YU Medical Ethics Society- Organ Donation: A Matter of Life and Death

YU Medical Ethics Society- Organ Donation: A Matter of Life and Death

THESE NOTES ARE UNOFFICIAL AND UNEDITED. IF THERE ARE ANY MISTAKES, MISQUOTATIONS, OR IDEAS THAT MAKE NO SENSE AT ALL, PLEASE ASSUME THEY ARE MY ERRORS. VIDEO CLIPS AND MP3S OF THE LECTURES SHOULD BE AVAILABLE ON YU TORAH SOMETIME THIS WEEK, I BELIEVE.

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ANYTHING IN RED IS EDITED BY AND THANKS TO LABRAB.

Schedule of the Day
(my notes are divided up by the speeches, so do CTRL+F searches for the ones you are interested in by the person's name)

Opening remarks by Rabbi Dr. Edward Reichman for the topic of ‘Living Organ Donation: At what Risk?’

First, he mentioned that organ donors and recipients are gathered here today. The Yeshiva University Medical Ethics Society is sponsoring this university-wide lecture series. Other topics to come over the year include abortion, etc. (He and the heads of the YU Medical Ethics Society thank all the sponsors.)

This is a topic of tremendous import, an extraordinary program, as evidenced by the fact that registration for today’s conference is over 400 people. There have been tremendous advances in many fields- cloning, treatments for infertility. There’s a story of a scientist who has the audacity to approach God, and says he can do anything, even create man. Oh? How do you go about that? inquires God. Get some dirt, mix in some enzymes, it’ll be great. God says, show me. So the scientist bends down to reach for some dirt, and God says- wait- get your own dirt!

The Torah can approach the most important cutting-edge issues of Torah and science. Yeshiva University today is proud/ privileged to host such wonderful speakers. In fact, the majority of the speakers today are members of the faculty, products of YU, or are affiliated with YU. There is a tradition of Torah umada (science.)

Last night I checked the organ sharing network website to see how many people are awaiting organs. There are 92, 905 people waiting for organs. This morning at 7:00 AM I checked, and there were 92, 903 people waiting for organs. 2 less than before. Why two less? Well, either two people received transplants, or there is the much sadder reality that these two people died while tragically awaiting organs.

To demonstrate how relevant this conference is to us as a whole, I direct you to the Jewish Press. We put an add in the Jewish Press on September 1, and right next to it there are two ads for kidney transplants- and we will be discussing these very important halakhos right now, for the next 4-6 hours.

The time between the harvesting of a heart and its viability is 4-6 hours. Think about that as we sit here for the next 4-6 hours.

(He introduces the various speeches that will be given. They should all be up on the YU website, as scheduled.)

Here’s something to think about- a fascinating Halakhic case. So fascinating that an entire book called Kliyos Ya’azot is published about it and the answer to the question. It speaks of a member of Knesset who needed a kidney transplant- a living-donor transplant. He has 5 sons. One son finds out the father needs the transplant, goes to the hospital to see if he’s a match and finds out that he is. When he returns there stand the four other sons, barring his way to the door. They say that THEY want the right to donate the kidney to their father. Then the b’chor (firstborn) comes and calls his rights into question..they’re all fighting to determine which would be the organ donor. At the end of the day, I’ll give the answer to this statement. [Did he ever answer this?]


Let me introduce the first speaker- Adinah Raskas from St. Louis, a kidney recipient. She will be telling us about her personal experiences as a kidney recipient. Then Dr. Stuart Greenstein will speak, and R’ Willig will round out the session with a discussion of halakhic issues.

Adina Raskas’ speech

Hi.

I’m Adinah Raskas and I’m from St. Louis, Missouri. I’m sure you think I’m an out of towner, but really I’m the in-towner; it’s all of you who are the out-of-towners. Anyway, people always want to know a little bit about the background of the speaker, so here’s my story.

My parents were born in Vienna- a very Yekki home. I began my education in dayschool (the only one there) and by the time I graduated I decided I wanted to go to Israel for college to Hebrew University. I went to my father and said it would only cost one hundred dollars, and that just for transportation! But he wasn’t sending any dollars to Israel when I was at the age of seventeen. Instead I went to college in St. Louis, got married to a boy from Boston, went to Boston University- I was the only pregnant person in the entire university- and then we decided we wanted to move back to St. Louis. We felt it was important to grow up with grandparents and grandchildren. So we decided to live there, had five children; the first two were born in Boston, the rest in St. Louis.

My husband was the director of cancer- research center/ professor at Washington University, until my father went to him and said he would have to sell the family business, the Raskas Dairy, so my husband became the head of the business.

I have an APD- I never got to finish my thesis. It was titled “In Loco Parentis in the Day School Movement.” I feel it is as relevant today as it was then.

I was very involved in the community- president of the day school, lots of history there, very entrenched in St Louis, Missouri.

So now, I know you’re wondering, why am I introducing this program?

I am going to talk about what it’s like to NEED a transplant, how it feels, the quality of life before getting one and afterwards. When my doctor tried to convince me I needed dialysis I couldn’t accept the verdict, said no, did everything so nobody knew I was sick and tried to deny it.

I was teaching, active in the community, but had very low kidney function. You are here to learn from Rabbis, professionals, about halakha, but I am here to tell you my story about the emotions in play here.

The consequences of renal failure are terrible- my legs blow up, my face blows up, my stamina is next to nothing, walking is difficult and walking against the wind is impossible, your color is bad and especially your diet- everything changes. I didn’t want ANYONE to know about my issues- which was virtually impossible; I always felt exposed in the doctor’s office when they called my name. So I complained for virtually two years and now there are privacy measures in place- you’re called by a number to come in.

Anyway, before you even get on a list for any kind of transplants, you have to take a whole lot of medical tests, which take at least 6 months. You have to do them yearly, and there’s very little time left for anything else. It was June 7, 2003 when I got worse- the only people who knew then were my husband and children. I want to tell you that I wouldn’t have made it without him (husband.) I swore my five kids to secrecy; if people approached them and asked them about me, they tried to make up reasons.

Now, I think it’s hard for doctors to understand what life is truly like for the patient- more emotional care would be better. I waited till the last second, for better or for worse, to go on dialysis. I had some small residual kidney function when I started- but it’s hard to convey the experience of dialysis. You’re there 3 times a week, the whole process takes 5 hours each time. For me and most people the trauma of needles going into you- it’s just unbelievable. It’s not the most pleasant experience.

I had to have it in my right hand because they couldn’t find the veins in my left hand…There’s uncertainty about each treatment- will your blood pressure drop? Is the machine not working? If it’s not, then you’ll be delayed 4 hours, and that pushes everyone else off- it’s traumatic.

After treatment ends, you still feel lousy- I tried to think that I was okay, that I was normal, and I managed pretty good, but you’re toxic- and by Sunday you’re really toxic. You know those dinners on Sunday night that people go to for various events? So you don’t want to be sitting there and eating that while you feel so sick.

There’s a very restrictive diet; when it comes to fluids, you can only have 4 cups of a liquid per day, and than includes all the medication you take, liquids, jellos- none of which is easy when you see someone coming down the street carrying a Starbucks coffee and you say, “Oh, that’s what I really want.”

What you’re basically doing is using 3 treatments a week and liquid/ diet control to replace kidneys.

People don’t think about their kidneys, about how they can walk, about anything because it is natural, normal to them. But you need to think about it and realize how it is a gift.

The bracha (blessing) of Asher Yatzar becomes much more meaningful after this.

It was Shabbos Shuva of 2003 when all my problems began. Friday night 2003 and I was in very severe pain, and after Yom Kippur I developed a very high fever; that didn’t deter me from fasting on Yom Kippur or walking to shul, though. Anyway, I had an infection in my kidney, which spread to my bloodstream. That led to the removal of my kidneys and an unplanned removal of parts of my colin- then there were some more immediate surgeries to try to repair the colin, so I was in serious condition with many great complications at the age of sixty.

