Tuesday, January 11, 2011

Two Distinct Problems with a Chazal-Based Determination of Death

In yesterday's post, I did not make it sufficiently clear that there are two distinct problems with applying the traditional style halachic approach, of drawing inferences from Chazal and Rishonim, to the topic of brain death.

One is that Chazal mistakenly believed the heart (together with the kidneys) to house the mind, and consequently, the soul. (I know that some people argued that the mind and soul are not necessarily seated in the same place. I think that they can quite definitively be proven wrong, but that is not the topic for now.) Chazal lived in a world where a person's mind and soul were mistakenly thought to relay their force and influence from the heart, via blood and breath, rather than from the brain, via neurons and nerves.

A second and distinct problem is that in Chazal's time, there was clearly no medical possibility of differentiating between the functioning of different organs and systems. Rabbi Breitowitz notes that in the ancient world there was no practical situation in which there was a differentiation between brain death and cardiac death. All vital systems - respiratory, circulatory, and neurological - would fail at approximately the same time, and there was no way of keeping one system going while another had failed. Thus, the failure of any one of them would be a satisfactory indicator of death. As such, any argument that the Gemara demonstrates Chazal to have conditioned death on a particular one of these systems is missing the point. As Dr. Noam Stadlan puts it:

The definition of life based on the presence of circulation achieved widespread acceptance both in halakhah and in the secular world at a time when the body could be considered an indivisible whole. This definition fails to yield logically cogent results in an age when the body is no longer seen and treated as an interdependent structure. It also conflicts with the halakhic definition of life that is applied in the cases of conjoined twins as well as decisions regarding transplantation.


Now, if you are of the view that Chazal's words on anything are sacrosanct, infallible and timeless, none of this is relevant. But if you are of that view, then you should also prohibit donating or receiving kidneys, which Chazal say provide counsel. Since pretty much nobody takes that approach, certainly not the RCA, then an analysis which does not take the aforementioned two factors into account is fundamentally flawed.

53 comments:

  1. “All vital systems - respiratory, circulatory, and neurological - would fail at approximately the same time, and there was no way of keeping one system going while another had failed. Thus, the failure of any one of them would be a satisfactory indicator of death.”

    Interestingly, this applies to halacha as well. Until very modern times, living a halachic life was geographically localized and binary – either you lived it, or you didn’t. And if you did, interpretation was harmonized locally. With globalization and technology, there is little geo-communal glue that harmonizes those who do choose to live a halachic life. Increasingly – among Modern Orthodox -- hashkafa is becoming the determinant of whether one is halachic (since their view is God’s word and is therefore emes). And splintering as we see here is occurring, as it previously did in the 1930s and 1940s between the yeshivish world and MO.

    The debate you have been exploring in recent days, amongst others, are stress points in this broader debate. Perhaps it would be worthwhile to explore the meta issue of the halachic process in modern times more directly: and, specifically, what the principals should be for aligning halacha with the ever-increasing rate of scientific change?

    By way of illustration, the Hans Rosling visualization (http://www.youtube.com/watch?v=jbkSRLYSojo) shows the huge impact of societal/scientific change on global health care over the past 200 years. Halachic evolution is microscopic by comparison. And that is the challenge and opportunity.

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  2. I'm normally a big fan of your comments, however, here we are assuming that Chazal's view is based on science, rather that a spiritual/halachic definition of death, which is, even though not a crazy assumption to make, a dangerous one when it comes to halacha.

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  3. Joshua - it's not an assumption. I think that the evidence shows that this is the case.

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  4. Your entire point here is based upon an assumption - that human death is defined halachically based upon philosophical and/or scientific considerations. You have not provided any basis for this assumption, other than the fact that it just makes sense to you. In fact, the assumption, at least according to Rav Hershel Schachter in his Be'ikvei Hatzon page 249 (cited by Akiva in the previous thread) is absolutely false.

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  5. No, like many people on the previous post, you are misunderstanding things.

    First of all, for my post to be wrong, you would have to conclusively prove that NO mistaken scientific beliefs are involved. Can you do that? Of course not. Fact: We know that at least some of Chazal thought the mind to be housed in the heart and kidneys, instead of the brain. How can you possibly be 100% certain that this has no bearing on the question of brain death vs. cardiac death? I'm 99.9% sure that it conclusively proves that brain death is death and Chazal's discussions are irrelevant, but even if it is far from conclusive, it still means that any halachic analysis which ignores this is invalid.

    Second, it is quite clear that our knowledge of anatomy and our medical abilities mean that we would define death differently than Chazal. See the latest comment by Noam, to the previous post, at 5:37 PM.

