Author: Waldenberg, Rabbi Eliezer Yehuda
Publication: ReponsumTzitz Eliezer 13:91
Summary: Abraham S. Abraham inquires with Rabbi Eliezer Waldenberg regarding the permissibility of a kidney transplantation from a deceased Jewish patient donor. Despite the noted variance of modern opinions on the issue, all consider it prohibited to precipitate the death of a donor or to operate or even to prepare a donor for that operation prior to his verified death. Since a kidney must be removed within 30 minutes from the death of a patient, i.e. from cessation of blood and Oxygen circulation to the kidneys, an exact determination of the time of donor death is critically important. Abraham notes that Rabbi Baruch Rabinovich permits transplantation preparations of a donor patient if entirely reliant on artificial support for respiration and blood circulation, such that the donor may be disconnected from artificial support and allowed to die in a moment of readiness for removal and reception of the transplant. Abraham requests from RabbiWaldenberg clarification regarding the permissibility of (1) removal of organs from Jewish corpses and of (2) extending the life of an artificially-supported donor in order to save the life of a donee.
RabbiWaldenberg responds that halakhic authorities maintain unanimously there is no mitzvah to donate and advise not to donate, since donation results in failure to fulfill several mitzvahs and commission of a few transgressions relating to the preparation of the corpse for burial. A corpse has no obligation to save a life. Rather, upon death, the obligation is to return the body in its entirety to the place from which it was taken (the ground). Transplantation obstructs that course, even if the transplanted organ eventually ends up buried with the corpse of the donee. RabbiWaldenberg cites a Moroccan authority of the prior generation to support the prohibition of such donations, since it is prohibited to benefit from a corpse. More significantly in his opinion, if the transplantation procedure in practice precedes the definite death of the donor and precipitates his death, then the procedure involves murder. Regarding the second issue, RabbiWaldenberg quotes the opinion of Rabbi Moshe Feinstein that extending the life of the donor is prohibited when severe pain results. RabbiWaldenberg extends the prohibition to a “gossess”, who presumably might still experience severe pain unbeknownst to doctors.
Observation: Elsewhere RabbiWaldenberg (article 332) notes that the Midrash Rabah on the Book of Ruth serves as an early source suggesting burial as prerequisite for transmigration of the soul.
Tier: Not critically important
Critical Flaws in Article: The cited Morroccan halakhic authority entertains notions that transplantations might leave donors missing their vital organs at the time of resurrection. Similarly, Rabbi Waldenberg suggests that as transmigration of the soul occurs upon death, by divine ordinance so too the body in its completeness (rather than in parts) shall return to the Earth from where it came. Arguably, decisions on issues with such grave implications for the medical community should not be informed by supernatural or metaphysical speculations if beyond the scope of practical Jewish law. While classical Jewish legal sources do support a prohibition on deriving benefit from a corpse, it would help to cite a more authoritative source suggesting this reason for such a prohibition. Rabbi Waldenberg compares a law in the Mishnah Torah limiting the activities of a goleh to his city of refuge with the Torah law to bury a corpse to suggest the prohibition of alternative uses of the corpse or its parts. It deserves mention the cases are not necessarily as analogous as Rabbi Waldenberg assumes. It is reasonable to interpret this law and the relevant Mishnah in tractate Makot in a way that the goleh is not to leave the city of refuge because he loses immunity from certain reprisals outside the city. Nonetheless, the goleh technically has no prohibition and commits no transgression in leaving.
