Rabbi Dr. Avraham Steinberg
[22 minutes 13 seconds]
Rabbi Avraham Steinberg
Shaare Zedek Hospital
Rabbi Doctor Avraham Steinberg is a world- renowned pediatric neurologist who has worked for the past 30 years at Shaare Zedek Hospital in Jerusalem, and is a prolific writer on halacha and medical issues. In 1999, Rabbi Doctor Steinberg was awarded the prestigious Israel Prize by the President of Israel for his completion and publication of his magnum opus “The Encyclopedia of Medicine and Halacha.” Rabbi Doctor Steinberg is a proponent of organ donation.
“It is very important to understand the issues ahead of time, to know the different opinions, to make up one’s mind what his position will be if needed, who should he consult with, and therefore the Halachic Organ Donor Society and similar societies are of great importance to distribute the knowledge so that everyone can understand it ahead of time, when he can really make up his mind, decide who his advisers will be, and when the time comes make the right decision.
There is sanctity to the body of a human being, and all parts of it have to be buried. And routinely, no desecration of the body should be done at any event if there is no real need for it, there should be no benefit derived from parts of the dead body. But all of these are overridden by the fact that we are saving life. Pikuach nefesh – saving of life – is overriding all the mitzvot of the Torah including desecrating the Shabbat, eating on Yom Kippur, eating chometz on Pesach- all this is allowed in order to save lives. Certainly, notions of the whole body, of the sanctity of the body, which are of lesser degree from halachic point of view as compared with Shabbat, Yom Kippur, or chometz on Pesach, can be overridden and should be overridden in order to save life.
The only issue from a halachic point of view is whether the person is still alive or whether he is indeed dead, because killing someone is not allowed even for the purpose of saving life. Therefore, if the person is still alive, he cannot become an organ donor because this means to kill him in order to save someone else. However, if he is dead by whatever definition halachically is acceptable he should become an organ donor because he should save lives by his donation of organs.
There is currently a debate whether brainstem death and cessation of respiration in an irreversible fashion is the halachic definition of death. Rav Moshe Feinstein, and the Chief Rabbinate of Israel and Rav Nehemiah Goldberg and other prominent Rabbis hold that halachically, indeed, this is the definition of death and therefore, in this state, one should be an organ donor. HaRav Shlomo Auerbach told me specifically, I have written his words, and he checked it and agreed for it to be published, and his position clearly was such the heart per se is not necessarily a sign of life and death. In other words, a person can be defined as dead even though his heart is still functioning. What is important to Rabbi Auerbach was brain function.
In Israel, one can sign an organ donor card in two ways. Either to sign that he agrees to one or more of the organs to be donated after his death, or to add to it that at a time when a decision should be made a competent rabbi or a specific rabbi should be consulted on the matter. Certainly, if this is the way one signs a donor card, everyone can do it, and should do it, because he can appoint a rabbi that he relies on and trusts, and this rabbi will know exactly what to do when the time comes.
If one accepts the position of Rav Moshe Feinstein, the Chief Rabbinate, and other rabbis of similar opinion, that brain death and irreversible cessation of respiration is indeed the halachic definition of death one can sign a donor card provided he knows that the physicians would follow the instructions of how to diagnose medically and in reliable fashion brain death.
Halacha strongly supports organ donation from a dead person in order to save someone else’s life. Pikuach nefesh is a very important mitzvah and commandment according to the Torah and here is a real situation of pikuach nefesh. Therefore, all the prohibitions of desecrating the dead, deriving benefit from the dead, delaying burial and not burying parts of the dead are all overridden by the strong urge to save life.
