’s not banked, it’s not going to end up in research or anything. From this situation, you have a guy that comes into the ER and he’s coding and you know they call time of death in the ER, no one knows anything about him, you might not even know his blood type, but if you want to start harvesting those organs, you can’t wait, you’ve got to go immediately, and they can take out the kidney and the corneas and whatever, and what is the assurance then that those organs won’t be wasted since we don’t know if there’s a match for that? Or if he has HIV or any other limiting factor.
Rabbi: That’s an excellent question, and I’m not, again I don’t want to hazard a definitive answer because I simply don’t know the definitive answer, but if you’re harvesting at that stage you’re probably only going to be harvesting tissues and maybe kidneys, and the, and kidneys since you have probably 24-48 hours to find a recipient for the kidney for a successful donation the odds are extremely high that you will find a recipient and of the 96 thousand people that are awaiting organs, 80% of them are awaiting kidneys. So you have tens of thousands of people that could theoretically receive that kidney, the odds of that going to waste are vanishingly small.
Man: It’s actually about 2/3rds or 66 thousand.
Rabbi: Ok thank you for the correction.
Man: But the point in most medical centers, you might get offered that kidney to a recipient but most centers won’t even go as far as to offer it because they just don’t know its histology or genealogy anything about it so it’s not going to end up in a recipient, most likely.
Woman: This form of donation, I guess, the only real way you can assure that someone will actually get anything of yours is if you only die in the hospital and someone knows something.
Rabbi: Or if you come into the hospital and the family comes in by the side and say, you know my loved one wanted to serve as a donor, please donate his kidney, here’s his medical history and that’s the context. That’s the purpose not only in brain death issues but all end of life issues, that each, we should never know of such circumstances, but tragically we will all ultimately have these kinds of circumstances for ourselves or loved ones, the key is not to discuss them at 3 in the morning like I do, with a family who is completely unprepared for it, but rather to discuss it now when ברוך השם (thank G-d) everybody is healthy so that if the event does occur we’re all theoretically prepared for it.
Man: If there’s a problem once the surgery is done if one of the lives of one of the tissues and so on, what happens then do they throw that in the garbage?
Rabbi: Very good, and Rabbi Zohn who I can refer you to a wonderful talk that he gave just a few months ago on many of these issues that relate to end of life and the obligation of burial, the objective, the halachic requirement is just to bury all those tissues and blood and someone should gather them. I mean the tragic circumstance where were familiar with this is G-d forbid in these scenarios where ZAKA comes in with the terrorist acts, they’re literally, excuse me for being graphic, but they’re scraping the blood off the wall for it to be buried. So in this context where you can collect in receptacles
Man: But I want to know what happens in the hospital.
Rabbi: Oh I don’t know
Woman: I asked the question to the community representative yesterday, especially if the organ, you know they take the heart out and the guy dies before he gets there, what happens. They said you can take special requests, whatever the family wants. If you bring back the organ back they will do their damndest to bring back the tissue
Rabbi: The transplant community is so invested in donation they will accede to any request that you want.
Different woman: They do ask the family and the family themselves are the ones who make the arrangements.
Man: Is it possible that, in your opinion, in the foreseeable future to transplant pancreas
Rabbi: They are doing pancreatic transplants, it’s not as common but they are doing intestinal pancreatic transplants. It’s probably one of the lowest down on the list, but yes?
Man: My wife is a kidney pancreas transplant recipient, it’s very common. Pancreas was actually one of the first organs transplanted back in the mid-60s. The, as Robby pointed out earlier, the immunosuppressive were very very powerful then and wasn’t successful. And in fact David Sutherland down in Fairview is doing live transplant, live donor pancreatic transplants
Rabbi: That’s fascinating. That’s an exciting new frontier.
Man: Some of them, very very big concern about the onset of diabetes in in the donor so there’s some further work to be done
Rabbi: one of the frontiers which may resolve this, and obviate the need for transplantation is the frontier of stem cell research. So if you can cultivate stem cells that secrete insulin like the pancreatic cells then you’d basically, we’d be no need for a conference like this. GD willing there should be such a thing, not to eliminate the conferences but to eliminate the halachic issues so that everybody can be healthy. Yes?
Woman: How does Jewish law look at Jewish organ being donated to a non-Jewish body the person passes away, how do the burial procedures take place of that organ?
Rabbi: So there are two separate questions, one is the transplantation from the Jew to the non-Jew and the other is with whom is this specific organ buried. Now the issue of Jew to a non-Jew is admittedly a volatile issue from a halachic perspective. I’m not going to sugarcoat the law, there are פוסקים (halachic deciders) who say that perhaps it would be permitted to, prohibited to transplant for a Jew to a non-Jew. There are those who say it is absolutely permitted and it fulfills the obligation and it’s as much of a mitzvah to transplant to a Jew or non-Jew. There’s clearly a major debate about this issue, there’s definitely no consensus. One of the issues, and with respect to your second question with whom the organ is buried, the answer, well one possibility is you could put a little LoJack or GPS in every organ and then maybe you could bring it back to you. But in all honesty these are halachic, these are serious halachic discussions and the Halacha is that once an organ becomes transplanted into the individual it becomes reanimated and an integral part of that individual. So for example Rav Unterman held that when they asked him can a Cohen receive an organ because he’s receiving an organ from somebody who is dead, he’s not allowed to be in contact with a dead body, so he said very creatively, and he applied this to I believe corneal transplants, that once the organ is transplanted into the individual it’s no longer dead it becomes reanimated in the individual. And the organ, there’s no obligation to remove that heart from the recipient and transplant it in the burial plot of the donor.
Robby: Thanks very much.