Rabbi Gedaliah Rabinowitz
Rosh Kollel, Jerusalem
Rabinowitz: The conclusion that I have drawn from the analysis that we have done of many sugyot in Shas, in the Talmud, among them, the Gemura in Yuma and the Mishna Ohalos, but other sources as well, have brought us to the conclusion that brain stem death is considered halachic death.
If I was asked such a question, the question being, a person is in a situation where there’s brain stem death and he’s lingering on,
Interviewer: “What do you mean, his hearts continuing to beat because he’s still on a ventilator?”
Rabinowitz: His heart continues to beat because he’s still on a ventilator. And it’s not a question of a half hour or an hour or so where you can say, I’ll wait and then do the transplants. And if I’ll wait till there’s total cessation of heartbeat, these organs, you’re not going to be able to use these organs to save a life and I was asked a question in a community where I, if I were the rabbi in that community and I am the one that has to make that decision, I would tell these people that you’re allowed to do this. If I was part of a larger community were there were many rabbis on the poskim, I would say please go to somebody else. Where I’m confronted with a situation where I have to make a decision, that would be my decision.
Interviewer: “So you view Pikuach Nefesh as overriding the nivul hamet?”
Rabinowitz: Well it’s not that I view it that way, I think the side, the Binyan Zion for some reason held otherwise, poskim, the Nodeh B’Yehuda as the leading posek, believe that way. I was investigating; I wanted to find out what it was. I didn’t do it myself, I was working with a prominent physician and he helped me, I couldn’t have done it on my own.
Interviewer: “What was his name?”
Rabinowitz: Mordechai Konigsberg, I mentioned in Matu Yatzeh and he, we worked together, he’s a Talmid Chacham as well, we put in countless hours of work, both the time that he had to spend to teach me the anatomy and the physiology involved and the time that we had to spend together going through all the sugyos in the Gemura and we raised questions and we went up and back, up and back, and we came to that conclusion. We haven’t found any source, any halachic source that runs counter to our conclusion. I’m still waiting today from all these years, this is how many years already, thirty-some-odd years, I’m waiting today somebody should come along and prove us wrong. I haven’t seen anybody with a convincing argument yet.
Interviewer: “Where did you publish the article and in what year was it published?”
Rabinowitz: It was published in Tishreh Tov Shin Lamed Alef, which is September 1970, in a journal put out by the Rabinical Coouncil of America, it’s called Hadaron.
Interviewer: “Do you have any first hand, and only asking for first hand… did you have any first hand conversations with any gedolei ha’Torah who are in this issue, from Rav Moshe Feinstein to Rav Shlomo Zalman Orbach to anyone about brain stem death or organ donation?”
Rabinowitz: The only one that I had an occasion to discuss it with was Zam Rechemye Goldberg, who is one of the biggest poskim today. He happens to also accept brain steam death…
Interviewer: “As halachic death…”
Rabinowitz: …as halachic death. I didn’t go to discuss the issue with him, a dear friend of mine who is a neurologist, had certain questions about certain developments, recent developments, and how to approach investigations of certain kinds of tests for brain stem death. So I told him, I said I don’t want to take it upon myself, so I took him to Zam Rechemye Goldberg and he accepted whatever he described to him, accepted the guidelines and that was what he did. He took it for granted that this is so.
Interviewer: “Was that in your presence?”
Rabinowitz: Yes, we discussed it together.
Interviewer: “So he accepts the Gemura, he understands the numerous possibilities…?”
Rabinowitz: Yes so he was on the committee of Rabbinot Hashit…when was that…
Rabinowitz: I don’t recall when it was, but he was on the committee and I think he was one of the main deciders.
Rabinowitz: As I recall, the Gemura Yodea is discussing a case where somebody, something fell upon a person and it’s a question if he’s considered alive or not, do we think he’s alive or do we not think he’s alive. If there’s any chance that he’s alive, then we desecrate the Shabbos to save his life. If we are sure that he’s not alive, then we’re under conclusion that we have to draw, then we might as well postpone it until after Shabbos. You’re not saving a life; it’s a question of just bringing him to burial, that can wait until after Shabbos.