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  6. Here is Dr. Stadlan's comment from the previous post:

    My position is that when the human brain has been destroyed to the point that it has irreversibly ceased to function, the person is dead. If we define death as the departure of the soul, which is perfectly reasonable, then the soul has departed. The presence or absence of the soul is not something that can be determined through science. The determination of death is actually the determination of the first point in time when it can be known with certainty that the soul has departed, it is not necessarily the exact time of the departure. Science has not reached the point where it can determine with certainty which exact part of the brain holds the soul, and it may be that this particular determination is not possible. However, that does not impugn the idea that the brain as a whole is the seat of the soul.

    Let us start with a live human being, and agree that he has a soul. We are going to remove parts and destroy them, and you tell me when the person is dead. First we cut off that person's arms and legs. So we have to decide if the soul went with the arms and legs, or stayed with the rest of the body. If the soul stayed with the arms and legs, and they are destroyed, then the soul has been lost and the person is dead. If we take out the kidneys and substitute a dialysis machine, you have to decide if the soul went with the kidneys. Next we we detach the head(with the brain), and attach just the head to a circulation pump. This has been done in monkeys. The head can mouth words, daven in fact, chew, and the brain waves(EEG) are normal. Is the head alive? has the soul gone? are you going to make the claim that a head that can daven, see, communicate, hear and think is dead?

    Next we take the brain out, so that all is left is an empty skull and face, but it all still has circulation since it is attached to the pump. Next we destroy the rest, except leave one ear attached to a pump, so that ear has circulation. As the final act the ear is destroyed. So, when did the person die? when did the soul leave? If you are a posek, and each of these events happened on a seperate day, when do you tell the family they are aveilim, when is the wife a widow? And, by the way, if you want to say the ear by itself with circulation is still an alive human being, then you have to explain why, if I cut off an ear, and attach it to a pump, I have not created a new life. (By the way, some of this is discussed in much greater detail in the Meorot article that R. Slifkin kindly referenced in his new post. I suggest you read it as it may answer more of your questions)

    Death is a label that is applied to a person. Outside of the Halachic realm it is not easy to prove or disprove a definition, since it frequently results in circular logic. However, a definition that provides coherent answers to all TECHNICALLY POSSIBLE situations has to be prefereable to one that fails to do so.

    I would also make the claim that Halacha has used science in the determination of death, and in fact the exact definition of death has changed over time to reflect medical advances. Therefore, the failure to use medical advances in establishing the halachic definition of death is in fact, the departure from tradition. Your position, in its deviation from the usual way halacha has been determined, is in fact the non-traditional one. Our Mesora has in the past taken into account medical advances in the determination of death.

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  7. In the first post, "principals" should obviously be "principles". Although there is also a discussion to be had about the former.

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  8. "We know that at least some of Chazal thought the mind to be housed in the heart and kidneys, instead of the brain."

    But who said that where the mind is housed has anything to do with the halachic definition of death? That is your ASSUMPTION, which Rav Schachter shows is wrong.

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  9. It's not an assumption, it can be logically proven to be true, as in Dr. Stadlan's example, or with the example of transplants.

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  10. Natan, Dr. Stadlan's comment demolishes your equation.

    Science has not reached the point where it can determine with certainty which exact part of the brain holds the soul, and it may be that this particular determination is not possible. However, that does not impugn the idea that the brain as a whole is the seat of the soul.

    That means that EVEN IF science determines exactly what part of the brain houses the MIND (which is not only possible, but pretty much done), it may be that it is not possible for science to determine what part houses the SOUL.

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  11. Did you read the second sentence? It doesn't make a difference to us (right now) which individual part of the brain houses the soul. It's enough to know that it's in the brain.

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  12. While I have great respect for Rav Schachter, his position on defining death is not logical, nor does it make much halachic sense. See this article by Dr. Dan Malach which essentially destroys Rav Schachter's ideas on using ever sh'hanishama tiluya ba.: http://www.medethics.org.il/articles/ASSIA/Assia65-66/Assia65-66.17.asp I also discuss Rav Schachter's position in the appendix to the article cited in the post.

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  13. Noam,

    Even if in your case the soul departed with the brain, that does not prove that when the brain is removed first, that the soul has departed with the brain. In fact, in the case of a patient who was declared brain dead on 9 Nissan, and taken off the respirator on 10 Nissan, Rav Schachter paskens, due to a doubt whether he is alive or dead when brain dead, and the chazakah of being alive applying to a safek in Halachah as well, that the yahrtzeit is on the 10th.

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  14. How does Stadlan's example or the case of transplants "logically prove" that halachic death depends upon where the mind is housed? Rav Schachter cites an explicit mishna that states that human and animal death are halachically determined the same way. Chazal never claimed that animals have a mind. The source that he quotes is a fact, not an assumption. Stadlan's (and your) theory assume certain premises which you need to prove in order to proceed. "It is reasonable..." is not a proof.