The Chief Rabbinate of Israel was asked by the Ministry of Health to give the opinion, the halachic opinion concerning how transplantation, when it became a possibility in Israel. The Chief Rabbinate appointed a special committee of rabbis and physicians that studied the matter both from the medical and the halachic points of view and came to the conclusion unanimously that cessation of breathing, in an irreversible fashion that can be verified objectively, is the moment of death and hence a person can become an organ donor even though his heart is still beating. These deliberations took a while; the rabbis studied it very carefully, and got witnesses, experts from the medical field. They included also rabbis outside of the Rabbinate: Rav Zalman Nechemia Goldberg, who was the son-in- law of Rav Shlomo Zalman Auerbach. And included were the two Chief Rabbis at the time, Rav Shapiro and Rav Eliyahu, and Rav Yisraeli who was considered one of the major poskim in Israel, as well as Rabbi Lau who became subsequently the Chief Rabbi of Israel, Rav Sha’ar Yashuv Cohen who subsequently became chief rabbi of Haifa; Rav Shloosh who became Chief Rabbi of Netanya. And as I said (they) unanimously agreed to this position based on the sugya [section] in Yuma which clearly states that it all depends on breathing, based on the verse in the Bible, and on all the halachic sources that are mentioned in this paragraph in the Talmud. There is a debate there whether it is breathing or heart beating, but the ruling goes by Rambam and by the Shulchan Aruch is that we go according to breathing, and that’s a clear ruling which was accepted throughout generations.
The Chief Rabbinate’s decision was that total, irreversible cessation of breathing is the moment of death for all purposes. This can be established by brain death criteria so that one can be sure that the entire brain including the brainstem is dead and non- functioning, and will never resume functioning, and therefore there will never be independent spontaneous breathing, and therefore the person is dead. This decision was primarily based on the sugya in Yuma from which it turns out that the only criterion to define the moment of death — the cessation of breathing – (and) the Talmud is based on the verse in the Bible. And although there is a dissenting opinion in the Talmud, if we look into the versions of this dissenting opinion in all the Rishonim on Yuma, we find the dissenting opinion is ta’bur , the navel which clearly indicates another way of checking breathing.
One way of checking breathing is through the nostrils and another way is by watching the diaphragm moving up and down which moves the navel. Only Rashi and the M’eiri have the “gersa” of the dissenting opinion, but one should take into account that the understanding of the function of the heart in those days was as the ancients understood: That the heart is pumping air and not blood, and actually the lungs are only a cooling mechanism of the heart, and the major respiratory function is through the heart. In other words, even according to the understanding that the dissenting opinion looks into the heart, it is another way to look into respiration. So that actually the sugya tells us that all opinions go according to respiration; it is only where you can look to check better the functioning respiration.
Be it as it may, all three Rishonim, the psak is according to the opinion in the Talmud that you check at the nostril, and that’s it; you don’t check the heart, neither for respiration as the old way of understanding, nor for heartbeat as we understand it; and therefore the Chief Rabbinate’s opinion, based on this sugya, assumed that if you can make a clear medical decision that the person is not breathing and it is an irreversible situation, this is the Talmudic definition of death.
The Chief Rabbinate also mentions a responsum by the Chatam Sofer, which is a complicated responsum, and can be understood in two ways. An understanding of the Chief Rabbinate was clearly that the Chatam Sofer also went according to the understanding that breathing is the important sign although occasionally you need verification by other signs such as the heart.
The Chief Rabbinate also mentions a responsum from Rav Moshe Feinstein, and as we well know today, there is some misunderstanding in the position of Rav Feinstein because there are three different responsa on the matter of death and transplant. Out of two, it seems as if Rav Moshe was opposed to brain death, but one tshuva clearly points to the fact that breathing is the only criterion. And the Chief Rabbinate’s understanding even then was that this was Rav Feinstein’s opinion which was verified both by Rav Feinstein himself later in the years when he was asked about his seeming contradicting opinion, and he clarified that the heart does not make any, is not of any importance in defining the moment of death according to his opinion.
So was also the opinion of his son Rav Dovid Feinstein, that understood that his father relied only on breathing, and so is the understanding of his son-in-law Rav Moshe Tendler.
The Chief Rabbinate’s decision obviously was an independent decision; this was their understanding of the definition of death. And they also relied on Rav Moshe Feinstein’s understanding according to their viewpoint.
Subsequently, the Ministry of Health in Israel was happy to accept the landmark decision of the Chief Rabbinate that brain death is the moment of death. However, they refused to accept some qualifications that the Chief Rabbinate asked to add to this definition which was aimed at verifying that there are no mistakes, that it’s really an irreversible diagnosis and that the physicians can be relied upon that they are doing the right thing.