What do we check for, that is the issue that the Gemura deals with. What do we check for? The Gemura Yudea makes a distinction between if you are working from, depends, what end are you finding, there are you starting from the head down or are you working from the feet up? If you’re working from the head down, there’s no question that when you get to the nostrils and you see that he’s breathing, he’s alive. If he is not breathing, then we can assume that he’s not alive.
Interviewer: “including that he looks dead and he’s not moving.”
Rabinowitz: Yea. In other words, if you see no movement, then it’s cessation of breath. On the other hand, if you are checking him, if you find, if what you uncover, the feet, that part of the body, you keep on moving and clearing away the debris, there we run into two versions of the text of the Gemura. There is one version, which is found in our text of the Gemura, which is Rashi’s version, you work your way up to the heart. And when you work your way up to the heart, there is one opinion that says, when you get to the heart, there you can tell if they’re heartbeat or not. And there’s another one that says you can’t rely upon it, you still have to continue up to his head to see if he’s breathing or not.
Interviewer: “The other opinion says if you come to the heart and you do not find a heartbeat…”
Rabinowitz: So you continue. You don’t rely… one opinion says you can rely upon that, the other one says, look, you may not notice heartbeat, so therefore you have to continue to see if he’s breathing or not. That’s one opinion. There’s another opinion that is found in the text of the Rif, and other poskim, another version, not an opinion. That version states, it’s not when you get to the heart, when you get to the abdomen, then you check to see if he’s alive or not. In one opinion you can rely upon that, in another opinion you cannot rely upon that.
What does it mean, the abdomen? We came to the conclusion then that it means the diaphragm, because the diaphragm is a major respiratory muscle, so again we’re referring to breathing. According to this opinion, heartbeat is not even mentioned whatsoever, according to this version, is not mentioned whatsoever in the Gemura. So it’s one opinion, according to one version, heartbeat. According to the other opinion, and according to another version, there’s no mention of heartbeat altogether. That’s what, in conclusion, we arrived at in our analysis of the Gemura.
Interviewer: “And so in your analysis of the Gemura, your conclusion was that if a person can’t breathe, he’s dead. If he looks dead, doesn’t move, can’t breathe, he’s dead and nothing to do with a heartbeat.
Rabinowitz: I would not say, totally, that we ignore heartbeat. The Gemara there… what the Gemura is referring to there is when I’m confronted with a situation where I have to remove debris and investigate if a person is alive or not, so I have to just check and see. I rely upon breathing. That’s clearly so in the Gemura. If I do find heartbeat, there’s no question that I will still consider him alive. Because if there’s heartbeat, why should I assume that he’s not – and there’s a question, he may still be alive. What the Gemura is saying there, is can I rely upon the fact if there’s a lack of heartbeat, can I assume that he’s dead. But the Gemura is not saying, the Gemura is no way saying, that if I do find a heartbeat, this was, look, until 30, 40 or 50 years ago, nobody would say that if somebody is breathing that he was dead. There’s no reason to think that way. I mean, when his heart beats, you assume the person to be alive, why not?
Interviewer: “But in the case today now when you have a ventilator…”
Rabinowitz: That’s something else. We are talking about naturally speaking, even though this was a known fact, even hundreds of years ago, that the heart can continue to beat after the person dies, you can take the heart out of the body and it will continue to beat. It’s a pump that can work… it works by itself, it’s autonomous, for a certain amount of time, it can continue to beat. It’s not absolute proof of life, but from a practical standpoint, if I see a heartbeat I assume the person is alive, unless they have enough evidence to the contrary.
Interviewer: “such as?”
Rabinowitz: And that brings in the whole concept of brain death. If I can prove that there’s brain stem death, that there’s no functioning in the brain, then I can, then I believe, and those that follow this opinion, can say, I can ignore heartbeat. But as long as I can’t prove brain death, there’s no question that I’m concerned about the heartbeat. Nobody is discarding the issue of heartbeat.
Interviewer: “But where do you see that in the Halachic sources. Halacha doesn’t mention brain. Maybe in Ohalot, but not in Yuma.