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  15. How does Stadlan's example or the case of transplants "logically prove" that halachic death depends upon where the mind is housed?

    Did you read it? It's pretty clear. Remove the person's organs, one by one, and tell me at which point the person is no longer here.

    Chazal did not claim that animals have a mind, but they did believe that the fundamental life-force for man and animals comes from the heart.

    See Dr. Stadlan's comments re. Rav Schachter.

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  16. "(I know that some people argued that the mind and soul are not necessarily seated in the same place. I think that they can quite definitively be proven wrong, but that is not the topic for now.)"

    I think you can make a good argument that it is wrong (I'll call it the "transplant argument"), but I don't think you can prove definitively that it is wrong.

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  17. Akiva,

    please read my paper. It goes into a lot more detail than I can here and saves me a lot of typing. It is free and in pdf form right here: http://www.hods.org/pdf/Problems%20Defining%20Life%20and%20Death%20by%20Circulation.pdf

    I even discuss how Rav Schachter cant use safek for every situation.

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  18. Pliny- You dont have to call it the home of the soul. You dont even have to invoke the idea of a soul. However, given the fact that organs can be transplanted, parts of the body can be sustained indefinitely even when not connected to the body, and other medical advances, it is necessary to identify which parts of the body need to be present and/or functioning in order to deserve the label of 'an alive human being'. Whether you want to call that the 'home of the soul', the 'seat of personal identity' or something else, it is a determination that needs to be made. It so happens that a functioning human brain is the home of the mind, and it also seems to be the part that needs to be present and functioning in order to deserve the label of 'alive human being.' Therefore, if we are going to use the concept of soul, as best as we can determine, both the mind and the soul are housed in the brain.

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  19. Dr. Malach's article capably questions the ever shehaneshamah teluyah bo list of three as per RHS,but he did not sufficiently address the Gemara in Temurah 11b, which states that SOME organs are דבר שהיא מתה, which means the organism is dead upon their removal. So while RHS' list of three is probably incorrect, Dr. Malach's article does not adequately address the overall concept and applicability of ever shehaneshamah teluyah bo.

    These Sugyos are murky.

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  20. R' Natan,

    Don't you feel a bit funny talking about "scientific" and "rationalist" proofs for the seat of the soul?

    When you use the word "soul" you mean something else than when
    ancient religious literature is using it.

    Their soul is completely meta-physical and religious concept.

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  21. R'NS(both of you :-)),
    How do you respond to the following - you are clearly (imho) correct about the lack of vocabulary/definition/technology available to chazal to granularly describe death. Given that at best we have the test that they used (for their time) but not necessarily the criteria they were truly testing for, nor the "philosophical/exestential" definition that generated the criteria, and given that the issue is life or death (for either the transplantee or the donor); the halachically appropriate approach is shev v'al taaseh?
    KT
    Joel Rich

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  22. "tell me at which point the person is no longer here."

    This is circular reasoning. Who says that the halachic definition of death is the same as my (or your) concept as to "when the person is no longer here"?

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  23. "(I know that some people argued that the mind and soul are not necessarily seated in the same place. I think that they can quite definitively be proven wrong, but that is not the topic for now.)"

    I highly doubt it. As I previously pointed out on your blog, the soul is heebeegeebee. There's no such thing as a proof about heebeegeebee. Did the people who hypothesized that the soul has weight deny it's existence after finding out that people weigh the same dead or alive? Of course not; you can say whatever the hell you want about heebeegeebee.


    Thought experiments don't prove anything (there's some strength to them when discussing reality but not heebeegeebee). Imagine that if you cut the brain in half that each half could control a face which would continue to daven (because everyone knows you can't daven without a soul). Did you just create a new soul? Split the old soul in half?

    Imagine that a scientist uses stem cells to gradually replace dying neurons as a person lives incredibly long. Eventually his cells are all replaced. When did he get his new soul?

    We can play these games all day. Mixing science and souls is sure to disappoint.

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  24. Reb Joel, I dont have an R. before my name, and deciding when to declare safek and employ 'sheiv v'al ta'ase' is outside of my expertise. I started writing a response, but it is going a few pages, so I will post just the main points here, and perhaps amplify on them later.

