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Full Interview (Part 1)

Rabbi Dr. Moshe Tendler

Full Interview (Part 1)

[17 minutes]

Rabbi Dr. Moshe Tendler:

At Albert Einstein College of Medicine, we had a lecture organized by the Rabbinical Council of America….where we went in, I lectured there, and then we went into the hospital, and there were patients there who were on the ventilator, who had to be checked whether they were brain-stem dead, and some were. .. .so that people had a chance to see how this is done. How the dignity of the patient is maintained, nothing is done to hurt the patient, etc. Unfortunately, those who had been opposed to the brain-stem definition of death refused to come. That was one of the dramatic signs that the issue had become an agenda, not a Halacha. And the agenda was to fight the brain-stem death definition. How open, how transparent the battle was between myself and Rabbi Schechter and Rabbi Willig. In an exchange of letters that went to every member of the RCA.

And after that, there was a vote in the Executive Committee, and based upon, one, how they evaluated the facts – – , and Rabbi Walfish, who was really- – He was Executive Director then – -Rabbi Walfish, he led the battle with the RCA. But most importantly, one fellow – – I don’t recall who it was, maybe Rabbi Walfish – – got up and said “I don’t understand why there’s an issue now; it’s a moot point. The Rabbanos Haroshos [HaRabbanut HaRashit – The Chief Rabbinate] ruled. It is part of our policy to support the Rabbanos Haroshos.” [HaRabbanut HaRashit – The Chief Rabbinate] And then, after that, it became policy… period.

There is a ‘hashkafa’ – – there is a broad construct – – and it involves dignity of one created in God’s image. It applies to respect when alive and respect after death. It’s been our principle, and one that unfortunately has been confirmed by history, that if you treat the dead human body as without moral value, if you treat him as an animal, then you’ll treat the live human body as an animal as well. So that surely, issues of desecrating the dead, mutilating the dead, those are critical issues in Jewish law. We permit autopsies only where there is an immediate benefit; we don’t allow the so-called ‘go fishing’ autopsy; if we look around, maybe we’ll find something. We only approve of directed autopsy; if we have an issue that must be resolved for the benefit of the family such as a genetic issue, or when the patient suffered from some chronic infection that could affect others. Nevertheless, we’re talking about, or will be talking about, organ donation.

Organ donation is not for cosmetic, frivolous purposes. It’s focused on the saving of life. Anyone who is even primitive in his knowledge of Jewish law knows that all laws are suspended when it comes to saving a human life. Only three cardinal sins remain for which one must forfeit one’s life: adultery, idolatry, and murder. Otherwise, anyone who raises the issue “but…but…but…there is a Halachic prohibition” only reveals total ignorance of the structure of Jewish law, which places ‘pikuach nefesh’ – the saving of human life – above all other laws except these three cardinal sins. All God needs is one molecule of DNA to reconstruct the whole body. It’s obvious that great tzadikkim [revered Rabbis] buried hundreds of years ago do not have viable organs that can be used [laugh] at the time of resurrection. The G-d that will resurrect the dead is the same God that made them originally. He’ll know how to do it again. A tahara [ritually washing of the corpse before burial] that’s improper that allows for the saving of a human life, becomes most proper.

The moment of death, or inditia of death, is really a modern sha’aleh, a modern issue. Once upon a time, there was no such question. A person died when there was cardiopulmonary death. The heart stopped, the breathing stopped, the Chevra Kadisha came in with a feather, held a feather to the nose, if the feather didn’t waft in the breeze, the man was dead.

Now, we have the ability –because of the success of technology, not of medicine, really, but medical technology – namely, the development of the efficient ventilator or respirator, as people so refer to it. It is now possible to maintain the heart by providing oxygen through the ventilator, even though the brain no longer controls the breathing mechanism. It’s a little crude to present you with this imagery, but we have no trouble decapitating an individual, placing the head on the side, and maintaining the rest of the body with viable organs. Using the ventilator, we’ll keep the heart beating, we’ll keep the lungs functioning, we’ll keep the kidneys viable. Obviously, it’s not a pleasant thought; I like to think that the nurses will know how to take the man’s temperature (but that’s something that they don’t do). But in effect that’s what brain-stem death is.

Now, the new definition of death known as brain death – – or more accurately, “brain-stem death” – – is really not a new definition at all. If you read carefully the commentary of Rashi on the Gemara Yuma, Daf Peh Hay, page 85 in that folio, the language of Rashi is “Im hu shochev k’mes” – “if he is lying there as if he is dead” which means no motion, no response to stimuli which essentially is the protocol for determining brain-stem death before the final test which is known as the apnea test , or the test to determine whether he can breathe autonomically or not. Rashi was aware that first you determine that the person looks like he is dead (meaning there is no brain activity), and then you determine for sure that he is dead by checking the nostril. You examine the ‘chotem’[nostril], and then you refer to the verse in the Bible “Vayipach b’apo nishmas ruach chayim” – – “and God breathed into his nostrils the life”, breath. And hence, we know that respiratory death is the final inditia of death. The man was dead a long time before that. It’s not this determination that declares him dead.

