Rabbi Binyamin Walfish
[33 minutes 57 seconds]
TRANSCRIPTION OF VIDEO
Well, as far as the RCA’s involvement in organ transplants, the actual question came up, of course, when Barnard started to do heart transplants. And at that time the Rav, who was the Chairman of our Halacha Commission, stated unequivocally that this was double murder because there was no real criteria for absolute death of a person, and the only way you could prove a person was dead was when he stopped breathing and when his heart stopped beating. And since they were all (most of these people) were under resuscitation (they were on heart and lung machines), according to halacha you couldn’t remove the machine because removing the machine might kill them. Because we didn’t know whether they were really dead; vegetative state is not a definition of death as far as halacha is concerned. So, RCA came out unequivocally against any kind of donation/transplant which endangered the person’s life. And it was unequivocal, and all the poskim were against it. And that was it.
Before we began talking about organ donations, New York State developed an addendum to the driver’s license which offered people the opportunity to donate their organs for organ transplantation. Now, they weren’t concerned with the halachic definition of death, so they had many things on it. At that time, they were doing heart transplants. They weren’t doing kidney transplants, heart transplants, corneas of the eye. I don’t even think lung transplants were possible at that time. And certainly pancreatic transplants and liver transplants weren’t even heard of at that time. If I remember correctly (but I might be wrong; I might have omitted a few), the 3 transplants that they were talking about were corneas, kidneys and heart. And of course when it came out, all of the rabbis in New York turned to the RCA office for a halachic decision as to how Jews should treat that addendum, whether they were permitted to do it. So I went to see the Rav. When I speak of the Rav, I speak of Rabbi Soloveitchik, he’s known as the Rav, that’s how we call him. I went to see the Rav and he asked me questions. I told him what it was. He said as far as cornea transplants are concerned: Definitely, 100%, you can donate corneas because a cornea doesn’t kill the person that you take it from, and at the same time you’re saving a life. Because as far as the Rav is concerned, the person who is blind halachically is considered almost like a dead person; he doesn’t have to perform mitzvot and do other things like that. So he’s considered a question of pikuach nefesh, of saving a life. And he said it was 100% permissible for cornea transplants. I said heart transplants was out of the question because we had no exact definition of death, and when you take somebody’s heart you know you’re not going to live. And I asked him “What about kidneys, Rebbe, what about kidneys?” He said “What is the percentage of people who choose kidney transplant to dialysis?” And I said “about 70%.” At that time, it was about 70% because kidney transplants weren’t as perfect as they are today where there were no immune problems and rejection problems which they’ve all solved today. So he says “70%,” he said, “even though that’s a majority it cannot be considered pikuach nefesh.” He still would prefer that they did dialysis where there’s no chance of harming a person’s actual body. And so he said keep it for a while. When it reaches the point where 85-90% of the people choose kidney transplant to dialysis – – which today it’s 100% if they can get a kidney, and they stay on dialysis only if there’s no kidney available – – then we can say that it’s saving a life, pikuach nefesh, and he would permit kidney transplants also. As far as heart is concerned, it just didn’t even enter the picture.
What year was this about?
Probably about ’79. Well, I was in the RCA; it must have been about ‘80-81. It was before the actual Harvard Criteria was perfected, OK? That was it and that remained that way until 1983-84. Don’t hold me exactly to the date, but around there, when I got a letter from Rabbi Silver in Harrisburg stating that the State of Harrisburg was now trying to legislate a law defining, giving a definition of death.
The State of?
Pennsylvania, he was a rabbi in Harrisburg, Pennsylvania. And he wrote me a letter saying what is the RCA’s position on the definition of death? What do we consider the definition of death? And you couldn’t say that the definition of death is when the person stops breathing because that makes all the organs impossible to transplant. Because if you have to wait until a person stops breathing, the organs become useless.
You mean when the heart stops beating?