    1. the definition of death has changed over time, and it does not seem to have been necessary to declare a safek(I am using safek as shorthand for 'needing to employ the concept of shav v'al ta'ase).
    2. I think it was the Chatam Sofer who insisted that death be declared(and burial be done) even if 1/50000 was still alive and they would die as a result.
    3. we have to identify if there actually is uncertainty in the halacha, and if that uncertainty is more than there had been previously. I think that what we actually have is more accurate factual determination. On the Halachic end, I dont think that it is a safek, because the circulation definition of death no longer provides coherent results. The fact that people still hold it represents a failure to honestly address the facts and the logic.
    4. The question somewhat presupposes that there is a 'gold standard' of death which can be used as a fall back or reference position, which is not the case
    5. related to that, the criteria used now to determine 'irreversible loss of circulation' actually do not determine that circulation has been irreversibly lost(you can always start CPR which will provide circulation. As long as an artery is patent, circulation can be provided, even if the patient has been cold and pulseless for hours). Therefore, if loss of circulation is a 'halacha l'Moshe m'Sinai' type of immovable concept, the way we determine that has to change from waiting 20-30 minutes to be sure that the heart doesn't restart, to waiting a few days at least for the arteries to disintigrate.

    The bottom line is that the concept of 'brain death' has at least as much halachic certainty as previous determinations of death. The uncertainty is illusory.

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  25. Should we uproot the entire 12 day niddah system, and go back to the biblical seven. The whole thing is based on some alleged "agreement" of Jewish women to keep 7 days from the end of bleeding, rather than from the start, because of the possibility of blood being zavah blood, and not niddah blood. But no one seems to know what exactly this "zavah" blood is. I've seen no scientific identification of a separate category of blood apart from ordinary menstrual blood. Accordingly, we should reverse the supposed universal agreement [highly suspicious to begin with] because it's based upon a scientifically untenable proposition. Would you agree? [For the record, I would, for many reasons, VIACOM"L]

    I would also add that another basis for the 12 days is the proposition that it takes about 5 days for semen to leave the female body after intercourse, and hence one must wait 5 days after the 7 days [regardless of whether one was active or not prior to seeing blood.] Now, I am neither a gynecologist nor do I play one on TV, but perhaps someone here knows one, and can investigate. If in fact it does not take 5 days for sperm to leave, is that then another reason to kill the 12 day thing. [My answer above, mut. mut.]

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  26. DF

    "I've seen no scientific identification of a separate category of blood apart from ordinary menstrual blood."

    It's not about the blood but about the bleeding.

    One possibility for Zava: metrorrhagia, menometrorrhagia

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  27. Should we uproot the entire 12 day niddah system, and go back to the biblical seven... because it's based upon a scientifically untenable proposition. Would you agree?

    No, I would not agree. That is similar to the case of lice.

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  28. Don't you feel a bit funny talking about "scientific" and "rationalist" proofs for the seat of the soul?
    When you use the word "soul" you mean something else than when ancient religious literature is using it.


    Rishonim had all kinds of different things in mind. It doesn't make a difference; it's clearly related to the mind.

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  29. Tom said...
    "tell me at which point the person is no longer here."
    This is circular reasoning. Who says that the halachic definition of death is the same as my (or your) concept as to "when the person is no longer here"?


    Fine, so if you don't trust your ability to make that assessment, tell me at which point halachically the person is no longer there. And don't pretend that you can't answer that. If you amputate a person's arm, is the person halachically there? Of course. What if you replace his heart with an artificial one? Still there. Etc., etc.

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  30. DF,
    I think that you're getting confused about the Nidda thing.
    1.It is 5 days before (not after) the 7 clean days.

    2. The 7 days in the Torah for regular niddus are not 7 clean days, but 7 days (inclusive) following the beginning of menstruation. Whereas, for zava (loosely defined menstrual bleeding not within the range of a regularly scheduled period), seven clean days (not inclusive) following the cessation of bleeding are required (for zava gedola).

    3. There is no source suggesting that semen stays in the body for 5 days.
    (In fact Sephardic tradition according to the shulchan aruch is only 4 days. And according to some rishonim, although not accepted in normative practice today, it is not necessary to wait 5 or 4 days).
    Actually it is based on the halacha that semen which exits the body within 72 hours of its entry renders the woman temea. It can theoretically exit after that, but it does not render her temea.(Rambam hil. avos hatuma 5:12) If semen which can render impurity exited the woman's body during the 7 clean days, the day in which it exited does not count towards the clean days(Rambam hil.issurei bia 6:16). (I believe that 72 hours is based on the viability of the sperm, which I believe is consistent with current scientific knowledge.)
    The custom cited by the shulchan aruch to wait 4 days, is to account for cases of intercourse on the day the menstruation began as 72 hours can be on the 4th day. Ashkenazic practice to wait 5 is to account for bein hashemashot. In practical terms, most of the time women don't stop bleeding too long before that anyway.
    Your suggestion of abolishing the 5 day wait is independent of the 7 clean days, although would become automatically irrelevant would the 7 clean days be abolished.
    I cannot recall a suggestion that there was an anatomical distinction between the blood of ziva and nidda. The distinction is solely based on whether it is according to cycle or irregular.