|22.||Prohibition of Murder
Author: Nevenzahl, Rabbi Avigdor
Publication: ASSIA Book, Vol. V, page 259
Summary: The Babylonian Talmud tractate Sanhedrin (78A) cites a Beraita in which ten individuals batter a victim with ten batteries until his death. The majority opinion holds that the ten are exempt from liability for murder, whereas Rabbi Yehudah ben Batira in the dissent holds the last batterer liable, since he assumedly directly causes the death. The Talmud recounts that Rava limits the scope of disagreement to the case of a victim who enters the status of a gossess in consequence of battery. (Accordingly, the majority opinion would liken the victim to a “treifah”, whereas Rabbi Yehudah would liken him to a gossess.) The Tosafot raise difficulty with an implication of this interpretation that individuals who batter a victim into the state of a gossess are exempt from liability for murder. Accordingly, since the gossess eventually in all likelihood will die from the battery injuries, the battery instead should constitute a murder. Rabbi Nevenzahl holds greater issue with the assumption that causing the victim to become a gossess should constitute a murder, since ultimately the gossess might not die. RabbiNevenzahl explains the assumed intentions of Tosafot that the batterer is liable for murder even if the victim only dies later so long as no other subsequent factor causes the death. Liability results from the cause of action, the moment of the battery, which immediately reduces the potential length of life of the victim. Each batterer in principle would have liability for each respective reduction in life caused from each action of battery if not for the death caused from the last action of battery. Accordingly, the majority also exempts from murder the last batterer, since his battery of the already injured individual fails to a cause loss of “all life”, an exegetical requirement of Babylonian Talmud tractate Sanhedrin.
Babylonian Talmud tractate Baba Kama (26B) recounts that Rabah considers the case of a baby dropped from a rooftop and slain while in descent analogous to the dispute in the Beraita in Sanhedrin between the majority and Rabbi Yehudah ben Batira. Accordingly, the majority opinion there would exempt the slayer, since the dropper causes a reduction in the lifespan of the baby, regarded as a gossess for its descent irrespective of its momentary bodily integrity, such that the later slayer does not cause loss of “all life”. RabbiNevenzahl explains Torah liability for a goring domesticated animal to result similarly from reduction in life expectancy. RabbiNevenzahl similarly explains the possible reasoning of Rabah in the case of a vessel dropped from a rooftop and smashed in its descent that exempts the smasher (Baba Kama, 17B and 26B). If it remains uncertain whether the vessel ultimately ever would smash upon impact with the ground (the second interpretation in Rashi), since the vessel in descent nevertheless risks losing its remaining lifespan upon impact, that potential loss immediately affects the value of the vessel, and the later smasher is exempt due to uncertainty as to whether the initial thrower caused the vessel to lose its value. If the outcome of the initial drop is definite (the first interpretation in Rashi, challenged by the Ramban), Rabah presumably would hold the dropper liable not as a matter of indirect causation but rather for affecting an immediate loss in the value of the vessel in descent. RabbiNevenzhal also relates to the presumable opinion of Rava and the explanation of Tosafot on the matter.
Observation: The article never relates directly to practical issues of organ donation or high-risk medical procedures. Even so, the sources as analyzed carry important practical implications. RabbiNevenzahl’s interpretations of the opinions of Rabah in Baba Kama involving the wider extrapolations from the majority opinion of the Beraita in Sanhedrin perhaps implies that doctors, when performing medical procedures on patients whose lifespans already remain undeterminable yet potentially limited, lack liability for murder in Jewish law for resultant fatalities (certainly so if their lifespans were known to be limited). His understanding of the exegetical requirement that murder involve loss of “all life” likewise reduces the number of cases that fatalities resulting from medical procedures on already severely injured or terminally ill patients would be regarded as murder in Jewish law. RabbiNevenzahl’s rejection of the difficulty of Tosafot on Sanhedrin suggests that medical procedures that render a patient into the state of a gossess should not be regarded as murder in Jewish law, since the patient ultimately might die from a different cause, e.g. the preexistent condition that warranted the procedures.
Critical Flaws in Article: If RabbiNevenzahl intended for his scholarship to bear relevance on contemporary medical practice, he should have explicated those implications directly.
Author: Goldberg, Rabbi ZalmanNechemia
Publication: The First International Colloquium on Medicine, Ethics, & Halacha
Summary: Rabbi Goldberg explains three approaches intended to resolve the apparent contradiction between permission to remove an impediment to death and the obligation to save a life. The first considers extension of a life only obligatory when it fulfills a useful purpose. For a terminal patient unconscious or in a vegetative state or suffering so severely that death is preferable to life, extension of life arguably serves no purpose. The second distinguishes between saving a life with natural provision of basic needs versus the interruption of external impediments to death without withholding basic necessities. The third distinguishes between obligatory normal and discretionary special treatments. If all three approaches apply to the effect that treatment is non-obligatory, treatment may be withheld. Some leading rabbis permit withholding treatment even if only the third approach applies to the effect that treatment is non-obligatory. Final decisions must involve detailed investigation and full consultation between doctors, rabbis, and the family, which ought not possess independent decision making in the matter. Each case ought to be determined on the basis of its own merits.