Rabinowitz: The Gemura in Ohalot, see, the Gemura deals with cases, the Gemura is not dealing with… the Gemura doesn’t set up a theoretical thing, ‘how am I going to define life or death?’. The Gemura is dealing with a practical question: what happens when you find it says “nafla alav mapolet” (??), if debris or if a wall caved in on the top of, or fell on a person. Well it’s Shabbos, obviously I have to do everything to try to save his life, as long as I have any chance, any remote possibility, that the person’s alive, I have to do everything to save his life. That is what the Gemura is dealing with. If I will see a heartbeat, there’s no question that I have to be concerned that maybe he’s alive. I don’t think anybody even today, if you find somebody lying there and his heart is beating, even if you don’t see him breathing, you’re not going to declare him dead. I don’t think anyone will say that.
Interviewer: “So now apply it to a person in a hospital whose brain stem is dead who is being ventilated… you see a heartbeat.”
Rabinowitz: That’s something else. I cannot prove, all I can say is that the Gemura Yuma that is being referred to, is a question, is it proof to the contrary but it doesn’t prove brain death. I don’t think it runs counter to brain death, but you cannot prove brain death from there. The source, the main source, for the concept of brain death, is the Mishnan Ohalos. The Mishnan Ohalos states clearly that if you find a human being, or an animal, whose head has been chopped off, automatically, that human or animal is considered dead for all purposes, even though we see movement in the body. And the example they give, it’s like if you chop off the head of a lizard, the tail of the lizard will still continue to wag, will still move around. Well, this is anytime anybody has seen a slaughtering of a chicken, you chop off the head of a chicken, the chicken will still run after the head after the head is chopped off, but nobody is going to say the chicken is alive, the chicken is dead. That’s what the Mishna says there.
Rabinowitz: Well, anytime anybody has seen a slaughtering of a chicken, you chop off the head of a chicken, the chicken will still run after the head after the head is chopped off, but nobody is going to say the chicken is alive, the chicken is dead. That’s what the Mishna says there. But that itself is still not enough evidence. The Rambam explains the Mishna, and the Rambam states in his explanation of the Mishna, that when… what do I consider a sign of life. If the power of movement comes from a central source, the words he uses and the translation that we have of the perush in the Mishna,”shoresh baschola achas”, it comes from a central route or source, that’s where the power of the body comes from. And he’s using that to explain the Mishna that says, therefore if you see movement in the body after the head has been chopped off, this movement is irrelevant. That being the case, we are convinced there is no other way to explain it, except to say that the source of movement in the body is the brain, whatever other movements, or local movements, or what you call simple reflexes, they’re not a sign of life. That is our basic source, and when you have brain stem death, so it is the source of movement in the body is dead, is not functioning anymore. What we are really saying is that brain stem death, is equivalent to chopping off the head, and just like chopping off the head, there’s no question everybody agrees that’s death, likewise, brain stem death is also death
Interviewer: “Some people say that if you read the Mishna literally the Mishna says decapitation, and you’re making a jump, you’re saying it’s analogous to decapitation, but really it’s not decapitation. So the question is halachically what right do we have to take the Mishna is very literal and say well, our case today is ki’ilu
As I said, and I’ll repeat what I’ve said – if you take the Mishna by itself, you may have a case. However, the Rambam explains the Mishna, and the Rambam states clearly, explicitly, he says, because the power of movement is not coming from a central source
“Some people think that the movement of the newt’s tail, le ta’ah, is sporatic and spasmic
Rabinowitz: Yea, so
Interviewer: “but the heartbeat is a rhythm and they feel that somehow this kind of movement is different than a spasmatic movement. But what you’re saying, basically, is that it doesn’t make a difference because neither one is coming from the head. If it’s not coming from the head, it’s not coming from the brain, they’re both considered just movements on their own, reflexes…”
Rabinowitz: They are autonomous movements.
