Sunday, February 20, 2011

Are You Sick of Brain Death?

Are you sick of the brain death controversy? You're not alone. For a variety of reasons, many people just don't want to hear any more about it. Many of the leading poskim and medical experts already spent a lot of time on this issue many years ago and they are burned out from it. Other people are at the opposite end of the spectrum - they've never gotten into the topic, believe it to be too late to become knowledgeable about it, and are just waiting for it to blow over.

I only have a few posts left on this topic, but they are important. Aside from the fact that this is very much a matter of life and death, I have come to realize that it is a pivotal topic for rationalist Judaism. So, interspersed with other topics that I will be writing about, there will be some very important posts about the relationship between the topic of brain death and other aspects of Jewish thought.

23 comments:

  1. As much as you connect the issue of brain death with rationalist Judaism, I think it is important to make clear that the two do not necessarily go hand-in-hand. A person can be a modern rationalist Jew (even in the extreme) and still be not be convinced by brain death (and vice versa too). While I understand your claim that many people disagree with brain death criteria because of their lack of rationalism, I don't think that accepting rationalism necessarily leads one to conclude with 'brain death' or to find your arguments as fully convincing (although I'm sure it will make them more open to your ideas). I think this is an important point to make, because even though a rationalist may be more likely to accept the brain death criterion, the two are still completely distinct topics. I would worry that if you make them appear to be more connected than they actually are, you will be doing a disservice to Rationalism; it will scare some people away from rationalism, and will make rationalism even more susceptible to attack (even though it is actually distinct from rationalistm). It should be made clear that although it is your rationalist perspective that allows you to view the issue the way you do, the conclusions that you have drawn are your own, not that of "the rationalists".

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  2. Agreed, the two do not necessarily go hand-in-hand, but there are nevertheless areas of interaction, as I shall explain.

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  3. Imho if anything the debate up until now should make it clear that there are unresolved meta issues as to how to extrapolate normative halacha and that the furtyer away we get from the original sources (without a sanhedrin function)the greater the divergence of results.
    KT
    Joel Rich

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  4. My Tai Chi teacher, an accomplished acupuncturist and herbalist, once told us a story about a legendary doctor whose name escapes me. This man was on a journey when he came to a river on the banks of which he encountered a beautiful and beautifully dressed woman. She evidently wanted to cross, but couldn't. He offered to carry her over, but she would have to sit on his shoulders. He took her wrists to steady her, and as he carried her he was taking her pulses. (In the Chinese system of pulse reading, it is expected that each of the 12 pulses will have more or less prominence and different qualities depending on the time of day; this is superimposed over seasonal variations and trends depending on age and gender, even before illness is factored in.)
    Anyway, he noted that all of her pulses were the same, by which he knew that she wasn't human but some sort of divine personage. He stopped in the river and threatened to drop her in unless she taught him the secrets of medicine.
    She did so, and also gave him a number of scrolls containing these secrets.
    Unfortunately, none of his students were worthy of receiving the full transmission of this knowledge, and so it began to be lost, and some of the scrolls were lost. And so it went, generation after generation. This all explained why the Chinese medicine we have today is only a shadow of what it once was, and theoretically could be.


    Such works as Biblical and Talmudic Medicine or Medicine in the Bible and Talmud and so on do not describe a medical system with an organized way to think about the phenomena that confront a doctor as much as they show an aggregate of unrelated things to try.

    So, if there ever was such a Jewish system, it was not recorded or was otherwise lost and not transmitted to us.

    But then what? I have a clinical bent. I'm willing to believe כולא בה even down to the knowledge needed to be a doctor, but if the current transmission of our mesorah doesn't tell me how to elucidate the Torah to tell me what I must do in clinical practice, then I'm compelled to seek the knowledge elsewhere or else רפוא ירפא is meaningless.

    Or, perhaps there never was such a system, and, like today, Jewish doctors were always compelled to seek the knowledge elsewhere and were either within or reacting to the local/contemporary medical system(s) (or, perhaps if they were folk healers, largely ignorant of any system at all.)