    As for your doubts as to whether the women accepted the chumra of 7 clean days, I think that if you doubt the gemara's statements about which halachot/customs were accepted by the people at the time, you are going to have to reconstruct halacha virtually ex nihilo.
    Also, you would be required to learn how to count yemei nida and ziva and even more difficult you would need to establish which shades of red are truly tamei and which are only because of chumra. Because, you can only start counting the 7 days when true dam tamei is seen.

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  31. 1.It is 5 days before (not after) the 7 clean days.

    2. The 7 days in the Torah for regular niddus are not 7 clean days, but 7 days (inclusive) following the beginning of menstruation. Whereas, for zava (loosely defined menstrual bleeding not within the range of a regularly scheduled period), seven clean days (not inclusive) following the cessation of bleeding are required (for zava gedola).

    to be continued

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  32. continued:

    3. There is no source suggesting that semen stays in the body for 5 days.
    (In fact Sephardic tradition according to the shulchan aruch is only 4 days. And according to some rishonim, although not accepted in normative practice today, it is not necessary to wait 5 or 4 days).
    Actually it is based on the halacha that semen which exits the body within 72 hours of its entry renders the woman temea. It can theoretically exit after that, but it does not render her temea.(Rambam hil. avos hatuma 5:12) If semen which can render impurity exited the woman's body during the 7 clean days, the day in which it exited does not count towards the clean days(Rambam hil.issurei bia 6:16). (I believe that 72 hours is based on the viability of the sperm, which I believe is consistent with current scientific knowledge.)
    The custom cited by the shulchan aruch to wait 4 days, is to account for cases of intercourse on the day the menstruation began as 72 hours can be on the 4th day. Ashkenazic practice to wait 5 is to account for bein hashemashot. In practical terms, most of the time women don't stop bleeding too long before that anyway.
    Your suggestion of abolishing the 5 day wait is independent of the 7 clean days, although would become automatically irrelevant would the 7 clean days be abolished.
    I cannot recall a suggestion that there was an anatomical distinction between the blood of ziva and nidda. The distinction is solely based on whether it is according to cycle or irregular.

    As for your doubts as to whether the women accepted the chumra of 7 clean days, I think that if you doubt the gemara's statements about which halachot/customs were accepted by the people at the time, you are going to have to reconstruct halacha virtually ex nihilo.
    Also, you would be required to learn how to count yemei nida and ziva and even more difficult you would need to establish which shades of red are truly tamei and which are only because of chumra. Because, you can only start counting the 7 days when true dam tamei is seen.

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  33. @ Shimon S - When you use the word "soul" you mean something else than when ancient religious literature is using it. Their soul is completely meta-physical and religious concept.

    On the contrary, OUR notion of soul is metaphysical. Theirs was physical, based on the two primary physiological indicators of life:

    1. Breathing (Neshama) - from neshima, breath.
    2. Blood-flow (Nefesh) - like it says "the blood is the nefesh".

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  34. Sorry if I am late to the party, but this post brought to my mind a few news stories I saw in the past year.

    One is the story about the "first true cyborg" http://www.thezeitgeistmovement.com/joomla/index.php?option=com_kunena&Itemid=99999&func=view&catid=6&id=308442

    It is a robot controlled by a rat brain which is no longer attached to a rat.

    The second is a story about conjoined twins which share a brain and thus share eyesight.

    http://www.channel4.com/programmes/bodyshock/episode-guide/series-21/episode-1


    So, I have two points to bring up.

    If a person's brain were to be replaced with a computer, so that the rest of the body functions and stays alive (hearts, lungs etc.) Would you still consider that person dead? It seems to me that the only reason we are tied to "brain death", is because we do not yet have the technology to build artificial brains, or to do brain transplants. (But for how much longer?)

    Secondly, in the case of the conjoined twins, if you believe that the soul is in the brain, then are they really just one person? Or are they two people as their parents believe them to be?

    In my opinion, the nefesh of a person is not fully contained in any one organ or part. If there is a piece of the nefesh associated with the arms and legs, then if they were to lose those limbs, they would be missing those parts of their soul.
    It is also my belief, that this is a small part of the reason why a Kohen can not be a mum in the temple.

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  35. " If you amputate a person's arm, is the person halachically there? Of course. "

    Why do you say "Of course"? I believe there are very strong halachic ramifications for a person to lose a limb in what they are now required to do, and what they are not required to do. Some might even say that it would be appropriate to get a new name. And certainly, that limb needs to be buried properly and can not be cremated or the like.

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  36. If a person's brain were to be replaced with a computer, so that the rest of the body functions and stays alive (hearts, lungs etc.) Would you still consider that person dead?

    Yes, and so would everyone else.