Interviewer: “In your article, that I didn’t finish reading, but I read most of it yesterday, you mention that the Rambam seems to contradict himself where talks to the Morah Nevuchim and says that really the heart is the center of movement in the body, and then you went on to say that somehow somewhere, someone says that the heart is the center of movement and that pushes it forward to the brain, and then the brain sends it out to the rest of the body. But I don’t remember the details, and if you don’t remember the details then I don’t want to…”
Rabinowitz: I more or less do remember that. I ran into a problem: The Rambam in Morah Nevuchim was, if I recall correctly, influenced by Greek philosophy and Greek science. The Rambam’s Morah Nevuchim and in the history of Greek medicine, there was a controversy between Apocrates and Gaelin, if I recall correctly. I stand to be corrected. Apocrates believed, the source of life, the source of movement in the body is in the heart. Gaelin believe that the source of life, or the source of movement in the body, is in the brain. The Rambam there is not dealing with halacha. He’s dealing with, I don’t know what it is he’s dealing with, but he’s not dealing with halachic issue. The Rambam in perush HaMishnah is explaining a Mishna which is a halachic statement, and he’s explaining it so. What he states in Morah Nevuchim seems to run counter to what he says in Ohalos, and if I recall I found a source where you can say that the Rambam some way or another has somehow reconciled the two, by stating that the heart governs the brain, and the brain governs life and the movement in the body. That’s just to solve a problem in how the Rambam himself reconciled these two statements, but the Morah Nevuchim is not a halachic statement. Moreover, it’s not relevant as a halachic issue. Even if the heart governs the brain, but the brain is not functioning, there still is no life in the body. It’s like taking the heart outside and the heart’s beat.
Interviewer: There are some people who say that the Gemara in Yuma says that the cessation of breathing is death but only because they are assuming that the heart has also stopped beating as well. And therefore, you need the heart to stop beating for you to determine death.
Rabinowitz: I agree with that! I have no reason to disagree with that. Would anybody in his right mind, 100 years ago say otherwise? 1000 years ago? 2000 years ago? You see the heart’s breathing – you would say that the person is dead? Nobody in his right mind would say this. We’re dealing here with a novel situation. Because it’s a novel situation, then we have to go back to the sources and see what are the criteria? The Chatam Sofer says clearly, he gives three criteria for death: no movement in the body, cessation of breath and cessation of heartbeat. He’s 100% right, why would anybody say to the contrary? Now that we have a situation that we can artificially ventilate a person and as a result his heart continues to beat, that’s a totally… that’s a situation and that never existed in the past, it’s not relevant.
Interviewer: Some rabbis that mentioned that they think the reason why the Mishnah Ohalot, which the Rav is focusing heavily on to support brainstem death in the Rambam, some people think that the reason why the Mishna Ohalot says that a person who has his head decapitated is dead is because when you cut off a person’s head, the blood pours out and the heart can’t beat with empty chambers so the heart stops beating, so for them, again, even the Misnha ohalot must by definition include cessation of heartbeat.
Rabinowitz: This opinion that you’ve stated that the reason decapitation is a sign of death is because when you decapitate, the blood has to rush out from the body, is a very interesting theory, but the Rambam says to the contrary.
Interviewer: Is it not possible that maybe the statements in the Gemura and Yuma don’t come from Ma’amad Har Sinai but maybe from Hazal’s own understanding of medicine at the time?
Rabinowitz: I’ll put it this way, I recently wrote an article and it hasn’t been published yet. I wrote an article, on the issue of Hazal’s knowledge of science… they did know science, they didn’t know science… there’s been a big controversy about it in the last few years. I don’t think it’s relevant to our issue that we’re dealing with. If you believe that Hazal knew science, and re-encouraged with the science of today, and I find, at least my understanding of Halacha fits in well with science and I have no problem. If I find that if I some reason believe that Hazal didn’t know science, and science today is more correct than it was in times of Hazal, then again I have to follow science. So in either case, I have no problem with regard to brainstem death. I believe that they did understand it. It’s not a question of whether they understood it or not. They’re conclusions are not, it’s not my job to be a mind reader; it’s my job to try to find out what the Halocha says. If I find that the Halocha is compatible with what science says in today’s world than why even raise issues that are not relevant to this issue. They may be relevant to other questions…