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  5. If your arguments are going to continue to fall along the lines of hairsplitting about different nefashos, per the Ramban, for instance, you had better jettison the rationalist approach to this. In fact later kabbalistic/chassidic writings discuss issues of the location of the soul, the seat of consciousness, in greater detail, and it would be an incomplete analysis to ignore these sources.

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  6. The brain death issue should only be an issue based on a rationalistic approach. There are those who try to combine the mesorah with science. That woould, seemingly be people like Rabbi Shechter and Rabbi Willig that leave it as a safek chai safek maves because they see chazal as saying something and modern medicine being unclear as per chazal's explanation of what death is. And there are those like Rav Gedalia Shwartz and Rav Tendler who paskin that Brain death is death because it DOES fit chazal's explanation of death.

    Why on earth would anyone listen to a Rabbi that says modern science should be thrown out and we should just analyze what chazal say? That is ludicrous and against the Gemara. There are so many situations where we see, IN THE GEMARA, that Rabbanim consult the doctors of their day. Whether the medicine of the day is completely right or wrong it is THE ONLY UNDERSTANDING WE HAVE! Therefore, since Lo Bashamayim Hi, we have to make do with what we know and pasken based on that. That is why chazal said an 8 month old is not allowed to be saved on shabbos, but a 7 month old is, because the science of their day showed that to be "true." This whole attitude of science is wrong so ew don't use it denies everything found throughout Gemara, Rishonim and achronim.

    However, the argument between people who actually look at all the information is what matters. Some hold that modern science proves beyond a reasonable doubt that the brain dead person is dead according to our understanding of chazal;s definition. However, others hold it is a safeik whether science proves that to be the case.

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  7. The brain death issue should only be an issue based on a rationalistic approach. There are those who try to combine the mesorah with science. That woould, seemingly be people like Rabbi Shechter and Rabbi Willig that leave it as a safek chai safek maves because they see chazal as saying something and modern medicine being unclear as per chazal's explanation of what death is. And there are those like Rav Gedalia Shwartz and Rav Tendler who paskin that Brain death is death because it DOES fit chazal's explanation of death.

    NONE of those people are using the rationalist approach. The rationalist approach realizes that the Gemara couldn't possibly say anything on the topic either way!

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  8. Interestingly enough my Rabbi's shalushudus drash was on keeping a clear logical focus when discussing abortion and end-of-life (brain death) issues.

    No halachic (or scientific) discussion whatsoever just pretty good exposition on what are the true issues, and what are distracting side issues.

    I always wonder where and why picks his topics... maybe he reads this blog?

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  9. If that's true then how is one to make a psak halacha except to say it is not death because it is not dictionary-plain-as-anything- death? Your way makes for no leniency for ambiguous cases. You have gone from arguing for autonomy of science in Judaism to showing a less than clear familiarity with the boundary between autonomy and psak halacha.

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  10. "NONE of those people are using the rationalist approach. The rationalist approach realizes that the Gemara couldn't possibly say anything on the topic either way!"

    If what you say is true, then why don't you start with a less controversial issue like using electricity on Shabbat, or flying across the international date line, or any of the other modern inventions that were created in the past 100 years in which we have absolutely no sources to discuss them?

    This would be much more demonstrative of the key points of rationalism then an emotional topic like life/death issues.

    And if the principle doesn't apply to those other categories of modern technology that I discussed, please explain why this one does, but those don't.

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  11. NONE of those people are using the rationalist approach. The rationalist approach realizes that the Gemara couldn't possibly say anything on the topic either way!

    The Gemara can and does say things about death. That's why there is an argument! If the Gemara had said nothing, the nature of the arguments on brain death would be very different. Conversely, if the Gemara defined death as being, for example, "too weak to walk" or some other criterion? Then current argument would be even more strident as we would try to reconcile even more divergent opinions.