Observation: For a thorough analysis of Rabbi Goldberg’s distinction between a gossess and a treifah, see article 43.
Tier: Critically important for those who read only English.
Critical Flaw in Article: The proposed approach that saving a life is obligatory only when it serves a useful purpose neglects to elaborate on any objective criteria for the determination of useful purposes. It thereby leaves room for determinations based on subjective, arbitrary, and peripheral considerations that might trivialize the value of life and the obligation to save it. In any case, Rabbi Goldberg ultimately suggests more common reliance on the approach that considers only routine care obligatory.
Author: Ilani, Rabbi Yaacov
Publication: ASSIA Book, Vol. 7, pages 207-208
Summary: Babylonian Talmud tractate Sanhedrin 78A assumes consensus in a judgment to exempt one who kills a treifah. Rishonim lack consensus on how treifah status applies to humans. Rashi and others assume the status applies to humans similarly as to animals. The Rambam qualifies the status in humans to include a unique presumption of integrity, i.e. a person does not become a treifah unless known with certainty otherwise, and that doctors must determine that an injury has no treatment and that from it the person will die unless a different cause kills him sooner.
Aharonim lack consensus on whether the Rambam means doctors with their determination of mortal injury affect the status change or whether two conditions apply: that the person must have the mortal injury of a treifah and that doctors must attest they cannot treat the condition. Rabbi Feinstein interprets the Rambam to require both, and in the case of terminal illness without one of 18 recognized signs of mortal injury of a treifah, one cannot become a treifah. Others attempt to learn in the Rambam that any incurable mortal internal injury or terminal illness can affect the status change to treifah. Some attempt to learn so from the Achiezer. Dr. Ilani brings proofs that the Achiezer holds the Rambam requires both, i.e. that a human treifah must have one of the 18 recognized signs of mortal injury.
Observation: The article provides an overview of some important sources on the applicability of treifah status to humans.
|41.||Opinion of the Netziv from Velozhin on Brain-stem Death
Author: Weiner, Rabbi Yaakov
Publication: ASSIA Book, Vol. 7, page 166
Summary: In its deliberation on whether a gossess whose heart palpitates transmits impurity (as a corpse), SifreiBamidbar concludes that (heart) palpitation indicates no death, and a gossess does not impart impurity until the moment of death. The Netziv thereupon comments that his life-force (soul) has departed, and the Sifrei is not relating to a decapitation, as those that transmit impurity in truth even palpitate, as corpses no longer alive. So it was established for our rabbis that one who dies by means of man, his life-force with difficulty departs even after he verifiably has died. Rather, the Sifrei relates to one who dies on his own, and as long as a gossess has vital activity (i.e. cardiac) and lacks movement, it is a clear sign that he is not yet dead.
According to the thought process of the Netziv, regarding one who dies on his own, i.e. a natural death, even if in a state analogous to decapitation, if nonetheless there remains cardiac activity, it would be prohibited to disconnect artificial respiratory support or to remove his heart for transplantation. It even would be obligatory to desecrate the Sabbath to save his life for an hour. It is possible that even one injured in an accident whose health deteriorates until he reaches the state of brain stem death, he still might be considered as one who died on his own, since a status analogous to decapitation can be considered as in a natural process as well. If so, no source or support from the rabbinical discourse on decapitation relates sufficiently to the issue of brain stem death to justify organ donations or disconnection of artificial respiratory support as long as brain stem death had not resulted directly by means of the accident.