I was septic, bedridden, too weak even to pick up a Kleenex.

I was completely incapacitated. What saved me were the prayers; my Rabbi (Rabbi Berman) changed my name, there were tefillot being said in the USA and in Israel for me. And I still meet people who recognize me based on my name and say Tehillim for me- just so realize how important it is.

The other thing is about visitors- I had visitors from all over the place, different states; this too is important. I really thought about those people, especially when you’re lying in a bed 24 hours a day, you really have time to think. I used to look at people walking down the street and say to my kids and husband, “Do you think I’ll ever walk like that?” I went from bed to being strong enough to be carried to a chair, then to a wheelchair, then to walk, and I am here today.

On dialysis, trying to recover, you realize that the problems you think you have don’t exist- shul politics, school politics simply don’t matter anymore. LIFE is what matters.

Getting a transplant is unbelievable- I received mine in February about 7 months ago. Someone in the community named Cathy called me and offered me her kidney- I didn’t even know her, but her son and my son (or grandson? Probably grandson) were best friends in dayschool. She saved another person’s life, my life- you can’t even imagine what it feels like to be offered a kidney- it’s the highest form of chesed, kindness, a second chance at life, liberated from diet restrictions….min ha’shamayim (from God.) I’ll have to take medicine forever but it’s SO much better- I hope that others will be encouraged from this story to do the same, to donate.

I call Cathy every week or so to update her on the status of how her kidney is doing- I am so grateful to the global Jewish community who embraced me. I aggressively try to help others who are sick, and there are many who have told me I have helped them or view me as an inspiration, and I treasure that. I hope my story encourages others to be donors.

Dr. Stuart Greenstein’s Speech

(He was introduced; his bio is up at the YU Medical Ethics website, so skipping that part…)

…problems of kidney failure, moral aspect of it. There are two days a year when I get semicha; I’m suddenly a Rabbi- that’s by Tisha B’Av and Yom Kippur when all my patients call me to ask whether they should fast.

Simple things in terms of Halakha- let’s start with kidneys versus livers, because risks are greater by the liver.

Today 25% of all patients who wait for transplants have diabetes. 8% of those patients (maybe? I’m not sure I got this down right) will die waiting for transplants.

There are two options for people suffering from kidney disease.

1. Someone who has kidney failure should stay on dialysis
2. Get a transplant
a. Get a deceased-donor (formerly called a “cadaver” donor)
b. Get a live-donor transplant

Transplantation as a field is not that old. December 25, 1954 is when it first started, on Christmas Day. There were twins, and the doctors actually had to make sure they were identical; they fingerprinted them so down to the fingerprints they were identical.

Now, 50% of all transplants done in the USA are live-donor transplants (the donor is a living person, as opposed to being deceased.)

QUALIFICATIONS FOR BEING A DONOR

• Over 18, because otherwise you have to go through the court system, and a smart court system is not going to give its consent to you
• Should not have diabetes. (This is not absolute, but it is much better to follow.)
• Should not have kidney disease (because the main principle behind live-donor is DNH= DO NO HARM. If the donor has kidney disease, they might need this other kidney themselves at some point.)
• No lung disease- COPD.
• No cardiovascular disease.
• Not markedly overweight because this is, after all, a major operation, again the idea of DO NO HARM
• HIV/ Hepatitis negative
• In the past, the idea was for the person to be a relative/ spouse and have emotional ties. Nowadays, we find that even a solicited donor who is no relation to the recipient is capable of doing this!
• Blood type and cross-match compatible (An A kidney can only go to another A. By the way, I’ve noticed there are more AB bloodtypes in the Chassidic world. A cross-match is where you take blood from the donor and from the recipient, mix it together in a test-tube and see how it reacts. Obviously, if they don’t work together, that’d be bad.)

THINGS TO NOTE

• Federal law bans the sale of organs, but does allow solicited transplants. If I know you’re buying an organ, I will NOT do the transplant, because I don’t want to go to federal prison. You can go to a third-world country to buy organs, but if you do that, remember that you get what you pay for.
• All conversations between the donor and the transplant team and the results of medical testing are kept confidential, even though the donor is not really a patient. Hippa laws which (he laughs) I love to violate, but don’t tell anyone…
• The costs of live-donor evaluation, testing, surgery, are generally paid for by the recipient’s insurance.

EVALUATION

• Complete history and physical examination and psychosocial examination (because this is a major operation. We don’t want you to be a little off, take your kidney and watch you fall apart.)
• Routine lab tests
• Tests to determine compatability
• Tests to confirm two good kidney
• X-rays to determine blood vessels (basically, which kidney to take for the recipient. This has to do with railroad-tracks, whatever I find to be better…)

WHY A LIVING DONOR?

• Better matching/ better results, and the kidney begins working immediately
• The date can be planned, which means there’s better preparation for the recipient- he/she can be in optimal condition (as opposed to a deceased person’s organ, which has to be taken soon thereafter)
• Shorter hospital stay
• Lower dosage of medicine
• Tremendous psychological lift to donor- a “love match/ story” between the donor and recipients. Some say they shouldn’t get to know each other, but I personally believe they (donor and recipient) SHOULD get to know each other. It’s really like a love story.

DISADVANTAGES

• No free lunch (as opposed to YU, which gave us free lunch today)
• Healthy person has a major operation
• There are no guarantees the transplant will work. It may fail (in the recipient) and there are no “backsies,” i.e. you can’t put that organ back into the body of the donor.

TYPES OF SURGERY

• Open vs. inside (Open nephrectomy vs laporoscopic)
• The doctor and the transplant team makes the decision as to what method will be better, and it is based on anatomical reasons
• Differences in donor pain and length of stay post operative (based on type of surgery)

WHAT TO EXPECT- SHORT TERM

• 2-3 hospital day stay
• 2-6 weeks before work (less if it’s laporoscopic surgery)
• All medical bills to go to recipient’s insurance
• Major surgical complications are less than 2%
• Minor complications are less than 10%
• Mortality is 0.03%

WHAT TO EXPECT- LONG TERM

• No physical risks to donor
• Life insurance premium is not increased (and that, if anything, should prove this is really not a risky operation. Otherwise insurance people would definitely raise it.)
• Adults with one kidney live normally but should avoid sports that involve high risks of heavy contact= NO BULL FIGHTING
• No harm to remaining kidney
• No increased risks for childbearing purposes

Actually, a lot of us- of you- are walking around with just one kidney and don’t even know it. You’ll find out if you go into the military…

WHAT IF SOMETHING GOES WRONG FOR THE DONOR LATER (GETS KIDNEY DISEASE)?

• Donors who need a transplant- of more than 75,000 live-donor transplants since 1987 only 119 patients have been listed on UNOS for deceased-donor transplant
• These patients go to the top of the list

RESULTS OF LIVING RELATED TRANSPLANTS

• 1 year graft survival is 95% (that just refers to whether the kidney is still working one year after the surgery)
• Cadaver kidneys are 10-15% less in terms of still working
• There is no significant difference between living UNRELATED donors and living RELATED donors (like a daughter to a father)

Live transplantation was unheard of in the orthodox world for a long time, till about the last 5 years. There are now ads in the Jewish Press, however, all the time.

People who donate to others- it’s really a love match, a love story- we, the Orthodox community can only grow through and from this.

While a live-donor is better than a cadaver, the differences are really only in the first year (points to graph on slide-show) after that the lines are parallel.

Rabbi Willig’s Speech

I’ve brought a prop (holds out cutout from the Hamodia newspaper) it says “Newly-wed woman, 23 years old, very desperate for kidneys A or O.”

I’m going to try to cover the basics of a very complex topic in as brief a way as possible.

The most important statistic is the very low mortality rate associated with kidney transplants.