    IMHO, the challenge is the role of mesorah in light of modern knowledge. We apply principles as opposed to an "emunah shelaima" (lehavdil) to every opinion stated by every Rabbi over the past two millenia. Respect? Yes. But not necessarily agree.
    We also understand that despite tremendous advances in science, much of halacha doesn't change. All the biochemistry in the world will not make chazer kosher. All the changes in social mores will not make adultery permissible. All of physics in the world will not make carrying on Shabbos mutar...but a string on two poles will.

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  12. "NONE of those people are using the rationalist approach. The rationalist approach realizes that the Gemara couldn't possibly say anything on the topic either way!"

    Of course chazal discuss death. They just don't mention anything in depth. That is why we have Rabbis today, to extrapolate upon these subjects, but the basis is in the Gemara.

    For instance, electricity did not exist, so chazal could not have talked about it outright. However, modern day poskim apply chazal to electricity. How? Because they say that electricity is the same as fire and relate electricity to the fire that existed in chazal's time. Or they say it is not fire and one is completing the circuit and being over the malacha of boneh.

    Whatever the case, THE FOUNDATION for the halacha is always found in chazal, or it is a minhag.

    Rav Moshe feinstein applies chazal to so many modern halachas like artificial insemination. If you read through his teshuvas he quotes numerous chazals.

    I agree that chazal do not discuss modern issues outright, but modern poskim are suppose to extrapolate from their words to apply them to modern cases.

    Some poskim refuse to apply chazal to modern times and just say chazal talked about everything, that is absurd. However, chazal should be applied to the constantly changing world. If we can save someone by means that were not available (like the 8 month fetus) chazal would, of course, be extrapolated to say that we save the 8 month fetus.

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  13. E-man, there are some cases that are so novel that you just can't find anything halachic in Chazal from which to draw conclusions. Surrogate IVF is one example; brain death is another.

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  14. Rabbi, I disagree. True, many things are novel and chazal never discussed them. However, chazal's principles can and are always applied to any ruling. If you look into surrogate IVF you will see poskim using foundations of chazal for saying why the surrogate is not considered the mother or why she is. To say that chazal don't say ANYTHING on the subject is a mistake, in my opinion. They do not explicitly talk about many things, but like I said before, modern day poskim apply their principles to all areas of halacha.

    I am not claiming chazal actually discuss these things, but their principles are applied to everything, in the orthodox world.

    This is rationalist orthodox judaism. If you don't apply chazal's principles to everything, then how are you orthodox and not just reform or conservative? That is what defines orthodoxy or neo-orthodoxy, applying chazal and the Torah to every law. If I am wrong please explain.

    If we can't apply chazal to modern situations then how can we make modern laws?

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  15. Here is an article that shows how chazal are considered when reviewing halacha as per what the halacha should be: http://www.jlaw.com/Articles/maternity3.html

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  16. However, chazal's principles can and are always applied to any ruling.

    You can apply anything to anything if you are creative enough. You can even use Star Wars. But that doesn't mean that these sources genuinely resolve the question.

    Determining whether BSD is death requires sources that correctly differentiate between the function of the heart and the function of the brain. It is impossible for Chazal to have discussed any such thing.

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  17. If you don't apply chazal's principles to everything, then how are you orthodox and not just reform or conservative?

    What on earth do you mean? The answer is obvious - because we follow Chazal for all halachos that they ruled upon or which can be extrapolated from them!

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  18. "Determining whether BSD is death requires sources that correctly differentiate between the function of the heart and the function of the brain. It is impossible for Chazal to have discussed any such thing."

    In the end of the day, modern science still does not understand absolute death. In fact, I was reading in scientific American magazine that there are experiments being performed on rats where they implant human glial cells into their brains. In this article they mention that they have no idea where human consciousness starts. It could be that this glial cell is enough to make a person aware that he or she is trapped in a rat's body.