When the heart stops beating, the heart becomes useless; at that time, all the organs become useless. And today we can actually preserve a kidney for up to 3 or 4 days. Even a heart now for up to an hour if we can get it beating again. And you’d have to do it like a minute after the heart stopped which is almost an impossibility just in terms of the operation and so on. So he wanted to know what our definition of death was. So I called Rabbi Tendler. I said “Moshe, is there anything new in the medical?” You know, he was up to date on everything. If there’s one talmid chacham, if there’s one halachic decisor who should be asked all the questions that come about, besides Dr. Steinberg here in Israel, who should be asked all the questions on what is permissible and not permissible halachically in terms of medical ethics, he should be the authority on it, because he not only knows halacha but he knows medicine. And you can’t decide an issue unless you know the medical facts. So I called him up and asked him. He said I don’t know, it must be something that God ordained because I was just about to call you on this situation to call a meeting of the Biomedical Ethics Committee. Because Harvard just came out with a foolproof test of brainstem death. And that was the apnea test. You know what that is, where you flood a body with oxygen and we can remove the heart and lung machine without causing the death of the individual. And this test has been tested for many years, it’s perfect. There’s no question about it, and you can rely on it. So I said, “Well, what do we write into the law?” So he gave me the exact language that should be written into the Pennsylvania law, the technical terms , the medical terms. And that Rabbi Silver should insist that they add a clause that if any further, more sophisticated tests are created that those also have to be included.
I got the information and I went to the Rav again. I went to Rabbi Soloveitchik and I said, “Rebbe, here is the situation, how do you feel about it?” And he listened very carefully. And his question to me was “Is Rabbi Tendler certain that this test is foolproof?” I said, “He told me that, Rebbe. If you want, I can have him call you directly.” And he said “No, I take your word for it.” He said, “If Rabbi Tendler says this test is medically conclusive, and in these things he knows what he’s talking about, and therefore I give you permission to send a letter to Rabbi Silver saying that this is the criteria for death; brainstem death is the definition of death as far as the RCA is concerned.” And I wrote such a letter to Rabbi Silver. Now, when we wrote letters when the Rav was alive, when we wrote a letter, we never said “Rabbi Soloveitchik said…” We always said “the Halacha Commission of the RCA.” But every member of the RCA knew that the Halacha Commission of the RCA was Rabbi Soloveitchik, and while there may have been technically other members of the Commission, nobody would contradict the Rav’s psak. All, in effect, he was the Commission, but we never used his name. And for the reason just to conserve his health and his peace of mind. Because if we put his name on something, he’d start getting calls from all over the world. We didn’t want anyone to know it was him; it was the Halacha Commission of the RCA. That, if it wasn’t thrown out, that letter should be in the files of the RCA, the letter that I sent to Rabbi Silver.
What year was this?
This was in 1983… ’83-’84 right after the Harvard Criteria were announced by Harvard University.
As far the Gemara’s definition of death, the Rav felt that it was the stopping of breathing that was the definition of death according to the Gemara. 1983, or more possibly the beginning of ’84, after I got this letter from Rabbi Silver, I went to see the Rav on the subject. I called Rabbi Tendler first. Rabbi Tendler told me about the Harvard Criteria and the brainstem death and so on and then I went to the see the Rav on the subject. And I explained to him what Rabbi Tendler had told me about brainstem death, and he asked me whether Rabbi Tendler was certain that this test is conclusive without any doubt, and that it has been tested and has been accepted as conclusive proof that the brainstem is dead. I said “yes” and I offered to have Rabbi Tendler call the Rav. And the Rav said “No, it’s not necessary; if Rabbi Tendler says that this is so, he knows what he is talking about on these matters and we can accept it.” And that’s when I wrote the letter to Rabbi Silver explaining to him the procedure and telling him the exact language that should be written into the Pennsylvania law as the definition of death.
And it remained that way. Never had any occasion to do anything else about it. We never passed an official… the RCA Executive never took up the question because we had no reason to. These were individual she’e’lot which people asked. And whenever people asked a question, we gave them the decision and that was it. We never discussed them officially.