Now, the question I want to address is- is donating a kidney fulfilling a positive commandment, or is it a chiyuv, an obligation?

We have the mitzvah of “vahasheivoso lo,” the restorative commandment. There’s a Gemara in Sanhedrin addressing this. Now, if one is required to restore a lost object, how much more so to restore an almost-lost life, one might say!

Lo ta’amod al dam re’eicha/ Do not stand over your brother’s blood- This is a verse meaning that you can’t stand idly by and watch as someone is drowned, or attacked by bandits, bears, whatever it may be, because it’s like you killed him (unless, a Chana insert here, you yourself can’t swim, etc.)

Now, R’ Ovadiah Yosef (Yechaveh Daat 3:84) seems to say that such an obligation exists. He quotes the Radbaz saying that one goes back to the paradigm- someone is in danger, drowning in a river/ attacked by bandits, whatever it may be. I am taking a risk in rescuing that person. Therefore, by definition in the process of saving someone’s life, the assumption the Gemara makes is that one must take a small risk. (Since there is more than 99% survival in kidney-donation, might be similar!)

The Me’iri, in contrast, says there has to be no risk at all.

How to resolve the two? To say that there may be an element of some small risk, and that is acceptable.

Nonetheless, a careful look at the Yechaveh Da’as shows he changed the expression. When it comes to the drowning example of ‘Lo Ta’amod,’ he says “Chiyuv,” meaning obligation. However, here he refers to the word “mitzvah”- as R’ Ovadiah Yosef does as well. [Note: R. Ovadiah Yosef and the Yechaveh Da’as are the same.]

There is a difference between a chiyuv and a mitzvah. No one I know of says it’s an absolute obligation to donate a kidney. If it were a chiyuv, after all, an obligation, the question becomes- why don’t we all just run off and go do it immediately?

A potential argument might bet hat there’s pain involved, and one is not obligated to suffer pain in order to rescue another. The Magen Avraham, however, states that one is obligated to undergo pain. The Netziv says so as well, and both of them cite a Talmudic reference to explain.

The Magen Avraham cites an idea that you can’t betray a Jew who is hiding in the Beis Midrash when the Romans are looking for him, or otherwise his blood is on your head. However, that is an ACTIVE example- if you tell the Romans where he is hiding, you are actively killing him by speaking. But not to give someone a kidney seems to be passive! So this is not a perfect comparison.

The Netziv says (here I get confused. I think I heard something about having to hire workers?) and have to spend a lot of money, undergo tircha (work) which is Rashi’s expression as well.

The Taz in Yoreh De’ah, alternatively, agrees with the position that you don’t have to undergo pain to save someone’s life. Then again, a side-point is that not all pain is created equal.

Even if one assumes that one IS required to undergo pain to save a life- bone marrow transplants in my opinion one is obligated to undergo, for example…is this the same?

This issue is very relevant to my community (tells some Riverdale stories about his shul, and how just recently a husband sponsored a Kiddush in honor of his wife who donated her kidney to him.)

Now, let us look to the Gedolei Ha’Torah- the classical answer is from R’ Moshe Feinstein (Igros Moshe Yoreh Deah Chelek Beis Siman 174 Anaf 4) , referencing Yoreh De’ah, KN’Z (kuf nun zayin.)

A person is NOT required/ has no chiyuv, absolutely NO obligation to donate an organ to save somebody’s life. Laudatory, encouraged definitely, but not an absolute obligation to do so. A person has to give all his money not to violate a lo ta’aseh, and there R’ Moshe says “Money yes, organ, no.” He draws a distinctive between ACTIVE and PASSIVE as well- perhaps actively we may not violate things for the sake of an organ. Organs might be equivalent of money by Shabbos, but for saving a life an organ might not be the equivalent of money.

The Tzitz Eliezer 9:45 adds a phrase to this idea- “Darcheha Derachei Noam,” meaning “Her ways are pleasant ones” and agrees with R’ Feinstein. If there’s really an obligation to donate your organs to people, it means that Beis Din, if there were a Beis Din, would be able to force people to donate their organs and punish them for not doing so- but that’s NOT “Deracheha darchei noam,” her ways are pleasant ones. To those who say that the individual has to put himself in small danger to save others from large danger- still, if you save him when he’s drowning, you get yourself, whole, back again, whereas by an organ transplant part of you is missing, you are not whole anymore.

Live organ donations- kidneys, not getting into issues of lungs and livers; there’s some talk that those can grow back so my former idea (of not being yourself at the end of the rescuing/ restoration process) would not apply…I want to mention as final words some people want to do something where as soon as they die their organs are removed…THIS can lead to DCD- potentially a halakhic problem, because someone might want to hasten the death to get the organs!

Cardiac Death in Jewish Law

Introduction by Rabbi Kenneth Brander

I want to begin by thanking (list a lot of people)- distinguished doctors, students, CJF, premier educators, Simon Wiesenthal Museum of Tolerance who is helping us with the teleconferencing hookup with R’ Schachter today. R’ Schachter really needs no introduction, but on a personal level, relationship between Rav and community, interacting with many of them, there is one Rosh Yeshiva who stands out from the crowd- in many ways due to his energies and efforts, and that is R’ Herschel Schacter.

R’ Herschel Schacter’s speech ( he had sources for everything he said, and said them, but too quickly for me to write them down- but LabRab got them! )

Thank you very much.

The Gemara in the last perek of Yuma discusses a situation where we’re not sure if someone is alive or dead, and quotes a pasuk : kol asher nishmas ruach chayim be’apav, “whoever has the breath of life in his nostrils (Parshas Noach).

It seems that when a person is breathing he is alive, otherwise if a person is no longer breathing, he is considered dead. (This is based on the idea that on Shabbos, if God forbid a wall collapsed on someone, how much can we be m’challel Shabbos for him.) Based on this Gemara (moving rubble, etc) many have developed a theory of brain death [since the brain stem controls breathing].

There’s a Teshuva of the Chasam Sofer- one of the more popular teshuvot- there are a few of the teshuvot of the Chasam Sofer where the name of the Sho’el (questioner) does not appear. Does not say to whom it was sent, but we know it was sent to the Maharatz Chajes (מהר"ץ חיות, a great posek and intellectual in 19th century Italy) The name doesn’t appear because at one point in the teshuva the Chasam Sofer says “Are you an apikores or something? You don’t believe in emunas chachamim?” But we know it’s the Ma’aratz Chajes because he compiles a book called “My conversations with the Chasam Sofer” and this is in it.

One paragraph of the teshuva quotes a statement from the Rambam from Moreh Nevuchim (Guide to the Perplexed) stating that the medical records of Greek doctors state that they saw a case where a man stopped breathing for three days and was not dead/ woke up again. The Chasam Sofer says in response to that statement in Moreh Nevuchim that this is a possibility but he doesn’t think the Gemara is saying that is the definition of life and death (in Yuma) but rather a siman, a sign that one is alive= breathing.

(He mentioned something here about an ill person who is so sick that you’ll be m’challel Shabbos to drive him to the hospital, and by that time he’ll be dead, but if there’s even the slightest, 1% chance that he might be saved at the hospital/ might survive for that, you drive him anyway.)

The Chevra Kadisha sees someone who is not breathing for 15-20 minutes, and it’s so far-fetched that he is still alive that we have the right to ignore this. The definition of death has to be one that would have made sense in those time periods. Moshe Rabbeinu is given this din as a guideline- if he’s not breathing for 15-20 minutes that’s a sign that he is dead, but it is not the definition of life/ death. [The point is that cessation of breathing for a long period of time is 99.99999% certainly an indication of death, even if it isn’t the definition of death, so after that point we don’t mechalel shabbos and we are allowed to prepare the body for burial.]