This determination is that he had died at some time previously. And therefore, those who misread this text – -and especially….. I don’t know if our audience is familiar with the authority of one of the great arbiters of Jewish law, the Chacham Tzvi. The Chacham Tzvi is cited by many as saying (as he does say) that “life depends upon the heart”, and therefore as long as the heart is beating, they claim (regardless of whether it be by natural or artificial means), the man should be declared alive. Well, if you read the Chacham Tzvi it’s a lengthy responsa, and I venture to say that there is hardly anyone who cites that responsa who ever read through the responsum from beginning to end), there he says clearly.. unfortunately so.., this was before he understood the circulatory system, before Harvey’s picture of circulation was well known, and here’s what the Chacham Tzvi says: “Since the heart warms the air before it goes to the lungs, therefore the heart is part of the respiratory mechanism. And since death is determined by respiratory death, therefore the heart has to stop beating because the man is still breathing through his heart.” The fact that he had this confused notion of human anatomy and physiology, that the function of the heart was to warm the air before it gets to the lungs, this should be adequate reason for people not to cite the Chacham Tzvi in this issue. Instead, they pick out that one line that says “life depends upon the heart….and if the heart is beating, the man is alive.” What he meant to say was, if the lungs are functioning, the man is alive. Somehow, he confused the heart function with the function of the lungs, and had them both in the respiratory system instead of having the heart as a separate circulatory system organ, and the lungs as a respiratory function.

I think a little note from Biology 101 is in order.

No one dies because the heart stops. As you well know there’s CPR: quick, he died, the heart stopped, and get it to go again. That is not ‘tchiyat ha’maysim’; that is not resurrection of the dead. It means he didn’t die. The fact that the heart stops doesn’t mean he died. If the heart stops long enough so that oxygen doesn’t reach the brain, that’s when he dies. That’s when you can’t resurrect him anymore. So, in truth, there never was any definition of death other than the death of those cells of the brain that control respiration. For until those cells die, a person can be kept alive using standard CPR, pacemakers, etc, etc. But once the heart has stopped long enough for anoxia to set into the brain, that’s when the heart dies. The heart dies, the lungs die, the legs die, the hands die; that’s when the individual is dead. So the true definition of death at all times – – today, and when God made man- – was brain-stem death. Death occurs when the brain-stem dies.

Before that time, it was possible to keep a person alive. Unfortunately, people don’t teach it that way even in Biology (except for Yeshiva College where we make that point very clearly). This is, I think, a simple biological fact that people must understand.

When we want to convince someone that the brain is dead, who is not happy with the clinical symptoms which are the protocol for determining brain death, the so-called Harvard criteria or President’s Commission criteria, what do we do? We inject a little radioisotope — safe, doesn’t cause any difficulty, there’s an IV going in anyway, and we bring in a Geiger counter, and you take a picture, so called, and you show that no blood is reaching the brain. Every intelligent individual knows that if you cut off the circulation, then the organ dies. That is unfortunately a proof that has to be used in Pediatrics brain-stem death where a patient can be kept on the machine, on the ventilator, for months and months. An adult who had brain-stem death, maybe keep him going another 6 or 7 days, and then the heart will stop anyway. In Pediatrics, not so. You have to convince parents that, unfortunately, there’s nothing much we can do and that the individual, that the child should be buried. Then, we just do what’s known as a nuclear scan, just inject a little radioisotope and take a picture; and you realize that the blood isn’t getting up into the brain area. It’s called a “hole in the head syndrome.” You see a hole in the head instead of seeing the circulatory system being outlined over there.

This is a result…it’s again.. a layman must understand, the fact that the brain swells. If you bang your knee and the knee swells, you understand that an injury causes swelling. When a fellow goes through the windshield, the brain hits up against the skull, can’t go anyplace, and therefore begins to swell. That’s why sometimes emergency care requires cutting a hole in the skull to reduce the pressure. But if the pressure isn’t reduced soon enough, then the back pressure – – the pressure in the skull – – is greater than the person’s blood pressure. So, if his blood pressure is 120, and the pressure in the skull is 130, no blood will get up into the skull area, into the brain. That’s where death occurs.

Some have questioned the concept of brain-stem death because they heard it as ‘brain death’. That’s why the proper term is brain-stem death. The Halacha focuses on the ability of the brain to cause motion. Hence, Rashi’s comment: ‘shochev k’mes’, or the ability to allow for respiration to occur; that’s the brain we’re talking about. It’s a debater’s technique to say, “Well, there’s a hypothalamus there that also controls emotion and body temperature, and that may not be dead.” We’re not interested in knowing the anatomy of everything that’s in the skull. The Halacha focuses on the respiratory brain. That’s why the proper term is brain-stem death; the stem is where the center for breathing is. And consequently, the fact that there would be..….and this again is a debater’s technique….well, you’re not sure that there is no blood flow; there may be some blood flow. There may very well be some blood flow not detected by a nuclear scan, may not detect some of the finer blood vessels. But those blood vessels do not provide oxygen that can keep the brain alive.

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