We only took up the matter officially when this business of health care proxies became the law of the land in most of the states of the land; now it’s in all states. That any person who undergoes an operation must sign a health care proxy designating what he wants done in case he becomes comatose or is unable to make the decision on his own. It became a very serious problem. So I called Rabbi Tendler. And I said, “Rabbi Tendler, we have to do something about this. We have to come up with some kind of criteria to give to our members as to how they should proceed in a health care proxy.” Most people were just saying I appoint my children as my proxies which is ridiculous because all they’re doing is not making the decision on their own and forcing their children to make the decision. And how many children are going to make any decision which could possibly cause the death of a parent? And then there’s some people saying “Well, consult my rabbi.” Rabbis didn’t want to take this upon themselves, because if there’s no halachic criteria which they can go by, they’re not going to make a decision for someone’s family to take them off life support or not to resuscitate to begin with, and so on, etc. But the hospitals were insisting on it because they didn’t want to have to go into court every Monday and Thursday on these matters. So we called a meeting of our Biomedical Ethics Commission.
In the interim, Agudas Israel, who… I give them credit for being Johnny on the Spot all the time. When this matter came up, they immediately came out with a health care proxy which in effect said: If I am in a comatose state or unable to make my own decisions then I hereby appoint my family, or my son, my daughter, or whoever, as my… the person to make the decision in consultation with an orthodox rabbi. And they called us, they called Rabbi Angel, who then was President of the RCA, and asked if he would distribute the health care proxy. By that time, we had started working on our own. And Rabbi Tendler drew up a health care proxy which was really a health care proxy; it gave the person who was signing it, while he was still of sound mind and able to do it, the ability to make his own decisions as to what he wanted done to him if God forbid he became terminally ill. So Rabbi Angel said “Yes, we’ll be glad to send it out” because there was nothing else available. But when Rabbi Angel came to me and said we’ll send it out, I said “You can’t do that, Rabbi Angel, because it’s in direct opposition to what we want to do.” This is not a health care proxy; this is just passing the buck and we want to come out with a health care proxy which gives the person who is ill, or to give the person when he is not ill, the ability to make the decision if and when he God forbid will be ill in that sense. So he called up Agudah and said, well, if you want to send it out together it with ours, I have no objection. I have no objection to giving any person in the world the right to reject our health care proxy and accept the ones from Agudas Yisrael. Because the Agudas Yisrael proxy, anybody can accept because it doesn’t say anything. So Rabbi Angel said fine. So he called up Rabbi Sherry, he said we’ll send out your proxy, but we’re not prepared to send it out at the moment; I’ll let you know when to send it to us and we’ll send it out.
In the short period of time – – I don’t remember how long it took us to develop the health care proxy. It wasn’t done overnight. It took several meetings of the Biomedical Ethics Committee. And it took Rabbi Tendler himself a while to really figure out what he wanted in this health care proxy. This was not done just without giving it any thought. He wrote specific things in the health care proxy. I don’t know whether you’ve ever seen it, but you have in the health care proxy a general statement and then you have specific instructions. For example: “If I am in an irreversible coma or a persistent vegetative state, and the opinion of my doctor and at least 2 other doctors have no known hope of regaining awareness and higher mental functions, then my wishes are:
Cardiopulmonary resuscitation: I want/ I do not want. The person makes the decision, not his children, not the rabbi.
Mechanical breathing (breathing by machine): I want/ I do not want… etc, etc.
Then we have a second choice: If I am in a coma and in the opinion of my doctor and at least 2 other doctors have a small possibility of recovering fully. In the other one, he had no possibility. A slightly greater possibility of living with permanent brain damage, and a much larger possibility of dying, then my wishes would be….. And we go through the same thing.
Cardiopulmonary: Say I want/ I do not want.
The third alternative, three. If I have brain damage in the opinion of my doctor and at least 2 other doctors which cannot be reversed, and which makes me unable to recognize people or to communicate in any way, and I also have a terminal illness (underline). (I don’t just have a cold) Terminal illness such as incurable cancer that will likely cause my death, then my wishes are…. and then again the same choices.
Four: If I have brain damage in the opinion of my doctor and at least 2 other doctors cannot be reversed and that makes me unable to recognize people or to communicate in any fashion, but I have no terminal illness and I can live in this condition for a long time (okay?), then my wishes are…. Living with brain damage, in other words, like the Karen Ann Quinlan case where she was in a coma for I don’t know how long and then they removed the machines and she was still breathing, and she remained in this coma for many years before she died. I want/ I do not want, etc.
The only choices we don’t give the person to make while he’s alive, or even when he’s sick and dying, is the refusal to take food because that according to halacha is killing a person; you can’t do it.