R’ Moshe Feinstein has a fascinating teshuvah about tefillin where someone asked him whether one was fulfilling a mitzvah to put tefillin on a paralyzed arm, seemingly a dead arm. R’ Moshe Feinstein answers by saying “Absolutely yes,” and he knows because his own father had a paralyzed arm after suffering a stroke and put on tefillin every day. The Gemara discusses mumim and what constitutes a ba’al mum (someone who has a blemish/ flaw on his body) and he quotes from the Gemara “If the flow of blood has stopped in an irreversible fashion, then it (the limb) will develop…grangrene, it will be dead.” If there is no flow of blood to the arm then it is dead- you cannot fulfill the mitzvah of tefillin with such an arm. But here the nervous system is not working, and blood is still flowing, which means that it (the arm) is still alive! So as long as the blood is still flowing, the limb is alive.

Tosfos explains that the blood circulation is what keeps animals and human beings alive. One of the prohibited activities on Shabbos is חובל, causing a wound to bleed. Tosfos is of the opinion that chovel is part of the melacha of killing …so we cannot cause even a little bit of bleeding; it’s considered “A small amount is equivalent to the larger amount” (He might have said Talmud Yerushalmi here…)

When the flow of blood has terminated in an irreversible fashion, then one is considered dead.

Now, by a brain-dead patient, if the brain is considered dead because there’s not enough blood flow to the brain, there are several possibilites-

1. Difference between vital organs and non-vital organs to begin with. If one loses a vital organ one is on the way to dying. How many vital organs are there? The Rambam and/ on Mishnayos says (in the context of several mishnayos which introduce the term אבר שהנשמה תלויה בו, for example if a person says: “My heart will be a Nazir” then he becomes entirely a Nazir, since it is impossible for him to exist without his heart; but if he says “My fingernail will become a Nazir,” he does not become a Nazir):
a. Brain
b. Liver
c. Heart

So the Rambam says Mishnayos is only speaking about the three vital organs.

Halakha says we recognize these three as a mashal (example to us) and the rest count as well. [I think he meant here that it is possible that there are more than three vital organs, but the three listed by Mishna/Rambam are just examples.]

So with respect to considering death- when all of the vital organs are dead/ no longer blood circulating to the vital organs, you are dead.

So what if only [some of] the vital organs are dead?

1. My opinion- I can imagine that you can say that if only one vital organ is not functioning, the whole organism is dead
2. No- if one of the vital organs is dead, but not the others, one is not considered dead
3. You may need two out of the three to be dead before the person is considered dead.

Now, there’s the idea of the goses (someone who is not yet dead but is approaching death.) In some Halakhos he is considered like one who is dead, and in others not. How to define a goses?

The Rambam says a goses is one in whom the process of death has already begun. So if we assume that if one vital organ is dead, then the whole person is dead, then what’s a goses? When one vital organ BEGINS to deteriorate?

If one’s not considered dead, however, till all three vital organs are dead/ have no blood flow, then goses is when one of the vital organs is dead, it would seem.

Now, a clean, neat definition of goses is to say it applies when “rov/ kol” of vital organs are dead (the majority or all.)

R’ Soloveitchik is quoted as saying that even if the Vilna Gaon were alive in our generation, he would not have big enough shoulders on which to rest the weight of this decision (of what constitutes alive or dead)- it is simply unclear from the Gemara.

Because the definition of death cannot be changed nowadays to fit what we know nowadays; the definition of death had to have been set in the times of the Tannaim and known to the Tannaim. You can’t give a definition of death that wasn’t known to the Tannaim.

(He quotes something here, which I can’t quite catch.)
The Gemara in Avodah Zarah divides history into three eras: Shnei Alafim Tohu, Shnei Alafim Torah, Shnei Alafim Yemot Hamashiach (2000 years of emptiness, 2000 years of Torah, and 2000 years of the Messianic Era. The Chazon Ish in Hilchos Treifos wonders: Don’t we still learn Torah nowadays? He explains that “Shnei Alafim Torah” means that all legal concepts in the Torah are defined based on the physical and social realities present during the 2000 years between Matan Torah and the closing of the Talmud. [Avi adds: The Chazon Ish uses this principle to explain the problem of treifot, viz. why we retain our categories of treifot even if they no longer correspond to life-threatening illnesses – since they were that dangerous during the period of shnei alafim Torah. The Chazon Ish’s approach is one of the classic solutions to the halachic problem that is solved in other contexts through the device of nishtaneh hateva. VeAKMa”L.]

and so the parts of Torah have already passed, so we cannot contradict/ disagree with the Tannaim. The categories and concepts of Halakha need to be defined in the period of Shnei Chalakim Torah- known to the Tannaim. All these fancy definitions of brain death now were unknown to the Tannaim.

Now, a friend of mine showed me a secular medical journal where there were 50 different opinions on brain death by each group (he named Harvard, Princeton, etc) and each one of the 50 has 3 different divisions of opinions, so 150 opinions.

There are no sources in the Talmud to recognize brain death- only blood circulation. If one is willing to accept brain death based on the idea of one vital organ dying means the entire organism is dead, then one should be equally willing to accept liver death! I can see such an opinion.

I wrote a teshuva on this idea, so all my sources are there (names book Be’ikvei Hatzon (one of R. Schachter’s two seforim of חידושי תורה.) It was suggested to me to send it to R’ Elyashiv, so I gave it to my acquaintance to give to R’ Elyashiv. But R’ Elyashiv doesn’t have time to read my 15-page teshuva so he asked my acquaintance, “Btoom line is what?” The acquaintance explains that R’ Shachter says that a brain-dead patient is “Safek-chai, safek-mais” (It is in doubt whether he is alive, in doubt whether he is dead.)

R’ Elyashiv answers and says that he is at least a goses, and is considered a “safek-mais, safek-chai.”

[I don’t remember a name here, but R. Avraham Steinberg in his response to this point said that it was R. Avraham Shapira, the Ashkenazi Chief Rabbi of Israel.]____ came to visit Yeshiva for a year, came late, went to Dr. Lamm’s) office, apologizing to Dr. Lamm why he showed up two weeks late- said he had to stay for a vote on brain death/ can you take out organs from a brain-dead patient?

He responded that the rabbanut allowed organ donation based on a combination of three factors:
1. Shtayim she’hargu is patur from misah- two that kill are exempt from murder, while one who kills is a killer- so if two doctors remove the organs from the brain-dead patient, then it should be fine. I (R’ Schacter) couldn’t contain myself and started screaming at R’ Levi Shapiro, “What is this shtayim she’hargu patur; it’s still assur, retzicha is assur!”
2. Also, they mentioned that the majority of brain-dead people come from automobile accidents- I didn’t agree with this either, what, just because someone crashes a car he is suddenly a goses? [The gemara in Sanhedrin 78a says that there is no חיוב מיתה for killing someone who is a גוסס בידי אדם, someone who was mortally wounded by another man. The Rabbanut felt that car accidents fit that category. R. Schachter didn’t agree; and even if he did agree, still all that means is that there is no חיוב for killing; but there still is an issur.
3. The Rabbanut considered brain death a safek, and with the other factors permitted. R. Schachter couldn’t believe that they are permitting safeik retzicha.

This I feel should be the definition of death- if any vital organ is dead the person should be considered a safek-mais, safek chai.

(Question time)

PHYSICIAN FROM COLUMBIA PRESBYTERIAN: IF we cannot halakhically accept the notion of brain death, we cannot accept heart donations- because murder is involved, to remove the heart. What would you say if a religious Jew needs a heart transplant; can he benefit from the murder of somebody else? Also, Jews are viewed as wishing to benefit from organ donation but not willing to be donors as well, which leads to discomfort?

