Rabbi Dr. Moshe Tendler
Rabbi Tendler: The key final test in the Harvard criteria protocol, or as I prefer, the President’s commission brainstem protocol since I was active in testifying for that commission. The key is apnea. Once you check the function of all the cranial nerves, there is no pupillary response, there’s no ocular motor response, so you put ice water in the ear, there’s no gag reflex; everything has been checked. The person is not declared dead until then you check whether he can breath in anyway, a little bit, sometimes, on his own. That’s known as the apnea test. That’s performed by stopping the ventilator without hurting the patient. Now that is done by saturating the patient with a 100% oxygen for 20 minutes and then turning off the ventilator, the pump, while leaving the cannula, leaving the little pipe, still leaking oxygen into the body. You could do it to a healthy patient, the pearl divers learn that technique, they don’t use scuba outfits, they just, on land, before they go under, they breath through oxygen then they can stay under for 10, 12 minutes. This is what’s done, if during that period of time the carbon dioxide rises to what’s known as 60 millimeter mercury, which is the amount that simulates the brain to begin breathing, if the patient does not, then the patient is dead. So that there is not a doubt as to whether, well maybe there’s enough blood to let the patient breath, well that’s the final test. If he should fail of the other tests, meaning he shouldn’t win any other tests and any of the other cranial nerve tests, that’s really what they are, show that there’s still activity, then they don’t even do the apnea test. Apnea test is only after everything has failed and he’s shochet k’mes, as Rashi says. Then, instead of using a feather, we use an apnea test.
Now the modern ventilators have what’s known as a sigh meter – SIGH – so they measure anytime the patient takes an independent breath. Really by the time you do a brainstem death determination, the staff knows pretty well that the patient’s not breathing, because the sigh meter does not indicate any attempt to breathe independently or autonomically. The apnea test is a kind of final, final test. The test has been done already by looking at the meter.
This question you ask, which is really the old question, how do you differentiate a brain-dead patient from a comatose patient? When the issue was presented to my great father-in-law, Rav Moshe Feinstein z”l, at that time nobody had a clear definition. The Harvard criteria were published; the doctors were not convinced they could differentiate between a brain-dead and a comatose patience. And that’s why it took Rabbi Feinstein two years before he ruled on this. During this period of time I took him to see, at Downstate Medical College in Kings County, what a brainstem patient looks like. And I remember what seemed to impress him most, as definitive, the fact that it forced a patient who is shochet k’mes, wouldn’t respond to any kind of stimuli, the iris, pupillary responses etc., but the fact that he had no gag response. They could put a tongue depressor down his throat and the patient would lie there, as something a person can experience knowing, I couldn’t do that, I couldn’t, you have to gag. That somehow convinced him more than all the other tests, the patient must be dead, no one would allow it to happen and not respond if he were still alive. But Rabbi Feinstein became very sophisticated in this matter. We came down from Albert Einstein College of Medicine, we had our heads of department, surgeons, kidney transplant people, who came to the house, one of them slept over – I would mention his name but I don’t know if he wants his name on there – actually they spoke long into the night and Rabbi Feinstein invited him to sleepover and continue in the morning. Then it took two years before Rabbi Feinstein now had it clear in his mind a comatose patient is alive, a PDS patient is alive, a Lou Gehrig patient is alive – even though he cant move – brainstem dead patient is dead.
As I’m treating episode in this brainstem death halachic analysis, it’s already some seven years ago or so, or more. Rabbi Shlomo Zalman Orbach z”l raised a question based upon a Talmudic statement in the Talmud tractate Becholos, daf ches, page 8 it says there that when a pregnant woman dies, the fetus dies first; the fetus being weaker and therefore the poison of the angel of death kills the fetus first. Well, I’ve been in constant correspondence with him and I’ve kept him up to date when an issue arose in America of a woman that was declared brainstem dead and then kept “viable” until she could give birth by cesarean section some 56 days later. So he questioned right away, he said “well that means that you declared the woman dead and the baby was alive, that’s against the Talmud. The Talmud says the baby dies first. The answer we gave was well no, that’s because the Talmud didn’t have the woman on a ventilator. On a ventilator, the baby doesn’t have to die, just like the heart doesn’t die and the lungs don’t die, the baby will stay alive. He didn’t accept that easily. So we went ahead and we did an experiment. We meaning, Rav Avraham Steinberg, Rav Shatan in Eretz Yisrael, whether the people who actually got the work done. They bought a pregnant sheep in the last stages of gestation and they inserted a ventilator, then decapitated the sheep. Now decapitation is absolute. The Mishna says if someone is decapitated, he’s dead, dead, dead, dead, no one can argue on that point. So here was a sheep who was dead, dead, dead. And they kept the sheep on a ventilator for an additional four hours or so. Could have kept him for four days, but they had to pay the doctors, as it is it came to some $7,000-$8,000, and then delivered a live lamb. Rabbi Shlomo Zalman Orbach z”l (?? 8:21) was presented with the video, which we have here in school, and I show it every year to the students in the ethics class or the fourth year rabbanus. He says okay, he withdraws his objection; he knows know that indeed a ventilated patient is different, but we never got him to come out with a clear statement. I have a letter from him that says he has no objection to doing organ transplants on brainstem death in America because he has confidence in the doctors in America, but not in Israel and so on. But over the course of several years of people bantering him from all sides, the last that I got from him is, “please, leave me out of the controversy, I need peace, I don’t want to be involved it in anymore”. So he finally decided to leave the field of battle because of the pressures on him from various sides, although Rabbi Shlomo Zalman Orbach was a very courageous, great possik and one, by the way, who was able to understand modern technology.
