Rabbi Tzvi Flaum
HODS Rabbis & Physicians Seminar
Albert Einstein College of Medicine
[Part 5: 10 minutes]
The chiddush (new idea) of Rav Tendler was, and this is what he wanted to explain to his father in law, and that’s what you have in your mar’eh mekomos over here, going back now to the second page, is a teshuva (answer) which was written to, Rav Moshe Feinstein wrote a letter, an answer, to the questions of Rav Moshe David Tendler, in which, and this is the first time we have in halachik literature a discussion of brain death being introduced as a halachik question. Whether or not in fact this is a halachik category you have to be concerned with and have to rely upon, nor the early teshuvas (answers) of Rav Moshe Feinstein even deal with the concept of death of a brain, he’s dealing with the question of the death based upon respiration based upon cardiac activity. It’s in this teshuva that brain dead became part of the vocabulary or part of the questions of Rav Moshe Feinstein’s activities, and as I read before when he comes to this paragraph where he is talking about a person who is an accident victim and he’s brought into the hospital with a collapsed lungs, and you’re putting the person on all different types of machinery to try to re-inflate the lungs and give the person to survive this trauma, and it seems no matter what you’re doing the person seems to be literally lifeless, and the question now is how do you know whether the person is alive or dead to declare the person totally dead. So at this juncture what you do is so he says I heard from my son is law, that there is one way in determining whether the head is still functionally connected to the body and that is by using what is called zerikas ezalukas baguf, by doing what is called a radio isotope blood sensitivity test testing whether or not the blood itself is able to indicated by radio isotopes containing it going from the bottom of the body up into the brain itself. Layda shenifsa hakesher sheyesh lemoach, whether the brain has totally been severed from its connection to the body or not, “im lo” and therefore what should you do? So he says, if you can show sheen lemoach shuv shayach la’guf that the brain no longer has any connection to the body, which means there’s no physiological connection when it comes to physical activity of the bottom of the body being regulated by the brain, ayn shayachat laguf vgam cvar nirkav bamoach legamre, and the brain is undergoing total necrosis, total destruction, if that the medical phenomena of the brain harei kupdas kerosh apiakoach it’s as if you’ve decapitated the person and the person therefore is declared dead. What Rav Moshe is saying is I‘ll accept what you call physiological decapitation. Why is it physiological? Because the head, when it comes to the connective tissue when it comes to the major arteries and veins they’re still in place, the only thing that is missing is that the control center of the brain, which controls much of what makes us a human being, has stopped functioning and is no longer controlling what’s going on in the body or the torso of the body, that major control center. If I can show on a biological level the physiological reaction and reality of this brain is as if you literally cut the brain off and it’s no longer there but to show you to have the same biological reality, therefore I’d be willing to call that brain dead and therefore give it my blessing of a person being dead. if you accept brain death what that means very simply on a pragmatic level is that once you show the brain is no longer functional and you say a physiological brain is like a decapitated brain at that juncture, you have an option of calling in the chevre kedisha to bury the person or you can call in a transplantee to take out organs of a dead person’s body and transplant it to those who might need those organs based on a psak (halachik ruling) which applies to everybody. Everybody when it comes to doing organ transplants in general I want you to know that there has to be a basis to doing organ transplants, for all types of organ transplants, whether they are brain death interpretation or respiratory cardiac interpretation, what is the basic source of the permissibility to do transplantation of organs from this person’s body to that person’s body, I have to give you a halachik source. We didn’t even discuss it this morning, we took it for granted, and since this is a donor organization we have to explain what the heck it’s based upon. Let me give you a very quick synopsis and I’ll go back to this inside. You have to hear this because without this you don’t even know how to act accordingly. There is a very famous responsum of the great Noda Beyehuda (responsa title), Rav Yechezkal Landau in the 1700’s in which he was asked a question whether the person died from a medical treatment, whether they were allowed to do a post mortem autopsy to see why the person died so they’ll make sure the next time they do this operation or take care of a person medically they won’t make any more mistakes in the future. So the question was posed, can you perform the issur (prohibition) of cutting up a dead person’s body which is an issur hatora (prohibition in the torah) called issur hanivla met, doing something to show disrespect to the physical body of the (person’s body) dead person’s body, can you be minavel hamet (desecrate a dead person) for the sake of a potential pikuach nefesh saving a person’s life in the future. That was the question that was posed to him. Is the issur (prohibition) of showing a disrespect for the body torso of a dead person allowed to be violated for the sake of saving human life? And what did Noda Beyehuda paskin (halachik rule) is if there’s a person who is immediately in front of you chul lifaneinu is able to be a beneficiary of this knowledge, you can therefore do the post mortem autopsy to do the medical research you have to do to therefore find out what the person died from to make sure other people who have the same problem, same medical care, same surgery shouldn’t undergo the same exact sof (end) and that is die because of maltreatment or because of performing the operation in an inappropriate fashion. This is called the principal of pikuach nefesh (saving someone’s life) overrides the prohibition of nivel hames (disrespecting the dead). He was not michadesh (he didn’t come up with this/ this is not a new idea) this concept it is based upon a Gemara (Talmud) in chullin daf yud alef (11) for those who want to look it up, where the Gemara (Talmud) says explicitly that pikuach nefesh (saving someone’s life) is able to override the issur (prohibition) of nivul hamet (disrespecting the dead).
