(Jewish) Contemporary Views from Jewish Rabbis
III. CONTEMPORARY VIEWS
The following is a cataloging of the major schools of thought among contemporary poskim and rabanim on the brain death issue and some of the recent events connected with this question.
1. As noted, Rabbi Dr. Moshe Tendler has been the most vigorous advocate for the halachic acceptability of brain death criteria. In his capacity as chairman of the RCA's Biomedical Ethics Committee, Rabbi Tendler spearheaded the preparation of a health-care proxy form that, among other innovations, would authorize the removal of vital organs from a respirator dependent, brain death patient for transplantation purposes. Although the form was approved by the RCA's central administration, its provisions on brain death were opposed by a majority of the RCA's own Vaad Halacha (Rabbis Rivkin, Schachter, Wagner and Willig).20
2. The Israeli Chief Rabbinate Council, in an order dated Cheshvan 5747, has also approved the utilization of "brain death" criteria in authorizing Hadassah Hospital to perform heart transplants but on a somewhat different theory than Rabbi Tendler. Positing that cessation of independent respiration was the only criterion of death (based on Yoma 85 but somewhat inexplicably also citing Chatam Sofer, Y.D. no. 338), the Rabbinate ruled that brain death was confirmatory of irreversible cessation of respiration. Theoretically, this would allow for a standard far less exacting than clinical brain death, perhaps nothing more than a failure of an apnea test. Indeed, Dr. Steinberg, the principal medical consultant to the Rabbinate, dismissed any requirement of nuclide scanning since destruction of the brain's respiratory center may be conclusively verified without such a test.21 Since defining "death" exclusively in terms of inability to spontaneously respire would lead to the absurdity that even a fully conscious, functioning polio patient in an iron lung is dead, a subsequent communication from R. Shaul Yisraeli, a member of the Chief Rabbinate Council, qualified the Rabbinate's ruling by imposing, as an additional requirement, that the "patient be like a stone without movement"22 (but apparently maintaining that heartbeat does not qualify as such movement). It is probable, though not certain, that R. Tendler's test of "physiological decapitation" and the Rabbinate's newly formulated test of "respiratory failure coupled with profound nonresponsiveness" amount to the same thing though the Rabbinate has not retracted from its non-insistence on nuclide scanning.
3. Rabbi J. David Bleich, Rosh Kollel at Yeshiva University and author of many papers and a recently published book on the subject, has stated that anything short of total liquefaction (lysis) of the brain cannot constitute the equivalent of decapitation. He further maintains, relying on Rashi in Yoma, the Chatam Sofer, and the Chacham Tzvi, that even total lysis would be insufficient in the presence of cardiac activity but dismissed the matter as being only of theoretical importance since cessation of heartbeat inevitably occurs prior to total lysis. He also asserts that his position is not based on stringency in case of doubt but rather on the certainty that the brain death patient is still alive, a certainty that could be relied upon even to be lenient, e.g., a Cohen may enter a "brain dead" patient's room without violating the prohibition of tumat meit.
4. Rabbi Aaron Soloveitchik, Rosh Yeshiva of Brisk and RIETS, has done slightly further than Rabbi Bleich. Even if the heart has stopped and the patient is no longer breathing, the patients is alive if there is some detectable electrical activity in the brain.23 It has been noted, however, that there is no recorded instance of this phenomenon occurring.
5. Rabbi Hershel Schachter, Rosh Yeshiva and Rosh Kollel of RIETS, has taken a more cautious view. Conceding that the concept of "brain death" may find support in the decisions of R. Moshe, he concludes that such a patient should be in the category of safeik chai, safeik met (doubtful life). While removal of organs would be prohibited as possible murder, one would also have to be stringent in treating the patients as met, e.g., a Cohen would not be allowed to enter the patient's room.24
6. Most contemporary poskim in Eretz Yisroel (other than the Chief Rabbinate) have unequivocally repudiated the concept of death based on neurological or respiratory criteria.25 Of special significance are letters26 signed by R. Shlolmo Zalman Auerbach and R. Yosef Elyashiv, widely acknowledged as the leading poskim in Eretz Yisroel (if not the world), stating that removal of organs from a donor whose heart is beating and whose entire brain including the brain-stem is not functioning at all is prohibited and involves the taking of life. Unfortunately, these very brief communications do not indicate if the psak is based on vadei (certainty) or safeik (doubt) nor do they address what the decision would be in case of total lysis.