Rabbi Dr. Moshe Tendler
If I can sum up the published and verbal opinions of my great father-in-law z”l, Rabbi Moshe Feinstein, he held halacha l’maaseh. A neighbor of mine who was a Chabadnik, needed a lung transplant, actually at a time when they couldn’t do lung transplants so they had to do a heart-lung transplant because they knew how to connect the heart but they didn’t know how to cut the lungs and reconnect it. She had a heart lung transplant in Pittsburgh, after this whole thing about Lubavitcher Rebbe, z”l, who sent her to the Rav Moshe and Rav Moshe approved the heart-lung transplant, declaring the donor dead. Rabbi Feinstein wouldn’t allow that kind of rationalization that the donor could be killed in order to save the life of a Jewish patient. The opinion of Rabbi Feinstein is recorded in the Igros Moshe, there was a teshuva, a responsa that he wrote to me, that didn’t concern organ donation, it concerned when can you stop the ventilator once a patient is declared brainstem dead. And there is no issue of organ donation there; the issue was simply can you remove the ventilator? And I said of course, once you can show that he’s not breathing independently then you remove the ventilator. Here we didn’t have another motivation to save another human life, just to bury this one.
Strangely enough, one of the opponents to brainstem death determination had the lack of integrity to make a statement in print that Rabbi Feinstein’s son, my brother-in-law, Rav Dovid Feinstein shli”ta, had said that his father never approved the brainstem death. That went around the Jewish world and what was missing was the little integrity of someone calling Rav Dovid to ask, is it so? No one did, as at least a person did not, and kept on lecturing and publishing in print. Finally, I called my brother-in-law and said what’s going on here? And he said you know how many times we discussed this with our father, there’s no issue, he’s printed. And he wrote a letter to the opposition, which was delivered by hand, didn’t change the following lecture at a conference, the same repetition of a canard of this lie, until Rav Dovid wrote a second letter, where he stated, “my father said a person is dead if his brain doesn’t allow him to breath autonomically, even if the heart is breathing (underlined).” That quieted down the rumor, but never received an apology or retraction from those people who spread the rumor. There’s where halacha is debased by lack of integrity. Behind all halachic decision is the absolute integrity of the decisor. Once that integrity is questioned, then the halacha is denigrated in the process.
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 breathe 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 breathe, 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, pupilary 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 sleep over 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.
The first opposition came about when the statement was made Rabbi Feinstein never wrote such a teshuva, that it was printed by me in the Igros Moshe. So I responded to that, whoever asked the question, by sending him the handwritten teshuva as Rabbi Feinstein wrote all his teshuvot on this lined paper, so you have his handwriting, no one else could do so. And then the second issue came about when someone with a, in an unconscionable way, declared that Rabbi Feinstein’s son had denied that his father ever had approved the brainstem death. So Rav Dovid Feinstein shli”ta wrote a letter, which was delivered by hand to the one that started that rumor without much success because the rumor was repeated. Finally, Rav Dovid wrote a second letter, in which there he said “I heard from my father the person who is brainstem dead is dead even though the heart is beating”. That seemed to quiet down the opposition finally. And here, possibly, is just this is the picture of the lamb that was born after the sheep was decapitated.
Rabbi Feinstein received a request for clarification whether organ donation is a mitzvah from Rabbi Weiss z”l when he was Rav in Manchester. Rabbi Weiss then became the head of the Beis Hatzedek in Jerusalem. And Rav Weiss received an answer, so I was at that time invited to Manchester to give a graduation address and I delivered it by hand and Rabbi Feinstein wrote that it’s found in Igros Moshe the second chelek of Yoreh Deah, the very last response to Rabbi Weiss, in which he says organ donation, not discussing braindeath, but organ donation per se is a great mitzvah and should be done. To which Rabbi Weiss wrote a response, which I delivered by hand back to Rabbi Feinstein, saying you realize families suffer great anguish over the thought of a loved one being mutilated and halacha is a broad principle, an umbrella principle, halacha does not require you to suffer anguish in performing a mitzvah. This is Rabbi Weiss’s response, therefore if you say it’s a mitzvah to give an organ, to allow organ donation, but the family will suffer anguish. Money you’re supposed to spend to do a mitzvah, but not anguish. Only two mitzvahs require you to suffer, that’s circumcision, milah, and Yom Kippur. To which Rabbi Feinstein answered, also published in that responsa, indeed you are correct that halacha does not require you to suffer anguish to perform a mitzvah, but don’t you realize that the mitzvah is not to feel any anguish but you save a human life. That’s the main mitzvah, he’s saying. The mitzvah says don’t you be anguished, you’re saving a human life and nothing can give you greater joy than that.
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