Observation: The cited Sifrei is of the utmost relevance in the determination of death in Jewish law. Considered in isolation, the Sifrei explicitly regards (heart) palpitation as a determinant that a person has not died. It implies that any person with continued cardiac activity, irrespective of brain activity, may be regarded as alive, such that any cessation of the artificial respiratory support necessary to effectuate their cardiac activity may be regarded a cause of death. The Netziv, who unfortunately is unique in having learned this highly relevant early source, merely proposes one way to reconcile a seeming contradiction with the Mishnah tractate Ohelot (1:6), which regards decapitated person as imparting impurity (i.e. dead) despite continued spasms. His method involves a somewhat arbitrary and ambiguous distinction between death alone versus in the hands of man. One could resolve the seeming contradiction in reasonable alternative ways, such as qualification of the Mishnah that a decapitated person [only after the cessation of cardiac palpitation] imparts impurity (i.e. is dead), despite continued muscle spasms.
Critical Flaws in Article: Rabbi Yaakov Weiner could have considered the Sifrei on its own to support the provision of artificial support to all patients with continued cardiac activity. Reliance on the interpretation of the Netziv alone limits the applicability of the Sifrei in the matter.
Author: Goldberg, Rabbi ZalmanNechemia
Publication: The First International Colloquium on Medicine, Ethics, & Halacha
Summary: Rabbi Goldberg distinguishes between a gossess and a treifah. Whereas directly causing the death of a gossess is judged as murder, killing a treifah, though prohibited, is not murder. Whereas a gossess is bodily intact yet debilitated from an apparently terminal illness, a treifah is not regarded as complete or intact due to some fatal bodily deficiency, e.g. a ruptured vital organ, even if for an interim he might function normally. Saving a life supersedes nearly all Torah prohibitions. Though the Torah explicitly prohibits abstention from this paramount mitzvah to save a life, abstention is neither murder nor a punishable transgression, and lifesaving is non-obligatory when it endangers the life of the lifesaver. Rabbi Goldberg speculates regarding the reason for the absolute prohibition on murder, even of those whose lives appear less valuable, in distinction from the lesser prohibition on abstention from lifesaving. To resolve the seeming contradiction in that Jewish law obligates and even permits transgression of most prohibitions to save lives in some cases yet (in the customary opinion of the Rema) permits withholding lifesaving treatment from a gossess,
Rabbi Goldberg recounts three proposed approaches: lifesaving is obligatory when (1) the life itself serves a useful purpose or when lifesaving involves a (2) natural or (3) routine method of care. Rabbi Goldberg notes the inherent difficulty or variability in determining the distinction between routine and non-routine care. For instance, whereas dialysis might constitute routine care for a chronic kidney disease patient, dialysis might be non-routine for a cancer patient who resultantly experiences kidney failure. Rabbi Goldberg proposes the permissibility of withholding treatment if in all three approaches lifesaving is non-obligatory. He also suggests permissibility of withholding treatment even if in only the third approach lifesaving is non-obligatory, given a consensus of Torah scholars on the approach. Even so, he recommends determinations based on consideration of the circumstances unique to each case. Although family opinions should not affect the applicability of Jewish law, the family might possess information relevant for practical consideration, bearing in mind the risk that family members sometimes have an ulterior preference for decease. Rabbi Goldberg recommends that an individual informed in both Jewish law and medicine consult with the family before bringing the matter before rabbinical authorities.
Observation: The remainder of this article has a precise English translation (article 26). Although this article elaborates on the opinions of Rabbi Goldberg compared to his English article on the subject (article 26), the only essential information presented in this article yet omitted from his English article concerns his distinction between a gossess and treifah.
Tier: Critically important
Critical Flaws in Article: The first proposed approach that saving a life is obligatory only when it serves a useful purpose neglects to elaborate on any objective criteria for the determination of those useful purposes. It thereby leaves room for determinations based on subjective, arbitrary, and peripheral considerations that might trivialize the value of life and the obligation to save it. In any case, Rabbi Goldberg ultimately suggests more common reliance on the approach that considers only routine care obligatory.
|204.||Organ Transplantation in China (in Hebrew)
Author: Lavee, Yaakov (Jay Lavee)
HOD Comment: Article in Hebrew (PDF)
Summary: For decades the People’s Republic of China has facilitated transplantations using organs from prisoners with death sentences. These transplantations, while in gross violation of medical ethics rules and international agreements, have given rise to a lucrative commercial industry in China. A review of the testimonies of a prisoner and a Chinese doctor who fled to the West describes the atrocious method of organ removals from those sentenced to capital punishments, in some cases before their deaths. For years the Chinese authorities has denied the existence of this process, but in the wake of international diplomatic pressure, they recently have admitted so.