What about organ donation. Can you show us?
Now, so therefore this is the proxy we came up with, which is a proxy, not just some blank statement. In our health care proxy, we have a third thing: Organ donation. Upon my death I wish to donate life saving organs such as my corneas, kidneys, hearts, lungs, liver and pancreas for the sole purpose of transplantation. Today it would be any organ because at that time this was the only ones they had. In all cases, concurrence of an orthodox rabbi is necessary before my organs are taken for transplantation because we wanted to make sure they did the Harvard Criteria test before they declared a person dead. Some doctors don’t care too much; they say this person’s not worth living, let’s say he’s dead anyhow, right? If no orthodox rabbi is available, my agent or treating physician shall consult with the Bioethics Commission of the Rabbinical Council of America.
This is our health care proxy and this is what we sent out. Together with this we sent a list of instructions and how it had to be signed. Because in several states you couldn’t just sign it, you had to have witnesses, it had to be witnessed by, it had to be notarized in some states before they accepted it. And secondly, we enclosed a donor card. We had a donor card that we enclosed that people could use if they wanted to use it. And we sent that out. And all hell broke loose. Rabbis shouldn’t use that word right? All heck broke loose. It was terrible. Agudas Yisrael came out and blasted us for offering people the choice to kill themselves, commit suicide, all kinds of things we were accused of.
In our health care proxy we have a clause, number 3, organ donation: Upon my death, I wish to donate my organs, etc, etc, etc. Now you asked why we didn’t make this a choice. Because there’s no necessity to make it a choice. A person either signs the will or he doesn’t sign the will, the proxy, I mean. If he signs the health care proxy and he doesn’t want this, all he does is black it out and it’s not there. If he doesn’t black it out, that means he’s already agreeing, so there’s no question of I want or I do not want. We don’t give them a choice on this matter because it’s not something… Now again if he doesn’t make the choice, and even if he doesn’t sign the health care proxy as far as organ donations are concerned, we as a rabbinic body have no objections to the family making that decision if they want to. Because if the person has been declared dead and he didn’t say anything about his organs, and his children want to donate his organs, fine.
So what happened when you sent it out?
We sent it out and there was a revolution. People began attacking us for permitting organ donations. And the health care proxy itself they also objected to because we gave too many choices here; who are people to make choices? All these things, etc, etc. Of course you have to resuscitate and, all of these things, you have to save a life, you are killing a person and so on.
All right, so they objected, what can we do? This wasn’t the first time the Rabbinical Council of America was attacked by the right wing community in America for some of the positions we took. They had been denouncing us for years because we were members of the Synagogue Council of America. So they would have nothing to do with us anyhow. Their Misnagdim wouldn’t join our organization; it wasn’t kosher enough, etc. etc. etc. Okay, fine, so they came out against us. But then they began to attack us. Before we sent out the health care proxy, we had to have a decision made by the Executive Committee of the RCA; we couldn’t just send it out. So before we sent it to the Executive Committee, we approached our Halacha Commission in order to get a decision from them to approve this because at that time, by then, the Rav was ill; he was incapable of making decisions. Because otherwise it just would have gone to the Rav. We would have shown him the health care proxy and said “Rebbe, this is our health care proxy, what do you think of it?” And he would have given us his decision about it. But we couldn’t go to him, so we called our Halacha Commission together. There were 5 rabbis on it. I don’t know if I mentioned that.
What year was that?
This was in 1990-1991 before we sent it out, just before we sent it out, when we were discussing, right after we had created the health care proxy, before we actually printed it and sent it out. We sent it to the Halacha Commission for a decision. There are 5 members of the Halacha Commission, 5 great rabbanim, I won’t mention their names… I don’t want them to be bothered by this. And we sent it to them for their decision, as to how they felt about the health care proxy.
Well, I think you should mention who is on the Halacha Committee.
I don’t have any objection to making it public. I don’t know whether the RCA or these people would want me to make it public; that’s why if you don’t mind I won’t. I can just assure you it was composed of our Bet Din at the time.