OK. OK. Which part did I lose you my dear?
I hope not.
Someone asks a question… got confused
What I mean very simply is, if you have a question of desecrating a dead person’s body, which is a biblical prohibition, and you have on the other hand a big big mitzvah of saving human life, are you allowed to violate the desecration of a human beings body for the sake of saving somebody’s life with that body, either by medical research on that body for immediate information or in this case to harvest organs from the body? Clear?
So what the Noda Beyehuda says in this case is we’re allowed therefore to violate the prohibition of desecrating a dead person’s body for the sake of saving human life. Either doing post mortem autopsy on the body to see why the person died, there was a mistake made in the surgery or the medicine they were given were toxic and killed them, we’ll then change the prescriptions for the other patients with this type of situation, they shouldn’t have to suffer the same thing. What we want to do is apply it to taking the organ out of the body, which the Noda Beyehuda was not talking about in those days, there was no such thing as transplant surgery, taking an organ from this person’s dead body and transplanting it into a recipient. So the latter posek (halachik rule maker) Rav Unterman, who were talking about a question going into the 1900’s, it’s an odd era where the medical community had the ability to do such that they used the Noda Beyehuda’s logic today to say we can take a dead organ out of a dead person’s body to put into a live person’s body for the sake of saving human life. I’m desecrating the dead person’s body, but to save human life, what could be better than that and therefore, you are allowed to override this for the sake of that. Clear? Ok
That’s the heter (allowance) of organ donation, that’s what it’s based upon, and there are all types of organ donations, live organ donations, you can give today, believe it or not, livers can be given out from a live donation, multiple parts of that liver can be given to multiple people and what happens is the livers themselves in the person they were taken from grows back to the way it was before and people receive it, it grows to a full liver. The liver is the only organ that can regenerate itself to go what it was, and the person loses nothing by giving, and the person who receives it, you’re giving them life again. When it comes to other organs you can also give a live kidney transplant today, g-d gave you a spare tire therefore if you are medically healthy to be able do such and you are a match and it match, you have the permissibility to give a live organ donation of a kidney if you so desire, according to Halacha. The technicalities of that I can get into if you want me to. When it comes to the question of a cornea transplant, when it comes a heart transplant, when it comes to a lung transplant, when it comes to a skin transplant, when it comes to an ovarian transplant, all of this has to be done when the person is dead. But the question is how dead do you have to be, or what level of death do you have to be to be able to harvest these organs? When it comes to corneas, when it comes to ovaries, when it comes to skin, there even if you are on the most strictest interpretation of death which means respiratory cardiac death you can still harvest these organs and have a successful transplant. Kidneys it works upon, ovaries it works upon, corneas it works upon, skin it works upon, and this has been proven. It’s when it comes to lungs and it comes to hearts that that’s where the problem occurred. That based upon the old cardiac respiratory activity interpretation they could not therefore harvest the heart and the lungs when the actual cells of these organs were still functional and healthy enough to have a successful transplant impact upon the recipient. And therefore that’s why the Harvard Ad Hoc committee and later on the president’s commission tried to figure out, could we have another interpretation of death to bring the dead back to an earlier stage where these organs could be taken from a person declared dead by this new interpretation and in turn takes these organs and then transplant them to a recipient. So that’s how brain death or cerebral death or if you want to call it respiratory death that’s how all these interpretations came in as an answer to a need, a medical need. And the question was, in the world of Halacha, do we accept this redefinition of death or do we reject it, that’s what the whole debate is all about.