(clapping. I don’t really get why there was clapping for the question…)

R’ SHACHTER: Regarding your first question, if the Halakha is not prepared to accept this, can you benefit from murder? You can argue this both ways. One can present an argument saying I’m not allowed to save my life at the expense of another’s life. Many Rabbanim feel it is permissible, however, because the man will die anyway. For the second question, I agree that this is a serious issue, but Halakha does not pasken according to societal views. Exact quote: “We don’t permit רציחה because of social pressure.”

Back to Rabbi Kenneth Brander

Look, everyone- we had two choices in this, to run this conference or not to run this conference. Not to run the conference would have been the easiest but also the wrong thing to do. People are already upset with us over who we did/ didn’t invite. Point for the record is that I recognize that there will be different rabbinic approaches but I think intellectual honesty requires that they are presented by people who recognize and live these positions. Respect for leaders- hamayvin yavin- all approaches are being communicated.

Now what happened was that there were 4 different options for speeches, all going on simultaneously in different rooms. I went to R’ Avraham Steinberg’s speech on Organ Trafficking.

Organ Trafficking by R’ Avraham Steinberg

There are various ways nowadays to obtain organs if you need one- you can go to China, pay a certain amount of money, and someone will be executed for you, and his organs will be given to you. Same thing in Colombia. You can go to a third-world country like India, Romania or Turkey, get a match, pay a sum (usually not very large, because it’s a lot for them, but only a little bit of money here.) There are even groups that go from the developed country to the undeveloped country so that the operation will be successful because the transplant team is from the developed country.

There is a way in the USA to bring someone who is being paid under the table and get his organs “legally,” simply by terming him your relative- your “cousin” or “brother;” it’s interesting, you know, to see this Chassid with his payos and religious garb next to this blonde non-Jew, and suddenly they are brothers! (laughter) And this brother altruistically wants to donate his kidney and so on. Now, it’s only natural that people would want to do this- people want to save their lives. But the fact is that it’s hard to blame someone who wants to save his life. I know personally very respectable people (army officers, government officials) at least in Israel, who do this because there is no legitimate way to do this.

The fact is that there are not enough organs- halakhically OR otherwise, because honestly the small 2% of Jews who may not be donating their organs for religious reasons don’t make that much of a worldwide different. Live-donors or deceased, people on a whole don’t want to give.

So talking about live-donors, the stated philosophy of Western society is that a live organ-donor must be ALTRUISTIC. Any compensation is regarded as illegal or immoral in a sense of organ-trading, which looks like slavery. I would like to open an informal discussion with you. I think we all agree that the examples I gave you (like with going to a peasant, giving him a TV and taking his kidney, or the Chassid and his non-Jewish “brother”) should not be.

So how can we get someone to be a live donor?

Woman 1: Education (goes into a long explanation of how she feels educating people to know that kidney donation is really not so risky, is helpful, etc is important.)

R’ Steinberg: You’re suggesting to educate people to become live donors. Now, does the live donor have to be altruistic or not necessarily so?

Man 1 w/ question: Why is it inherently immoral to go in for compensation?

Man 2: It’s obvious. Rich people will always buy the organs, there will be a maldistribution of organs, and that is unfair to everyone else.

(someone) So what if you set up a government agency to pay the money vs. the individual paying money for the kidney? (someone else brings up health insurance now, and how we should have health insurance for organs)

Another person: But it’s still the rich countries that will be able to afford the most organs.

Yet another: Better some people do get them than none!

Man with a hat: IF we can pay people for giving blood, give sperm, give ova…why not this?

Man with glasses: Actually, we do NOT pay people to give blood, ova, sperm.

R’ Steinberg: But surrogacy here is also for free?

Chorus of voices: No.

R’ Steinberg: A surrogate mother is paid to harbor and incubate the baby. This surrogate woman does not need to be pregnant at the time and yet she endangers herself, maybe more than she would if she donated the kidney, in order to do this!

Another person: What are the halakhic ramifications of obtaining an organ that might be stolen?

R’ Steinberg: You may expand your question- halakhically speaking, can we pay for organs at all? Leaving aside stealing…

The way that the world now approaches this dilemma is divided. Most of the legal systems at the moment outlaw any type of compensation for live organ donation as opposed to surrogacy, blood, sperm donations, ova, etc. It’s not illegal to receive money for surrogacy, etc. However, if someone donates a kidney and is paid for it, it will be illegal.

This is based on 2 principle assumptions. One is a basic philosophical assumption, the other a _____ assumption.

To pay for a part of the body incites/ causes people to do something they might not otherwise do, which hence must be made illegal. I confess I don’t understand it. If someone makes an autonomous decision to be a coal miner or engage in a dangerous profession for his parnassah, that’s fine. Or boxing? We pay professional boxers to entertain us, and look at Mouhammed Ali, who is completely demented from so many hits. Why can we pay people to do things which are so much more harmful to the body, but not for organs?

And what about soldiers- we don’t expect them to altruistically go to war and risk their lives; we pay them for it! We don’t expect altruism for any other service, so why now?

What I do understand is that the end result can be potentially problematic- that rich people might get more organs. The world is not, however, ideal.

Story:

There was a Pakistani man, a relatively poor person who had a daughter with leukemia. He took her to England after scraping together the little money he could to get a bone marrow transplant. They laughed at him because it wasn’t enough money. So he said he’s willing to sell his kidney- use the money from that to save his daughter, and save the other person with my kidney. But compensation is not allowed in England, so in the end the daughter died and the recipient died.

There’s a way to compensate so it will not be a kind of trade. This donor might receive education for free instead, rather than money. Because studies show that if you sold kidneys on a trade market, it would be bad for people. Because you give poor people money and they don’t know what to do with it/ waste it, and they’re no better off. So instead give them housing, clothing- a person’s life would be saved.

Honestly, to cross the street in Jerusalem is more risky than donating a kidney.

The risks are exaggerated. There is an exaggerated paternalistic approach to protect everyone.

So to avoid exploitation, it should be done by the government, insurance society, at a fixed price, to minimize unwanted societal consequences.

Another interesting point- everyone involved in organ donation is being compensated:

a) The Doctor gets money
b) The Nurse gets money
c) The Recipient gets the kidney

And yet the nicest person, the Donor, receives nothing!
Why does the donor not receive any money?

There’s no altruism in capitalistic society. In the old days, kibbutz, etc, then everyone would work altruistically. But today nobody is altruistic. R’ Shlomo Zalman zt’ll said compensation is okay from a halakhic point of view. However the basic idea is that mitzvoth should be done for free- Moshe Rabbeinu was not compensated, one might claim, so too us! There’s a verse that states Ma ani b’chinam, af atem b’chinam!

But show me one Rabbi who isn’t compensated and does this for free! Show me one Rosh Yeshiva who is not compensated. Show me Jews who are giving away lulavs and esrog for free!

So the idea is that to maintain the Halakhos one has to deviate slightly from the ideal in Halakha. If we required everything to be done for free, then nothing would ever be done. The ideology is to do it for nothing, but the practicality is to do it for something. If a meshulach goes to get money for a Yeshiva, he gets 30-40% of it. This is how the world is made up today. And therefore, said R’ Shalom Zalman, there’s no difference between TAlmid Torah being compensated and organs being compensated. No poskim as far as I (R’ Steinberg) know disagree with this approach.

So let me tell you what is happening in Israel right now. Altruistic only- there’s a committee in Israel that checks every donor to make sure it’s altruistic. I happen to be the National Chairman- but I am almost sure everyone gets money under the table. Because how can I do it? The Shin-Bet didn’t come to me to volunteer; the Mossad was unavailable. So I ask him “Were you paid for it?” “No,” answers the person, “of course not.” And then what else can I do?

With regards to exploitation, there are sometimes stories with that. For example, an Arab woman is regarded as much less than a man. So this Arab woman who is divorced and has two little children comes and says she wants to be a donor to this completely unrelated person, and offers as reasons the fact that she loves him, he helped her…so we dug around a bit and we saw that she was forced to do this by her brothers because they received money from the man (the theoretical recipient) for this. So we told her that she should continue to insist she wants to donate and we will be the bad guys and say no, and by law we don’t have to explain why. I saw the smile on her face when we said this. And later I received a very secret letter from her saying thank you.