Who was Rabbi Schwartz, Rabbi Tendler was on it, Rabbi Nachum Rabinowitz was on it, Rabbi Mordechai Willig, and Rabbi Hershel Schachter. I’m not going to tell you who decided what. I’m just going to tell you these were the people on the Halacha Commission. When the Halacha Commission got the health care proxy, they immediately contacted us about the… well, Rabbi Tendler didn’t because he wrote the health care proxy… But the other 4 rabbanim immediately contacted us about the organ donation clause. They didn’t have any objection to the other clauses, but for the organ donation clause they asked the question. So we explained to them why we put it in, that we had the thing, and I mentioned to them my discussion with the Rav when it first came about in 1983 or ’84. And I… To make a long story short, two of the members of the Halacha Commission were very upset and they said we cannot do that; we don’t accept the idea, we don’t accept the concept of brainstem death, and therefore we can’t organ transplant; organ donations are against halacha. The other 3 said that we agree that brainstem death is the definition of death. They did their own research on the matter, the other 2 besides Rabbi Tendler did their own research on the matter and so on, etc, and they voted yes, that we can send out the health care proxy. Like in everything in halacha, the majority rules, the halacha k’rabim, so 3 were for it, 2 against it.
We brought the health care proxy to the Executive Committee meeting of the RCA. The Executive Committee listened to both sides. There were people on the Executive Committee who objected for the same reason that those 2 members of our Halacha Commission objected. But the majority of the Executive Committee voted that it was halachically permissible and we could send it out, and we sent it out. But by that time it had become known that there were 2 of our members of our Halacha Commission who objected to it who were also talmidim of Rabbi Soloveitchik. And Agudas Yisrael was against brainstem death; they refused to accept the criteria, so they started a campaign against our health care proxy. I was attacked personally, by Rabbi Scherer, alav hashalom, ..He was a great man, he did a lot of things for Agudah, I have nothing personally against him, but I was attacked by him in a very, very ugly manner. The RCA was attacked; it was very, very… it was not good. And we stuck to our guns and we sent it out.
And there were g’dolim in the world who were against brainstem death. There are still g’dolim who are against it. I succeeded in convincing the Chief Rabbis of brainstem death. I had a cocktail party… cocktail session in my home for Merkaz Harav for the yeshiva; I was on the Board. And Rabbi Shapiro came to America to the cocktail party. I had two doctors from Teaneck who were talmidei chachamim with musmachim. I said “You have to come because after we do the work for Merkaz Harav, we are going to sit with Rabbi Shapiro and discuss the matter.” And we did. Rabbi Shapiro listened. He was very interested. He came back to Israel. And he did his own research in Israel, Rabbi Shapiro came back to Israel and he discussed it with his people I’m sure, with Rabbi Eliayahu who is the Rishon L’Tzion. And I’m sure he spoke to Dr. Steinberg. Dr. Steinberg also accepted, was also a talmid hacham in his own right; he was a scholar who also said that brainstem death is conclusive. He knew that. He also happened to be a pediatric neurologist so he knows what he’s talking about. And they accepted, and at that time the Chief Rabbinate said: We now accept the concept of brainstem death, and therefore transplants in Israel are now permitted.
Well, I think the Chief Rabbinate accepted in 1986; they passed a resolution.
Whenever it was… it was 1986, this was before.
When was the cocktail party?
The cocktail party was in ’86, it was around that time; it was way before the health care proxy. I’m mentioning that the Chief Rabbis accepted it because it was not only that the RCA accepted it, but the Chief Rabbis accepted it; I mean it was not something new. Rav Moshe Feinstein, Zichron Tzaddik LeBracha, also accepted it and he wrote a tshuva. His first tshuva, on the definition of death stated specifically: A person is not dead until he stops breathing. The Gemara in Yuma, that’s what he said.