Distress of patients awaiting organ transplantations in Israel, due to the scarcity of donations there, leads many to seek donations in China. Funding to travel to China by means of various insurers in Israel affords a seal of approval to the legality for the matter from the state. The article encourages members of Israeli society to cease the harmful practice and to devote greater humanitarian and economic efforts to increase organ donations from the deceased in Israel.
Observation: More information regarding organ harvesting from prisoners in the People’s Republic of China and the resulting international organ market has disseminated publicly in the years since publication of this article. At the time of this publication, a Chinese state campaign against the Falun Gong resulted in the detention of nearly one million practitioners and an estimated 10,000 annual transplantation operations therefrom. More recently, the interment of more than one million ethnic Uyghur Muslims in the northwestern Xinjiang Autonomous Region has increased availability of organs at market. There, the Chinese government has arranged for a noticeably transparent and navigable process for foreigners seeking organs, even including signs at the Kashgar Airport for a human organ priority lane. The China Organ Transplant Development Foundation has entered agreements to distribute organs for transplantations to the more tourist-friendly cities of Macau and Hong Kong. The Chinese government also recently announced international organ exportations as part of its Belt and Road Initiative. For future reference, the China Organ Harvest Research Center based in New York publishes comprehensive, reliable, periodic reports on these matters.
Critical Flaws in Article: Although the article alleges Chinese practices violate international agreements or treaties, it fails to enumerate precisely which ones. For the record, China is not a party to the Rome Statute. Some allege Chinese practices in relation to Falun Gong practitioners, Tibetans, and Uyghur Muslims violate the Convention on the Prevention and Punishment of the Crime of Genocide, which China has ratified, as well as customary international law. It deserves mention that Chinese authorities constructed and implement policies with diligence that they appear in conformity with Chinese domestic law and Chinese international legal obligations. Prisoners are incarcerated individually on criminal charges and undergo an ostensibly judicious criminal procedure or, as with many Uyghur Muslim detainees, are interned by state security agencies upon evidence of engagement in extremist, separatist, or terrorist activities. The Chinese government requires prisoners to sign agreements to provide their organs for transplantation voluntarily, though prisoners technically might enter these agreements under duress.
While the article obviously assumes the moral reprehensibility of Chinese practices, it neglects to consider their implications in Jewish law. The matter warrants consideration, especially since the opinions of some rabbinical authorities of great repute in Israel, namely Rav Shlomo ZalmanAuerbach, suggest the permissibility of reception of organs transplantations abroad if in accordance with relevant foreign laws and medical standards there.
|211.||RabbiElyashiv’s Position on Israeli Brain Death Law
Author: Steinberg, Rabbi Dr. Avraham
Publisher: Schlessinger Institute
Summary: Professor Avraham Steinberg in the company of an observant legislator consulted with Rabbi Yosef Shalom Elyashiv regarding a legislative proposal to define brain-respiratory death as the legal determinant of death. The proposal would allow doctors to request permission from family to remove organs from a member, which occurred in practice prior to the proposed legislation. Even if the family would refuse to donate the organs, doctors would cease artificial support to the non-respiring, brain-dead patient in any case, since he would be regarded as legally dead.
RabbiElyashiv responded apprehensively to the proposal, as in his opinion it is prohibited to cease artificial respiratory support to a non-respiring, brain-dead patient so long as cardiac activity continues. Professor Steinberg then suggested inclusion of a provision that, in case the family rejects brain-respiratory death as determinant of death, the patient could retain artificial respiratory support and could receive relevant treatment for the remainder of his artificial respiration until cessation of cardiac activity. RabbiElyashiv allegedly approved the effort to amend the legislative proposal to include the provision and instructed the legislator to reject the proposal but to support any amended proposal with the provision.
Observation: The article contains one critically important, succinct statement paraphrasing the opinion of RabbiElyashiv regarding the determinant of death in Jewish law: RabbiElyashiv considers it prohibited to cease artificial respiratory support to a non-respiring, brain-dead patient so long as cardiac activity continues.