Another example is this new Russian immigrant to Israel who knows no one. She was hijacking (correction from everyone- hitchhiking) yes, hitchhiking, and this man picks her up. While he’s driving her he tells her he hates his wife, he loves her, and he’ll marry her and they’ll start a life together if she gives him her kidney. And she said yes. So of course we investigate that and the man, and finally the man breaks and says that he loves his wife but he wants the kidney!

By the way, even within a family, where a family member is giving another family member a kidney it is not so simple- there is societal pressure, where the child or brother probably doesn’t really want to do it but feels forced into it.

At the moment, the law that is being proposed in Israel is like this- compensation is forbidden but you can compensate for expenses. Now expenses don’t have to be real expenses- they’re evaluated expenses. Still, this is too low a price, so people won’t come and want to donate. To do it halfway is what they’re suggesting. The price is not high enough/ compensation is not good enough. So we’re trying to work out forms of compensation which will be a fixed price/ education/ insurance. But fixed price idea won’t go to a specific person but rather first-come, first-served.

I think the world is understanding this and is doing much worse things now. No country yet that I know of has punished people for going to China, etc, because there’s no other solution. So we need to find solutions. It’s not enough to say something in principle but then not do anything when people go through these wrong immoral things. I find it hypocritical.

Another story about this girl who works delivering pizzas. She earns 5000 shekels a month, which is barely enough to live on. So she decided she wanted to donate her kidney, to do a chesed. And I asked her- why not go to Magen David Adom, do something else, and she said she can’t afford to become involved in an ongoing chesed. She wants to do something once, one good deed so she feels about herself that she is a good person. But she wants someone to give her the 5000 shekels she would have made were she not recuperating from the surgery. So the government said no because this would be compensation. So we had to pay out of pocket for this…

(In answer to someone going on about education being the means to persuade people to give kidneys) Well, there is a psychological burden to undergo surgery, to lose part of the body, and I doubt education will solve that problem.

(The HODS (Halakhic Organ Donor Society) head now spoke up and said thank you, suggests that money might minimize altruistic pools- R’ Steinberg said he didn’t think that would/ should be the case)

Brain Death in Jewish Law

Edward Burns to introduce Dr. Fred Rosner

…spoke to YU students in pre-med programs and some said they’d be applying to Harvard and Yale- I would suggest they don’t settle and trade down (laughter from everyone because he’s saying Einstein is better than Harvard) (did you catch the reference about Stern students having other incentives? i.e. free tuition. ;))

All of our discussions here have been on the cutting edge- in 1959 the first Jewish text on bioethics was published by Dr. Jakobovits. Not the same as today, though…different issues discussed…

One of the most distinguished alumni from Albert Einstein is…Dr. Fred Rosner.

Dr. Fred Rosner

…very lavish introduction. Sorry my parents couldn’t hear that- my father would have been proud, and my mother would have believed it all.

Definitions of death became inadequate when heart transplants started…”irreversible cessation of all brain stem function” is the terminology used. For students of the Daf Yomi, just a few days ago we finished Yuma, daf P”G (pay-gimmel) which is the key source for all the controversy is around a key Rashi there.

There’s a story about a building that collapsed where you don’t know if the person buried underneath it is dead or alive- so you bring shovels and pickaxes to get him. If he’s alive, you take him out. If he’s dead, you have to leave him for later (because you’re being m’challel Shabbos for him.) So how far do you dig to figure out if he’s alive? Up to the nose= respiration. Considered that the heart controlled respiration.

V’yeish omrim- another opinion says up to the heart. The Yerushalmi says up to his bellybutton/ navel (if you found him feet-first.) Bavli says up to the nose OR including the heart. Now, the Rashi there says “if you found him and he appears like a stone- an inanimate stone” then he’s dead.

Now there are lots of other sources for brain death, but this is the main one. What does it mean- none of his limbs are moving- now, Rabbi Tendler is many things but also the author of the “physiological decapitation” idea. When Marie Antoinette was beheaded she was dead- limbs jumping around, but she was dead. So if there’s no circulation to the blood (and you can do this with radiation and Geiger counter, CLICK CLICK CLICK over the head) then person is brain-dead. This concept of “physiological decapitation.” It’s all based namely on this Rashi.

The Lubavitcher Rebbe was brain-dead for six weeks and they cleared out a whole floor and made an ICU just for him. Now, who is going to pay for the care of a brain-dead patient? Insurance won’t pay for it, so that’s an issue. Another question you might ask is if the Rebbe is occupying an ICU bed, is that depriving another patient of a bed? Is that medically/ ethically wrong?

Let me now introduce my teacher, mentor, colleague, friend, posek, R’ Moshe Tendler who is known worldwide for his psak, is a pulpit Rabbi, a Rosh Yeshiva at YU, Chairman of the Bio department at YU, and who discovered the chemical compound Refual which was quite big at the time…a multifaceted individual.

Rav Moshe Tendler: Brain Death in Jewish Law

(There’s a slideshow up. He looks at the top of the slideshow, where the YU logo is tilted to the right on the scan.)

If you notice, up here, the logo is tilted to the right. That’s the way Yeshiva’s going. [HUGE LAUGH.]

To tilt to the right means you’re prepared to accept stringencies in Halakha. There’s a copy of the Shla Ha’Kadosh…the Shla says when someone has a shailaand he sees it in two ways, the lenient and the stringent approach- there’s a pasuk

“Yegia kapecha ki tochal, ashrecha v’tov lach”

You work hard, then you’ll be rewarded. When you work at a shailah and you are convinced it’s kosher, then you eat it yourself. A cop-out, this unsure, let’s be “machmir” idea. I have a cap saying, “I have a chumrah that you’ve never heard of.”

I’m sorry that R’ Schachter is not here. As you might know I had the zechus to have him as a talmid…and my joy to see him as the major pillar supporting Torah education. I believe that on this topic, which is the interface of Halakha and the cutting edge of medicine- not everyone should be involved in this. I think you have to answer how many brain-dead people you’ve seen. How many mothers asking why is my child dead today, when it seems no different from yesterday?

“When can you take a man OFF the ventilator?” R’ Moshe Feinstein took two years on this. The idea is that if he’s dead we have a mitzvah to bury him/ a kohen shouldn’t enter the room/ his wife is an almanah, a widow.

“I do not know how to answer that question, nor can I answer…”

For a dead donor, not a live donor, it is a chiyuv not a mitzvah to give organs!

THE ETHICAL BASIS OF MEDICAL CARE- Biblical Sources

1. A negation of faith healing (Exodus 21: 19) The doctor has the obligation to heal people, but people need to know they can’t be healed alone. So people say God will heal me, well, they can’t go to the “real doctor” (God) unless they go to the “fake” doctor first!
2. A personal obligation (Deuteronomy 22:2) There is an obligation on the community to give money so that others can be made well
3. A modicum of person risk: healthcare for all (Leviticus 19:16)

Here I present to you an intriguing personality insight of R’ Feinstein. ______ posed a question about organ donation, kidney donation from a dead patient and gave many reasons as to why he feels it is forbidden. Some have intimated that I don’t understand R’ Feinstein and I feel offended/ insulted by that. R’ Feinstein said no such thing. The other person stated that the family feels great pain by the mutilation of the body- the psychological suffering, well THEN you are exempt from giving the organs, but (and this is classic R’ Feinstein) R’ Moshe concludes the letter by saying “don’t you realize that you are saving a human life and should not be suffering!” A chiyuv…

Now, some take issue with the description of the person breathing/ not breathing. If brain-death is defined as not breathing, then if a person is injured, or has asthma, or for some reason can’t breathe, he’s immediately dead?