1991, the Executive Committee passed a resolution accepting the health care proxy in which was included the clause for organ donation. And of course they accepted it, because they accepted the concept of brainstem death because they couldn’t have accepted the health care proxy without accepting brainstem death. And that became the official policy of the RCA. And the whole question of brainstem death was discussed at the Executive Committee meeting, because of course the rabbis asked the question, “How can you donate organs?” And that’s the answer we gave them. And it became official policy of the RCA. And as I say here, there was a very strong campaign against it. They got Rav Aharon Soleveitchik, ztz’l, to write a tshuva that his brother never accepted brainstem death which unfortunately I had to contest because, not that I didn’t trust Rav Aharon Soleveitchik, but Rav Aharon Soleveitchik probably spoke to the Rav before the Harvard Criteria were established. I’m sure he didn’t discuss it with him afterwards, but there was one Godol in Eretz Yisroel that was against it and that was Reb Shlomo Zalman Auerbach, ztz’l, who when we performed… I don’t want to take the time to go into this in detail… but when we performed a certain experiment, he sent one of his people to observe it, he changed his mind about brainstem death. And he wrote a tshuva which is in existence; it was printed in Atzia, in a medical magazine in Atzia. He changed his mind about brainstem death and he said yes, brainstem death is the definition of death. Reb Moshe wrote a subsequent tshuva.
Did you have any personal interaction with Reb Moshe Feinstein on this issue?
No, Rabbi Tendler did. The one who spoke to Reb Shlomo Zalman Auerbach here in Israel was Dr. Steinberg, who represented us on this issue here and who organized the test and the proof of the matter. And Reb Moshe Feinstein was, of course, spoken to by his son-in-law, Rabbi Tendler. And he went to see Reb Moshe Feinstein after. Now that tshuva was written long before the health care proxy, long before the health care proxy. And since Reb Moshe had written the tshuva that the definition of death was when the person stops breathing, when they created the apnea test, the Harvard Criteria, his son-in law Rabbi Tendler wanted him to change the language of the tshuva to include brainstem death because brainstem death was proof of a person stopping breathing. The definition of death didn’t change by this, by brainstem death. The definition is still when a person stops breathing, he’s dead. The question is when does he stop breathing? Once they created the test where you could prove that his brainstem was dead, which means that he couldn’t breathe on his own, it was impossible, it was medically impossible. And we didn’t do that; the Ribono Shel Olam did that when he created the human being.
Therefore, we had now a conclusive test that a person has stopped breathing even though while he’s on the machine his lungs are still working. But it’s not he who is breathing, it’s the machine that’s working. This is the point that was made here. And Reb Moshe went ahead and wrote a tshuva saying that my son-in-law… the tshuva is in print, it’s in print… wrote a tshuva saying that my son-in-law has told me about a test which is conclusive as far as the inability of the person to breathe; and therefore, if you do that test, putting a feather under his nose is not necessary. That proves that he can’t breathe. But I know that Rabbi Soloveitchik rejected it because he wrote the tshuva … Rav Aharon Soloveitchik. He wrote the tshuva. And therefore, the only thing I can say is that I had to disagree. I didn’t disagree with Rav Soloveitchik; all I said was Reb Aharon didn’t speak to the Rav about this. And we couldn’t speak to the Rav anymore because he wasn’t able to communicate anymore. I’m sure that had the Rav been able to communicate this whole thing would have been cleared up quickly because the Rav himself would have said, “Yes, I accepted it.” But we couldn’t verify this. And the fact that Rabbi Walfish later wrote a letter to Rabbi Silver… Who is Rabbi Walfish, you know? They weren’t going to accept my testimony.
As I said before, in this video, I met with Rabbi Soloveitchik in 1983-84 to discuss this concept of brainstem death and Rabbi Soloveitchik told me personally that he accepted it based on the testimony of Rabbi Moshe Tendler who said that this test is conclusive concerning the death of an individual. And Rabbi Soloveitchik accepted it, and as a result of his acceptance I wrote that letter to Rabbi Silver. I’ll testify to that.
If ..Irreversible cessation of autonomous breathing was the definition of death according to the Gemara in all cases. But they hadn’t a way of knowing if a person stopped breathing unless they put a feather under his nose. And now we have another method of determining it. And that’s what Rabbi Feinstein wrote in his second tshuva; that we have another method of determining it which is far more conclusive than putting a feather under his nose.
I have the Israeli donor card, the ADI card. And I also have the card from your Society, the Organ Donor, Halachic Organ Donor Society. And I’ve urged… my children have the card. I’m going to start… I just called ADI and asked them to send me some registration forms. I intend to give it to my grandchildren. They’ll decide themselves. Some people are superstitious about it. But you can’t decide these things for people; these are decisions people have to make on their own.