    If there is a piece of the nefesh associated with the arms and legs, then if they were to lose those limbs, they would be missing those parts of their soul.

    If that were so, then receiving an organ from a non-Jew would be problematic. To my knowledge, most Poskim do not believe that to be the case.

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  37. Asking me (or yourself, or anyone) "at what point is the person not there?" means that you are asking for the person's (my, your, etc.) subjective assessment as to when his/her identity ceases. This assumes that one's "feeling" as to when the sense of identity ceases has anything to do with a halachic definition of death. Where do you get this from?

    Well, basic reason is good enough for me, but if you want something more than that, the halachos of transplantation and conjoined twins demonstrate it.

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  38. Is it coincidental that Chief Rabbi Lord Sacks has now come out against organ donations altogether?

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  39. Daniel - thanks for the reply. Yes, I meant 5 days before, not afterwards. (Apologies, I was writing swiftly.)

    You wrote that most women dont stop bleeding till after the 5 days anyway. I dont know if this is true, but assuming it is - isnt that only relevant for zavah purposes, not niddah? For niddah purposes you simply count 7 days from the onset of blood, not the cessation. And so my question is - and it is only a question, I am far from an expert - if there is no such thing as zavah, whence the need to keep ANY days beyond 7?

    In part this question is prompted be in my entire life I have never heard anyone adequately explain what zav or zavah is. The common explanation for zav is "half cooked semen" which still only begs the question. Shimon S, above, provided a medical word. But is it any diffrent than mere variations of the ordinary menstrual cycle?

    As for the notion of semen remaining in the female body for 72 hours - I really wonder. In Niddah 34 (or thereabouts) the Gemara leaves it as an open halachic question if semen deteriorates in jewish women at the same speed as it does in gentiles. The reason for the legal question is b/c possibly it deteriorates quicker in Jews b/c they are desirous to do mitzvahs and hence they are more "heated", or possibly gentiles, b/c they consume "shekatzim and remashim" are equally as heated. I mean, come on. What does one do with a Gemara like this?

    Again, I will concede I am no expert at all, and will willingly say that the members of chazal who studied this area, despite living so long ago, would have accumulated much knowledge. But there are countless passages in Niddah which even a layman like me can tell you are flat out in contradiction to modern science.

    Lastly, I of course recognize that questioning the supposed universal acceptance would require us to re-examine the entire halachic system. You're right, that in a nutshell is the problem any thinking man has to deal with.All of us are more or less comfortable within various niches of observant lifestyles, and appreciate the good within leading a halachic life. None of us want to throw the baby out with the bathwater like the reform did. But at what point to the countless inconsistencies, outright errors, outdated thinking, mistaken practices make one say "enough"? The conservatives tried to find the medium and failed. Does that mean anyone who wants to keep the core of traditional judaism must resign himself to keeping onbviously mistaken beliefs, merely out of fear of the slipperly slope?

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  40. Daniel - thanks for the reply. Yes, I meant 5 days before, not afterwards. (Apologies, I was writing swiftly.)

    You wrote that most women dont stop bleeding till after the 5 days anyway. I dont know if this is true, but assuming it is - isnt that only relevant for zavah purposes, not niddah? For niddah purposes you simply count 7 days from the onset of blood, not the cessation. And so my question is - and it is only a question, I am far from an expert - if there is no such thing as zavah, whence the need to keep ANY days beyond 7?

    In part this question is prompted be in my entire life I have never heard anyone adequately explain what zav or zavah is. The common explanation for zav is "half cooked semen" which still only begs the question. Shimon S, above, provided a medical word. But is it any diffrent than mere variations of the ordinary menstrual cycle?

    As for the notion of semen remaining in the female body for 72 hours - I really wonder. In Niddah 34 (or thereabouts) the Gemara leaves it as an open halachic question if semen deteriorates in jewish women at the same speed as it does in gentiles. The reason for the legal question is b/c possibly it deteriorates quicker in Jews b/c they are desirous to do mitzvahs and hence they are more "heated", or possibly gentiles, b/c they consume "shekatzim and remashim" are equally as heated. I mean, come on. What does one do with a Gemara like this?

    Again, I will concede I am no expert at all, and will willingly say that the members of chazal who studied this area, despite living so long ago, would have accumulated much knowledge. But there are countless passages in Niddah which even a layman like me can tell you are flat out in contradiction to modern science.

    Lastly, I of course recognize that questioning the supposed universal acceptance would require us to re-examine the entire halachic system. You're right, that in a nutshell is the problem any thinking man has to deal with.All of us are more or less comfortable within various niches of observant lifestyles, and appreciate the good within leading a halachic life. None of us want to throw the baby out with the bathwater like the reform did. But at what point to the countless inconsistencies, outright errors, outdated thinking, mistaken practices make one say "enough"? The conservatives tried to find the medium and failed. Does that mean anyone who wants to keep the core of traditional judaism must resign himself to keeping onbviously mistaken beliefs, merely out of fear of the slipperly slope?