Critical Flaws in Article: The reasoning of RabbiElyashiv on the issue deserves far more thorough consideration. For instance, this source taken alone fails to convey whether RabbiElyashiv considers cessation of artificial respiratory support to a non-respiring, brain-dead patient to constitute murder in Jewish law. If RabbiElyashiv held of a prohibition to cease artificial support, it might be inconsistent that he would approve the amended proposal, since by default such legislation inevitably would result in the prohibited cessation of artificial support in cases that the family neglected to object. The consultation perhaps inappropriately combines consideration of important issues in Jewish law with matters of political strategy in the legislative draft process. Ulterior motives, e.g. to lend a semblance of credibility and legitimacy to the observant legislator or to Israeli public institutions by means of association such a renowned Jewish legal authority, might underlie these kinds of publicized consultations with RabbiElyashiv, whose hospitality with guests sometimes gets misinterpreted as indiscriminate approval in Jewish law of their propositions.
|332.||Title: Determining Death and Delay of Burial
Author: Waldenberg, Rabbi Eliezer Yehuda
Publication: ReponsumTzitz Eliezer 9:46
Year: undated (but before 1974)
Summary: RabbiWaldenberg cites the Babylonian Talmud tractate Yuma (85A) as support that Tannaim unanimously considered respiration a determinant of life and only disagreed whether cardiac activity, checked independently from respiration, also determines so. Maimonides, the Tur, and ShulchanAruch accordingly regard respiration as a determinant. RabbiWaldenberg speculates that Maimonides, who requires waiting briefly after an apparent departure of life for certitude of death, neglects to prescribe so with precision due to variability in the period, depending on the circumstances. Later attempts to define this length have varied. RabbiWaldenberg cites the ChachamTzvi to suggest that respiration serves as an indication of life only because cardiac activity, as the ultimate cause and determinant of life, depends on respiration.
RabbiWaldenberg cites the HatamSofer and several more sources that advocate vehemently for continued observance of the customary waiting period (with refrain from prohibited contact with the body) for certitude of death, despite shifts in medical or non-Jewish legal determinations of life. One responsa cites the Midrash Rabah on Rut as an important source for the notion that as long as a corpse has not been placed (in its burial place) so its life-force has not been placed either, interpreted to mean that transmigration of the soul depends on burial. RabbiWaldenberg accordingly presumes a soul must endure tremendous suffering and indignity if the burial of its corpse deviates from the procedures traditionally prescribed in Jewish law.
Observation: The very same sources RabbiWaldenberg cites to suggest cardiac activity as ultimate cause and determinant of life and respiration merely as a secondary indication (e.g., the ChachamTzvi) perhaps better justify disregard of the customary waiting period after cessation of respiration, since modern medical procedures enable the determination of cardiac activity more reliably than methods traditional available.
Tier: Not critically important
Critical Flaw in Article: Some sources cited clearly possess inaccurate or antiquated understandings of material facts of human physiology (e.g., the ChachamTzvi regarding the distinction between “warm” and “cool” airs, which might better be understood as a distinction in oxygenation of blood).
|356.||Title: Living Will: Agudath Israel of America (Agudah)
Summary: Agudath Israel of America presents a “Halachic Living Will”. It provides standard-form provisions that, if contained in a legal New York living will, would limit the agency of healthcare proxies and post-mortem caregivers to provide treatment in accordance with Jewish law and the opinions of certain designated Jewish legal authorities. The document also encourages and advises regarding a card in case of emergencies that would inform an emergency healthcare provider regarding the arrangements.
Observation: Appointment of a healthcare agent knowledgeable of all relevant Jewish legal considerations is an important consideration in the state of New York. There when a principal’s wishes are unknown or cannot be determined, a healthcare agent may act in accordance with the principal’s best interests, which might be presumed in ways contrary to Jewish law. In New York, an agent has no authority regarding decisions in artificial hydration and nutrition unless the adult’s wishes are known or can be ascertained with reasonable diligence. Also, there a healthcare proxy has no authority to make decisions concerning life-sustaining treatments unless the adult’s wishes are known. Trust provisions should vary depending on relevant state law.
Tier: Practically Important