Interviewer: Many years ago when the Rosh Hashiva first wrote about this, he accepted brainstem death really based on two sources: one was the Gemara in Yuma, which says we define death by respiration, and one was the Mishna in Ohalot where the Rosh Hashiva had put forth a theory…
Rav Tendler: No, the third one actually – the definitive one was the third one… Gemara in Chulin, on daf chaf bes (22) where it says that Elie Ha’Kohen, fell off his chair and, nishbar mifrako, he broke his neck and he was dead, he was metamei ohel right away. If anyone knows anything about anything, then certainly his heart was still beating at that time. Of course it was beating with minutes, with seconds, but nevertheless we’re talking about now definitive halacha, and since halacha considered the severance, the connection between the head and the body, even though the head was attached, as tantamount to death, I coined the term “physiological decapitation”, for Elie Ha’Kohen was physiologically decapitated, he wasn’t anatomically decapitated. And basically what we are doing in determining brainstem death is that physiological decapitation. Subtitle: on the Shulchan Oruch of Rav Yosef Karo, he has a subtitle in discussing when a person is dead. The subtitle reads, “Matai hu met?” “When is a man dead? “af al pi she hu chai” in other words, the word “chai”, when living, means, what a layman would call living. But halacha says he’s dead, and when halacha says he’s dead, that means the Cohen can’t go in, he’s dead, dead. He means that as a prohibition of letting him lie there overnight without burial, we don’t allow a person, hala nas hames unless there’s a reason for it. There’s no reason for it, then there’s a prohibition about not burying the dead. And therefore it’s not only that you’re determining that someone is dead, but you’re also ruling that someone now is imposing on us the mitzvah of burying him, but that’s also a great mitzvah. The saving of life is the greatest mitzvah and the burial of the dead may be the second greatest.
The human mind rationalizes, I’ve heard the rationalization of why we can take an organ and not give an organ. We can give an organ because halacha says we can give an organ, but we can take an organ though because well anyway the organ will be wasted. If we don’t take it they’ll throw it into the garbage. That’s nonsense.
If you believe that you’re killing somebody and you send the doctor to harvest that organ, the fact that there’s someone else who wants to kill him doesn’t in anyway mitigate the sin of you’re acting as someone who is sending out a murderer to take somebody’s life. Secondly, in reality, and very often, because of logistics, the Jewish recipient is the only one that matches that liver or that heart and there is no one else on the list that it matches. Or for logistic reasons, we can’t get it to that person because he’s too far away, etc. etc. So that in fact, in many cases, if not most, there is a direct relationship between the donor and recipient and the donor is made into a donor only because of the recipient, so it’s not that they would take out the organ anyway. No, they don’t take organs out and leave them in the refrigerator; they take organs out when the recipient is prepped surgically to receive the organ. Therefore, this is a kind of a rationalization that questions the integrity of the people who make that rationalization. There’s no way if you don’t give you should not get. That’s absolute. And unfortunately, it’s become that way. I don’t know that people are aware that Israel has not provided it’s share of organs to the international organ bank. No Israeli can get an organ transplant any place in the world except America. All the other countries have bumped the Israelis, they claim that the Israeli traffic deaths per capita are horrendous therefore they should be adequate donors and Israelis, if you know the term, live on overdraft, meaning they don’t have that much money in the bank but they write checks and the bank honors it. Well there’s an organ bank and Israel tried to run it on an overdraft system, where they just took organs and they didn’t contribute enough and therefore they were bumped. And that’s what would happen, God Forbid, worldwide, if anyone got the notion that an Orthodox Jew doesn’t consider the person dead and therefore will not allow an Orthodox Jew to be a donor, but allow the Orthodox Jew to be a recipient, the end result will be that Jews will be bumped from the computer list. That’s where you endanger Jewish lives.