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  41. R'Noam,
    I use R' as an all purpose prefix *Reb, Rabbi..."
    KT
    Joel Rich

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  42. >>>> the answer is "when the halacha as transmitted by Chazal says so.

    Tom, could you be so kind and tell if you think that halakhah should reflect reality i.e. at least reality that our senses can detect?

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  43. "If that were so, then receiving an organ from a non-Jew would be problematic. To my knowledge, most Poskim do not believe that to be the case."

    I don't understand how this would be a problem any more than receiving a pig heart.

    However, if I remember correctly there were some rabbinical leaders (don't know if they qualified as poksim) who did object to such things.


    "If a person's brain were to be replaced with a computer, so that the rest of the body functions and stays alive (hearts, lungs etc.) Would you still consider that person dead?

    Yes, and so would everyone else."

    I'm sorry, but this is false. There is a wide ranging literature on the subject, dating back to the industrial revolution. For a less literary, but very compelling view on the subject you might try to find a few clips from "Caprica"

    There was also a very popular book a few years ago called "The Mind's I" which could be seen to argue against this point.

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  44. Reb Joel, if you are interested there are a number of medical articles available(and pretty intellegible to the layperson) discussing how death was determined in history and how that relates to the present discussion of 'brain death'. if you are interested, please email me and I will be happy to send them to you. noamstadlan-at-gmail-dot-com. the bottom line is that while we think the determination of death has been monolithic and absolute in the past, it has not been.

    in response to those who are having difficulty with the concept of the home of the soul: The reason I brought the example of the person that we gradually cut to pieces, is to demonstrate that no matter what you think about the soul, halacha l'maaseh, in the present day and age, you have to have a shitah that works regarding which parts of the human being need to be present in order for that person to be considered a living human being, and which parts dont have to be there. You may want to consider that part of the soul resides in the arms, or the legs, and I actually cant prove or disprove that statement. However, the question actually is more basic: is an otherwise intact person without arms and legs considered an alive human being? Please remember that, to paraphrase R. Michael Broyde, death is a label that we attach to a person or a collection of tissue when they no longer have the legal rights and responsibilities of an alive human being. Any definition of death should be able to address all TECHNICALLY POSSIBLE situations and produce coherent results. Even Rabbi Asher Bush, the chairperson of the RCA Va'ad Halacha, wrote in his paper that there is only one definition of death. Therefore you have to establish one definition, and apply it in all possible cases. I would submit that the definition that produces the most logically coherent results is probably the most accurate. These situations include the transplanted organs, the conventional determination of death, cases of possible 'brain death', transplanted heads(done in primates) and others. The situations involving splitting brains is theoretically interesting, but has not been done and may never be possible, so while it is of theoretical interest, I dont hink that it can be used as situation that needs to be explained by any theory.

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  45. Menachos 37a says:
    "Plemo inquired of Rabbi, If a man has two heads on which one must he put the tefillin?'

    ‘You must either leave', he replied, ‘or regard yourself under the ban (a form of excommunication placed on pain-in-the-neck, impudent disciples).'"

    Aren't we all playing the role of Plemo here?

    R' Slifkin addresses this gemara in Sacred Monsters:
    http://books.google.com/books?id=_1fdxxS26RYC&pg=PA207&source=gbs_toc_r&cad=4#v=onepage&q&f=false

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  46. You missed the continuation of the Gemara!

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  47. " The situations involving splitting brains is theoretically interesting, but has not been done and may never be possible, so while it is of theoretical interest, I dont hink that it can be used as situation that needs to be explained by any theory."

    Well, there is currently alive 1 or 2 3/4 year old girl(s) who share a brain. At some point we will know more about how much they share, when they begin to be able to talk properly. Can they hear eachother's thoughts? Does that make them a multiple personality disorder patient, or two people sharing one brain?

    On top of that, you have many scientists playing with brains and minds and what they are able to do without a body, and conversely what bodies are able to do without organic brains.

    What was once the realm of pure science fiction / speculation is now becoming reality. It seems to me like these topics aren't so hypothetical anymore. It almost reminds me of some years ago, when we asked the Kashrut expert regarding Sushi, and his response was "What type of Jew eats Sushi!?"

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  48. DF,

    I'm not sure what you mean but "Zav" and "Zava" are clearly defined in halacha. We can try to match those descriptions with modern medical terminology.

    So yes, "Zava" can be described as abnormal or irregular menstrual bleeding, and "Zav" as an abnormal penile discharge.

