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HODS Rabbis & Physicians Seminar

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Rabbi Tzvi Flaum

HODS Rabbis & Physicians Seminar

Albert Einstein College of Medicine

[Part 6:  9 minutes 16 seconds]

 

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Nobody’s questioning the fact if a person is dead as dead can be you can take an organ to save human life, that’s not the debate. The debate is what is considered dead, to say that you are now dead to therefore have your body desecrated in its death state to save human life. I’ve never seen any posek (opinion) on the face of the earth ever say I can take a person who is a PVS patient, or a person who is comatose, or a person who is coming to the end of their life while they have the simanei chiyus (signs of life) is still there, and let them or their mishpacha (family) members allow the person to say, “kill me for the sake of doing a transplant”. I’ve never seen, up until today, anyone paskin (halachicallly decide) that way, and I will never paskin (halachically decide) that way simply because according to chazal there’s one problem that I have, I have many problem, but one major problem I have is if you say that were chayei sha’ah, listen to me very carefully, if for one extra two extra minutes or 10 extra minutes of life, you are allowed to be mechallel shabbos (violate the shabbos)  to literally take shabbos and do whatever you have to do to take a person out of a crush crushing state under a building when you know the person is going to live for a couple of minutes, but for chayei sha’ah you’re allowed to save life, mechallel shabbos. How can u take therefore this life (you have a couple minutes left) and say I’m going to destroy their life to save another human being’s body. There’s no such mitzvah of killing yourself to save somebody else. So you’ll say to me, we’ve seen circumstances ,it was quoted before, in certain circumstances where these things took place, so lets analyze some of these circumstances.

The most famous case in halachic literature when it comes to a person literally killing themselves to save the community is the case at the end of shmuel alef (Samuel I), the end of the book of Samuel, where we find that Shaul Hamelech (King Saul) and his sons were surrounded by the Philistines (by the Plishtim) and the Torah tells us over there that he literally threw himself on his sword to commit suicide to kill himself, he shouldn’t be captured alive.

And the question which everybody asks is but suicide is so sacrilegious, what right did he have to take his life, what was he doing over here, how could he do that? So the answer that’s given, and I want you to mark this down, by Rav Shlomo Luria one of the great Gedolim (great rabbis) of the 1700s, in his Yam Shel Shlomo (Sea of Shlomo), he says that over here Shaul was a melech, a king, and he made the following calculation, if I’m captured alive and I’m tortured by the Philistines and the Jewish army and the Jewish community sees that happening they’re not going to rest and be quiet. They’re going to try all different types of military methods to try to save me even they’re going to risk their lives on levels that I know the philistines are going to set traps they’re going to try to save me and who knows how many hundreds or thousands of people are going to die if I’m still alive and being tortured in front of their eyes. Therefore his calculation was, I will take my life as the king the kavod (honor) of the our monarchy is at stake the kavod the health and welfare of the Jewish people is at stake and I will take my life to prevent that eventuality from taking place. From here the Maharshal derives the principal that a king, and a person on that level, can sacrifice his own life for the sake of the concept of the tzibur, of the community at large. For the concept of Kiddush Hashem, it’s called suicide for the sake of Kiddush Hashem. Taking a life for Kiddush Hashem purposes is not the same thing as giving up my life and simply saying I’m willing to commit suicide to save a person’s life out of the context of Kiddush Hashem. Hear what I’m saying to you, Kiddush Hashem is a matir (allowance) in suicide, non-Kiddush Hashem is not a matir (allowance) in suicide, that’s a very important thing to remember. Now, getting back to this topic, we therefore see that according to this that there is a permissibility therefore for a person to donate organs, all types of organs. The big debate that Rabbi Rappaport and I had this morning, and this is a major debate of how to define metaphysically what life is, is life contained in the heart, is it contained in the brain, is it brain activity, is it circulation, this is a question I don’t think we ourselves will ever be able to resolve. But what I want to do, and this you have in your mar’eh mekomos (source sheets) and I purposefully put it here because I wanted you to see it with your own eyes. Turn to page number 7, two of the greatest rabbinical personalities we had in our generation, one’s alive and one’s no longer alive, is Rabbi Auerbach in Eretz Yisroel (Israel) z’l (may his memory be blessed) and yibadel l’chayim Rav Eliashiv, now these gedolim (great rabbis) were asked their opinion whether they accept brain death as an alternative to that of cardiac death. And I want to show you their response, this is their own letters that were written up and signed by them, this is the predetext of this, this appeared in Abraham Ben Abraham’s work Nishmas Avraham, that’s where I took these quotations from, he is the source, and listen to me, what he says, he says on top of the page where is says A,