No. So let us begin. This is the universal definition of death- accepted by everyone: “irreversible cessation of all functions of the entire brain, including the brain stem, is dead.”

Now, the question is, why the entire brain? Why not just the cerebrum? The answer is that if it were only part of the brain, we’d lose half the student body here at Yeshiva. (laughter)

The only definition of death is the death of the brain stem.

We think that when the heart stops you are dead, but really it is when the brain stops so that you cannot be resuscitated anymore.

It bothers me terribly when people speak halakhically about brain death and don’t know how it’s diagnosed.

Harrison’s “Principles of Internal Medicine,” pages 130-131, the heaviest book in any man’s library- line there says there is a test performed to see whether one is truly dead that is a “simple test which allows no chance of diagnostic error.” To the best of my knowledge, there has never been a case of brain-death accepted by a court and following all correct protocol where the person has recovered.

This is the protocol (on the slideshow there’s a sheet with responses, tests, etc.) When someone shows no responses, there’s certain texts- I took my father-in-law with me to visit brain-dead patients, and the test that impressed him the most was the gag-reflex, because anyone who is living would not calmly have something stuck down his throat and not gag- this shows that he really has something dangerously wrong with him- and is not breathing.

Through the IV you inject a radioactive substance (he showed us normal pictures of the brain, and then a brain-dead picture which is pretty much like a hole in the brain= no activity at all going on there) You repeat tests 12 hours later- see that the brain has been deprived of oxygen for 24 hours, and the brain dies in 4 minutes. Apnea testing is really the most conclusive test, however- you give the patient 100% oxygen for 10-20 minutes, remove pumping actions and leave tube in- see no autonomic breathing, and this is as the Gemara teaches us (he’s referencing the rubble story where you check to see if the man is breathing.)

Autopsy on a patient who is brain-dead for 4 day, and we see the brain has softened/ liquefied (he might have said something about finding pieces of the brain in the spinal column? That might be completely crazy. He said something with brain and spinal, though….) We are talking about physiological decapitation and morphological decapitation.

Death occurs in 3 stages:
1. Organismal death
2. Organ death
3. Cellular death

When someone dies, the organism no longer exists but you can still take the organs, transplant them, then the organs die but the cells are still alive…

Here’s a case of a brain-dead woman who was pregnant, and they wanted to keep the organs alive and the fetus as well. Now R’ Shlomo Zalman Auerbach was very disturbed by this because it says in the Gemara that the fetus dies first if the mother dies, because it is smaller and weaker.

To resolve this issue, in Israel they got a pregnant sheep and decapitated the sheep. Had head on one side and the sheep on the other side, waited 45 minutes, etc, and then by Caesarian section they delivered a healthy baby lamb which I believe is still alive to this day. No one would doubt that the sheep was dead- its head was cut off- but organs still working, heart beating for a little while, and baby survived.

The Chevra Kadisha sometimes reports that an hour after a person is declared dead a dead person sits up. Why? Because you move the head, stimulate the spinal cord, and it sits up- it’s a major cause of heart attacks. (laughter)

The decapitated sheep experiment shows even when something is dead- there is no one who will say a sheep with its head cut off is alive- the organs still move, the fetus is still alive. However the Gemara spoke of a woman dying in those times, not of a woman on the ventilator! Hence the seeming discrepancy.

In Oholoth 1: Mishna Vav (6) we see this described, the limbs are still moving but one is dead.

You’ll find everything in the Torah is a commonly described idea- well, you won’t find my microbiology course in the Torah- what this means is that AFTER you become a lawyer or a doctor you go BACK to the Torah and you will learn how to act.

There is a famous Gemara that is often quoted about the rubble, being mechallel shabbos, and looking to see if the man is breathing. But you have to look at the wording here! First, the man is “domeh k’mais”- he looks like a dead person! He LOOKS DEAD TO THE LAYMAN- and then you check to see whether he is still breathing. It’s exactly like the apnea test! So all these problems- if someone has an asthma attack- he doesn’t look like he’s dead, so it wouldn’t even apply.

There’s a Gemara in Chullin, unfortunately not cited by R’ Schachter, that says that Eli HaKohen fell off the chair when he heard the Pelishtim (Philistines) had captured the ark. Why did he die? Because he broke his neck. The moment he broke his neck he was dead.

Here’s the Shulchan Aruch- look at the subtitle! “Who is considered dead even though he is alive?” Incredible subtitle! So asks by Eli HaKohen- he doesn’t have physical signs of ____, even though his heart is beating, but he is dead.

Now, many people cite the Chacham Tzvi (heard wrong?) that the heart moving is what’s important. But you have to realize that he had a messed-up view of the circulatory system here (he explains how the Chacham Tzvi thought the body worked with contractions of heart, etc)- this is the teshuvah being cited to counter brain death!?

Here’s a teshuvah from my father-in-law saying that if there’s no autonomous breathing and one is only breathing on a ventilator- “domeh k’meis.” When he is motionless and cannot breathe without the ventilator, you should remove him.

Now here’s another famous quoted teshuva from R’Moshe (I think he said R’ Moshe) where he rejected cerebral death…but you have to read the shailah here! It says that cerebral death occurs while one is still breathing, so R’ Moshe rejected it because how could one be dead if one is still breathing? It had nothing to do with the issue of brain-death at all!

The Hamodiah last month, July 5, attacked Sha’arei Tzedek hospital for various reasons, something to do with an organ transplant that went wrong and then the team removed the organs…in the article they claimed that R’ Feinstein was against brain death. This is a lie! Where did that come from? And this is last month!

Question posed by Rabbi Bleich says if breathing is the key, then a person who has polio who is not “breathing” should be dead. But you see, he didn’t see the Rashi- “domeh k’mais,” first he has to look dead! A person with polio, even in an iron lung, does not look dead!

Another R’ Bleich text- they don’t know what brain death is. (He’s reading and I can’t catch this, something with a cow being shechted, and if the brain is liquefied it’s treif vs. nevailah, but how could you go and schecht a cow that had come off a ventilator?)

Here’s where a number of signators including R’ Schachter and R’ Willig are against the stance taken by the RCA to support brain death- saying a careful reading of the materials/ never saw the proof (I think he’s suggesting that both of them didn’t see some important part of the argument and confirm this…)

(more sources) Every single death is covered by teshuvas- not just deaths by ambulances…

Here’s a dramatic exit- many people go for Pesach to the _____ Hotel, which Barry Haftoff owns. He’s a tough fellow and doesn’t stand for nonsense. So he went to R’ Shlomo Zalman Auerbach and said, “I’m a dentist but I’m involved in medical decisions- is R’ Tendler’s brain stem death correct and can we take out organs based on that?”

“In American you can,” says R’ Auerbach. I have this note printed here… (I don’t know if the note is in reference to this or something else of R’ Auerbach’s)

Why in America? I’m sorry to say because he had little confidence in Israeli doctors- slippery slope theory or ideas.

QUESTION FROM YU GUY: We’ve heard R’ Schachter, we’ve heard you- how do we decided?

R’ Tendler: “Very simple. Wait a week till R’ Schachter hears what I said, and he’ll change his mind!”

(laughter)

R’ Brander gets up and moderates again, after he finishes R’ Tendler gets up again and says “It’s Ellul, I want to do Teshuva for not noticing the praiseworthy, etc, etc, etc, Norman Lamm is here.” He smiles and sits down.


Keynote Address

R’ Avraham Steinberg: Keynote Address

I want to start with a big chiddush to you- that the issues we are talking about are in dispute. (laughter)

Disagree on everything but we learn to live together- two chachamim are fighting a milchama for Hashem, the end is love when they clarify their points to each other, even if they still disagree.

Keynote address- I don’t know what this word, “keynote” means; do you know? (laughter) I assume I got the key and have to close the issue/ conference, but I suggest instead that I turn the key and open the issue/ So misunderstandings can be clarified here.