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  49. Elemir - my understanding of halacha is that it is a logical construct that relates to but is not synonymous with physical reality. For example: ger she-nitgayer ke-katan she-nolad dami. If a non-Jew and his sister both convert to Judaism, there is no issur ervah min ha-Torah. They are not halachic siblings, even though they are biological siblings. Another example: the Rambam states that there is absolutely no difference between dam nidah and dam zivah except the timing of appearance of blood. The same menstrual blood in one month may be considered nidah and in the next month zivah, depending on the timing. The physical reality is the same; the halachic reality is different.

    Now when it comes to a definition of death, you can (subjectively) argue that you think "X" is death, or "Y" is death, based upon a physical notion that appeals to you. This is what R. Slifkin has tried to do here. Whatever definition you arrive at, even if there were total consensus among every biologist in the world - would not NECESSARILY mean that the halachic definition must conform. Every single biologist in the world would agree that the previous non-Jewish brother and sister were siblings, and every posek would agree that they are not (halachically, min ha-Torah). Every biologist would agree that the regular menstrual blood this month and the next month are identical, and every mefaresh of the Rambam would agree that (halachically) they are not.

    The point is that halacha has its own axioms, postulates, rules, etc., which are defined by God and explained via Chazal, and they NEED NOT conform exactly to physical reality.

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  50. DF,

    Thanks for your reply.
    1. Correct the five days is irrelevant on a Torah level for a niddah who is not a zava.
    2. The Torah itself defines zava as "בלא עת נדתה או כי תזוב על נדתה". In other words bleeding not during or beyond her regular cycle. (The mishna defines the exact parameters for determining that.) So, it is not correct to say that it is a concept based on an incorrect scientific notion that there is a physical difference in the blood. The torah did not suggest that.

    3. Of course, there are statements in the Talmud that do not conform to current medical knowledge regarding menstruation and other things. That is a major focus of this blog. Each issue that affects practical halacha can be dealt with in a number of ways, discussed on this blog. However, the existence of zava is not one of them.

    4. You referred to the gemara's question in nidda 34b. Again, it seems that you are confusing the viability of semen with semen remaining in the body. The gemara's axiom is that semen no longer imparts tum'a when it is no longer viable (i.e. cannot fertilize).
    The gemara assumes that this is up to 72 hours. The gemara cites a question which it leaves unanswered i.e. is this also true for semen in a gentile woman? The gemara explains that the question is: do there bodies have a different temperature either due to a different diet or due to less anxiety?
    The gemara assumes that heat will shorten the lifespan of sperm (I think that we can agree to that).
    In the end the gemara is not able to determine this. And it certainly doesn't make a difference in our day to day (or month-to-month) lives.

    5. I never wrote:
    "most women dont stop bleeding till after the 5 days anyway".
    I wrote: "In practical terms, most of the time women don't stop bleeding too long before that anyway."
    In any case that just minimizes the practical difference of observing the 5 days anyway.

    6. You are correct that if there were no such thing as zava then there would be no reason for 7 clean days, but the tora's definition of zava still exists.

    7. I agree with your general sentiment about re-examining the halachic system vs. mistaken beliefs. However, I think that you are being too presumptuous regarding the reliability of the sages report about a stringency accepted by women.

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  51. >>>> The point is that halacha has its own axioms, postulates, rules, etc., which are defined by God and explained via Chazal, and they NEED NOT conform exactly to physical reality.

    First, thank you for your clear response.

    So then the discussion boils down to the following question.

    Is what you are saying true and was that the normative Jewish belief in the last 2000 years OR
    (as I believe and I think Rabbi Slifkin does as well) did khazal make an effort to conform halakha to reality as best as was possible under the knowledge of the day and we are forced to struggle on a case by case basis of what to do with laws that were promulgated under incorrect “reality”/science.

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  52. >>>> The point is that halacha has its own axioms, postulates, rules, etc., which are defined by God and explained via Chazal, and they NEED NOT conform exactly to physical reality.

    I actually agree with that, and I think that bishul is a good example. But in some cases the halachah was based on Chazal's understanding of science.

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  53. Daniel (and to a lesser extent, Shimon S.) - Good discussion. I wish we could have this discussion ba'al peh. It loses a lot beksav. I am trying to convey clearly my doubts about the concept of zav and zavah, and I guess I'm not coming through. But you make some good points.

    Agav, there are a lot more strange things in masechet Niddah that do not conform to medical science, and I wonder why RNS or indeed others do not seem to address them. Like Levi's view that the source of blood for the first 7 days affter childbirth is a completely diffent source from the blood that comes afterwards. And many other statements. [i'm talking strictly halacha here; if we included aggadic statements the list could be multiplied.]

    Perhaps it's bc niddah is generally not well known, or possibly because most men really dont know [or want to know] about female anatomy.

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