Amar li harav Shlomo Zalman Auerbach, (Rav Auerbach said to him) it’s his shita (opinion), he says up until sheyachlitu gedolay hador, until the gedolei hador (great rabbis of the generation) come to a conclusion, shecholeh ze nikrah met, that a person who is brain dead is considered dead, chayavim lehamshich lehazon ulehata bikor cholah bhusa akara, we have to continue feeding the person giving the person support even though the person has no cognizant of what’s going on, uleyitztarech sheyasu elu al chilul shabbos, even if you have to perfom chilul shabbos (desecration of Shabbat) to take care of this person, tzarich laasot co. you have to do such. Kamuvan ein laasot shepulat chiya the person goes into cardiac arrest there’s no mitzvah of calling a code. Which means what is simply obvious, once a person reaches brain death you have to give a DNR do not resuscitate. That’s clear from Rav Auerbach, once you reach that level and there’s no way of bringing that person back from brain death DNR is allowed to be signed. Many people ask me, as a Rav who paskins (halachically declares) these she’eilas (questions),

 

Someone from the crowd: he goes further Rav Auerbach says you can pull the plug in that case

 

“We haven’t  finished yet…”

Now, “shuv dibarti” I then spoke he said with Rav Eliashiv

Vesha’alti ma hadin vehaosim v’hamikreh shehachole kaze lehamshich lehitkayem bemeshech chadash bamitlev” what do you do in this type of case where a person could obviously still has heart movement and he’s in this state.

Nikreh goses bemeshech hazman, he’s considered a goses (dying person) shlomar lehagoon, sheledayka lecholeh ze nikra safek, that he’s called a safek goses (questionable dying person), which means it’s worse than a goses (dying person), it’s even on a worse category, then besikum (summary) that he gives B afilu neemar lefi hadayka rav Moshe Feinstein, even if we assume, and this is playing that you know (that) the assumption, that Rav Moshe Feinstein accepted maves geza, brain death, shenechshav kesim shel moach veguf, if were accept that as being the thesis, and obviously he’s saying, lets say take it face value as what he held, hada vnasu lemachloket gadolei haposkim, I want you to know that this is based upon a major machloket (argument) amongst the gedolei haposkim (great halachic deciders), ulemayla therefore yesh can safek shel retzicha, there’s therefore question of potentially maybe killing somebody because you don’t know what the psak (decision) is, ulekichat halev shel adam bmavat ze lichen yesh lehachmir, the person should be machmir (strict), this is what both what Rav Auerbach said he then said uberev Shabbat kodesh amar li hagaon Rav Shlomo Zalmin Auerbach sheem yesh mishtamesh Rav Moshe Feinstein chaza ma shema shepasak that he says that people are told that Rav Moshe Feinstein changed his mind Shekedei lehacriz mavet tzarich lehadat kol shloshet tenaim that where Moshe initially said you had to have three t’naim (conditions) and that is stopping of the heart stopping of the breathing and motionless as a stone ach ein ze…hadarech hazo mavet geza bshas, since as far as I’m concerned brain dead is not found in shas (6 books of mishna) whatsoever, aino yachol lechadesh hador hazo beyamienu, we cant bring into existence this new type of interpretation today…rak shetokem hasanhedrin but if the Sanhedrin (Jewish court) comes to existence, yehe bechol kochom if they decide they want to accept brain dead they’ll have the ability to kovea mavat geza nikra mavet they can make that determination o lo, lehachoz, up until that point in time, amar li hagaon shlita, Rav Auerbach said az lehotzi min halev al kol ever kol zman sheli bapoem bkirvo, so it seems that Rav Auerbach says something quite interesting, on one hand he says we cant change brain death and accept it until the Sanhedrin gives us that. It’s interesting, if they will, he will accept it. In his mind what’s also fascinating is he claims there’s no Talmudic text to explicitly say it which means he knew the Mishna in Masechet Ohalot (Tractate Tents). But obviously had, he didn’t feel that wasn’t a definitive source to prove the ethics of brain dead, because if it was how could you say in you don’t find in shas (6 books of Mishna) any type of source. But nevertheless one thing is for sure that he did have a certain open-mindedness that if in fact chazal would change that interpretation he would have no problem accepting it. What is also obvious is that they were in a state of tremendous tension. It didn’t just say I reject brain death they pashut (simply) didn’t know what to do, what to accept or not. Which means it was a safek in their mind how to deal with it, and that’s why Rav Eliashiv phrased the phraseology it’s a safek goses (questionable dying person) which means it’s not a regular goses, a moribund patient, it’s even more critical than a goses (dying person), even a worse situation than a goses (dying person).

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