For the past 25 years I have been actively involved in organ-donation in Israel. And have had personal experiences with the Gedolim on this issue.

In Israel, around 25 years ago, heart transplant became a reality and the Ministry turned to the Chief Rabbinate and asked whether this was permissible. It’s unusual because Israel is a secular state, the fifty-first state of the United States, and usually does not ask the Chief Rabbinate’s opinion.

We were asked by the Chief Rabbinate to assist them on the issue. Before decision of the Chief Rabbinate was reached, there were lecture from experts before they discuss the halakhic matter, because good ethics start with good facts. Really went into the understanding of the process- accepted the concept of brain death although not as brain death per se but rather that the function of breathing is controlled by the brain stem.

In the old days, when they didn’t know this…done through the heart, so obviously no further breathing- reaching same conclusion. Change in process due to new technologies not a change in halakha. Since most victims of brain death situations are car-accidents, the issue of treifah became a sniff to the whole matter- position of Chief Rabbinate of Israel, I told the Chief Rabbis that it would be preferable if Gedolim outside of the Chief Rabbinate would understand and also agree.

1. R’ Elyashiv
2. R’ Yitzchak Weiss (did he call him Minchas Yitzchak (author of the teshuvos of that name, and Av Beis Din of Yerushalayim.? )
3. R’ Shlomo Zalman Auerbach

Heart-transplant is a double retzicha according to Minchas Yitzchak. I went to explain 2 facts.

A) That the recipient’s side has changed, and that now the recipient does not die after 18 days, but instead survives, so it is definitely not the same idea of rechitza involved.
B) Donor side- one can define this man as dead (from car-crash, whatever it may be) so it is not a rechitza either.

Now, R’ Weiss was hesitant to establish his opinion; he wanted a Beis Din where all three of them- R’ Elyashiv, R’ Auerbach and he could sit together.

R’ Elyashiv said he would meet but R’ Auerbach said that he refused to meet because this is something totally new to him/ he never paskened something without completely understanding it, this is too much, completely new thing he would have to learn. Because R’ Auerbach wouldn’t come, R’ Elyashiv wouldn’t come, and so nothing happened.

The Chief Rabbinate for “irreversible cessation” idead added to the brain death definition that-

1) Physicians should com from a specific list that the Rabbinate would approve (when it came to organ transplants/ pronouncing brain death.
2) Every case of brain death has to be diagnosed by clinical criteria AND an additional objective test
3) Review committee by physicians and Rabbis.

Well, the doctors came back and said, thank you very much for enabling us to do transplants, but we cannot accept these conditions. So these conditions have not been accepted by the Ministry of Health.

Depends on family in Israel- if the family is content with the physician’s diagnosis, that’s fine, otherwise the family has the right to ask if this brain-death is in accordance with the rules laid down by the chief rabbinate as well. So the hospitals agree to it but it is not the standard. We’ve been trying to amend the Ministry’s guidelines- only a few days ago we decided to rewrite the protocol and see if the Ministry accepts it - 20 years to make such a small change.

Now here’s a story:

R’ Shlomo Zalman Auerbach refused even to enter into the shailah when I spoke to him at first, but then he and R’ Elyashiv got together and said that taking out a heart from a brain-dead patient is an issur gemurah or retzicha.

So I went to R’ Shlomo Zalman and said, “What is this/ When I went to talk to you, you said you couldn’t, and now you have a verdict, and how is this retzicha?”

So R’ Shlomo Zalman answers that there’s a story from the Gemara about a pregnant woman dying and her fetus must die first! So he heard about a brain-dead woman giving birth to a baby; this means that she cannot really be dead, she must be alive! (This isdea is in Erichin daf zayin)

So I looked up the idea. But the Gemara goes on to say in the very next example that if the woman is dying/ killed, one can be mechallel Shabbos to bring a knife to open her up to sae the baby- so if it was ALWAYS the case that the baby dies before the mother does, then how could we do this? So Rashi says that sometimes the baby/ fetus is still alive!

So I went back to R’ Zalman and he told me I don’t know how to learn- saying that in that situation, where you can bring the knife to deliver the baby, she is already on the birthing stool – at the delivery stage, and so it is different!

So I looked at the Shulchan Aruch and in Siman Shin-Lamed I see that the Mogen Avraham says that even BEFORE the delivery time/ period one can bring the knife to save her! So I went back to R’ Zalman, and he said before I finished that he paskens against the Magen Avraham. And it’s true, there’s a machlokes there, and the Magen Avraham is a viable opinion!

So then R’ Shlomo Auerbach suggests the sheep experiment-if you’re saying that someone who is dead, really dead, can still deliver a healthy child, prove it! Take a pregnant sheep, decapitate her, and then deliver the lamb- that will prove the point.

BUT- said R’ Auerbach- the Gemara makes a distinction between “misah” or death and “neherigah” or killing. If the sheep is killed/ has its head cut off, that won’t help to prove the point here! But misah is a gradual death. So R’ Auerbach said that with harigah, since it’s instantaneous, sometimes the fetus doesn’t die right away! So what we should do is decapitate the sheep, then WAIT and then see if the fetus can still be delivered alive.

So it was a very difficult operation- we had an intensive care in the veterinary school, decapitate the sheep in a gradual fashion, and then we waited more than half an hour- the lamb came out alive! And of course we videotaped the whole thing.

So I come back to R’ Shlomo Zalman Auerbach, and I say I proved it, give him the video- he says “What do I need the video for? I believe you!”

“So what’s the halakha?” I say.

“NOW,” he says, “I have to think about it.”

“What do you mean?” I say, after going to all this trouble to prove it he has to THINK about it?

And he answered, “To understand a daf of Gemara, you’v done, but the halakha…”

So after much thinking and writing, R’ Zalman went very, very carefully over a document and this is what he decided-

“The heart by principle has nothing to do with death, breathing or non-breathing isinsufficient, the whole brain has to be destroyed.” This is his definition of death. BUT there is a Catch-22 to the situation, because he defines a brain-dead person as a “safek mais, safek goses,” which means he is “maybe dead, maybe near death.” Now, you can’t move a goses! But if you can’t move a goses/ can’t move a patient, then you can’t do the tests to prove that he is dead!

So I thought maybe we won’t move him, we’ll just inject him but R’ Auerbach holds that no moving, no injections, can’t even close lids of eyes…not rules that necessarily have to do with hastening death, simply rules.

So we came up with a test, the Doppler test- this he was willing to do. At that time, though, the reliability of the test was still below 90%. So he said no. But TODAY now that it has been improved, and it is much higher reliability, I believe that he would agree to the test and to its results.

Now, what is R’ Elyashiv’s position? This, too, I can illustrate with a story-

I got a call from R’ Elyashiv saying there was someone considered brain-dead, which he doesn’t accept, he wants me to go there and see if this person is transportable.

Now, I was still thinking on R’ Shlomo Zalman Auerbach logic, and I said, “What do you mean! She’s a goses; I can’t move her!”

And he said, “What are you talking about, to me, she’s alive! Of course you can move her!”

So R’ Elyashiv does not accept brain death at all it seems.

To conclude, everyone should have his own posek who is well-versed in this issue, understands it, more than legitimate to follow this.

R’ Zalman says about becoming a recipient in Israel- that you cannot be a recipient because he’s etting from a “safek-goses” according to his laws, but in the USA it’s okay. The definition of life/ death in Israel and USA is not the same. See, it’s one of the Noachide laws not to kill, but if a non-Jew declares a different definition of death and works by those rules, that is fine. He is not allowed to kill but he IS allowed to come up with his own legal definition of death, so in the USA it doesn’t matter.

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Quick closing remarks which I didn’t catch, announcement of Mincha- and it was over.

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The whole thing was completely amazing and brilliant.