It took 17 years for the Health Ministry to accept all these qualifications of the Chief Rabbinate and currently it is going to be published as the new norm of the medical definition of brain death according to the Ministry of Health, which will be according to the requirements of the Chief Rabbinate. And obviously the halachic perspective of it is by the Chief Rabbinate that did accept brain death and the cessation of respiration as the moment of death.
I had the opportunity, and I was very fortunate to have a lot of time, to discuss with Rabbi Auerbach his position on the issue of brain death. Initially, he felt that because currently a pregnant woman who dies and is diagnosed as brain dead on a respirator can be delivered and a fetus that will come out of her will survive. This seemed to him contradictory to a Talmudic discussion in Tractate Erchim where the Talmud says specifically that a dying woman, when she is pregnant, her fetus always dies before her. And since here we see that the fetus can survive after her, it must mean that she wasn’t dead, because if she were dead, how could he stay alive? And after a long debate regarding various aspects of this particular sugya, the question was, came down into, the following: Is there a real difference between a natural death of a pregnant woman in the Talmudic times where, gradually, she is dying, her blood pressure is dropping, her pulse is dropping, her oxygen is going down; obviously the fetus, who is more vulnerable than an adult person, will not survive –as opposed to a current situation when brain death is diagnosed when the pregnant woman is on a respirator –with medications that keep her blood pressure and her pulse in a normal way. In this particular situation, the fetus receives all that he needs, so that even though we may regard the mother as dead, he may survive because he is receiving what he needs in order to survive.
In order to verify that indeed there is such a difference, Rav Auerbach proposed an experiment, a medical experiment on a pregnant sheep where the mother sheep was decapitated in a very humanistic and painless way with anesthesia, but in a way that brought her into the halachic definition of being dead based on a mishna in Ohalot which says that if he is decapitated he is considered to be dead although he is still moving and he is not still completely.
So, if this mother pregnant sheep is decapitated, she is by all definitions a dead mother. Yet, we were able to deliver her calf who survived (and I think today he is still alive today somewhere, but certainly was alive for a good few years) despite the fact that he came out of a mother that was dead by all criteria. Therefore, Rabbi Auerbach accepted that a person can be dead by brainstem definition although a pregnant woman currently can be delivered and have a vital fetus.
However, he equated the situation of brain death to a decapitation situation, where the whole brain is verified as being dead. So that he did not think that it is enough that there is an irreversible cessation of breathing, and of those functions of the brain only, but rather you need to verify that each and every cell in that brain is dead. This brought him to a new definition of a whole brain dead person which he called it“Safek met, safek goses” – – “doubtfully dead, doubtfully goses” – – a situation where you cannot remove organs until you verify that he is indeed dead. However, as I mentioned earlier according to the Chief Rabbinate and the other rabbis and, probably, according to Rav Feinstein, it is enough to verify that there is an irreversible, complete cessation of breathing to call this person dead in respect to the fact whether the heart is beating or not.
Physiologically, the heart has its own pacemaker and if it is surrounded by appropriate nutrition and ways to get rid of poisonous material, it can function without a body. I think every student of biology or medicine knows and probably did an experiment on a frog where one takes out the heart of a frog from the body of a frog and puts it in saline, and sees that it continues to beat although it is not connected to any parts of the body because it has an inner pacemaker that functions on its own. So that the fact that the heart is beating does not necessarily mean that the whole individual is still alive.
In 1986, very fine confirmatory tests of objectivity were somewhat limited, and we used the BERA which is a Brainstem Auditory Evoked Response, meaning a device that checks the flow of electrocurrency from the ear to the brainstem, and if the machine does not detect any waves in the brainstem, it shows that the brainstem is dead and not functioning. This however, when it works is a very good device, a very good confirmatory machine, but there are situations where it cannot work, such as if the person was deaf during his lifetime it is a useless way of checking whether his brainstem is functioning. Also, if it is a road accident and the area of the ear is broken or full of debris then it cannot be applied.
Today, we have other devices which can help us to confirm the fact that brain death is indeed irreversible. Best of these device, currently, is the transcranial doppler which checks for blood flow to the brain, and it is obvious that if, in a period of time, there is no blood flow to the brain because, the brain is dead, it cannot survive without blood flow. In good hands, transcranial doppler can verify over time that there is no blood flow to the brain.