    The point I am trying to make is that modern science can not give us a definitive point in time when a person stops having consciousness. However, chazal hint to this idea based on different rulings in the Gemara (when we have to violate shabbos to save someone and when we don't and etc). Therefore, in halachic terms, we can't just say science says this and what science says is the ultimate truth, because science admits to having a deficit. However, using chazal's definition of death we can either say brain death fits the criteria or not.

    Science can't tell us if someone who is brain dead has no consciousness, but it can tell us that this person can not breath on their own, nor will they ever regain full consciousness. That can then be applied to what chazal tell us about death.

    Without chazal, we couldn't define anyone as definitively "dead" because modern science doesn't really fully understand consciousness.

    "What on earth do you mean? The answer is obvious - because we follow Chazal for all halachos that they ruled upon or which can be extrapolated from them!"

    What subject can we not extrapolate chazal to be talking about? Electricity is extrapolated on. Brain death IS extrapolated on (just ask Rav Tendler and Rav Shwartz). Surrogate mothers are also extrapolated on. I can't even think of a subject that the PRINCIPLES of chazal are not applied to that subject.

    For example, space flight. Chazal do not talk about it. However, one must keep shabbos in space. This was a question when some years back a Jew was going into space. He was not religious, but the questions till came up. When the subject was discussed, people were bringing principles from chazal to say what they thought.

    Obviously, things that chazal do not talk about are more open to debate and therefore will lead to many more opinions on the subject, but the basis for any halachic rulings come from chazal's stance on a subject. I mean, this is how I have seen any Rabbi tackle any question whether it be Rav Moshe on Artificial insemination or Rav Tendler on Brain death.

    Do you have any examples of where chazal do not mention anything on a subject and some Rabbi just makes something up based on modern science?

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  19. I disagree with the point of view repeatedly expressed by R' Natan that the criterion for the assumption of death used by the sages is made irrelevent by the modern understanding of the human organism. The talmud, T.B. Yoma 85a, uses absence of respiration as the determinant of death (even the view that the heart or torso can be used for detecting life if encountered first is, presumably, also based on a respiration criterion). Now, we don't accept simple cessation of breathing as death since we now have means of resuscitating such victims if activated in time. However, the combination of established whole brain death (including the brain stem) and the concommitant cessation of spontaneous breathing satisfies both the talmudic and medical definition of death. Instead of disregarding the talmudic working definition of death, we should and do incorporate it into a modern criterion. This then becomes another example of adapting talmudic prescriptives into a modern understanding of life and the world.

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  20. But you can't possibly deduce from Yoma what Chazal would have thought about someone who is breathing via a respirator. In the case that Chazal described, someone who was breathing was fully alive, and someone who was not breathing was fully dead.

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  21. "But you can't possibly deduce from Yoma what Chazal would have thought about someone who is breathing via a respirator."

    Is there any basis to use "common sense" here (I'm not being sarcastic, just trying to rationally approach this problem)?

    For instance:
    There are some individuals, who due solely to weakness of the respiratory muscles, are unable to breath for themselves. Individuals with advanced ALS (Lou Gehrig's disease) often fall into this category. In the overwhelming majority of cases, these individuals are cognitively completely aware of what's happening to them. In fact the brain, and brainstem, are hardly involved in this disorder at all.

    My common sense tells me that chazal would not deem a person with advanced ALS, otherwise fully conscious (on a respirator), as having died based on their inability to respire, even though THIS PERSON WILL NEVER RECOVER THIS ABILITY. Maybe I'm wrong, but it seems absurd to assume otherwise. Unfortunately, we are left to speculate why they would consider him alive, if this is true. Because he's conscious? What if we put him in a pharmacologic coma? Is he dead yet? Alright, what if he has a stroke that puts him in a persistent vegetative state, but not in a coma--dead yet? What about a permanent coma, but with no destruction of the brain-stem?

    This sort of morbid thought experiment highlights the challenges we face with these definitions. This probably underlies the tendency to ascribe only "complete" liquefaction of the brain the label "anatomic decapitation."

    OTOH, why should complete destruction of the brain be necessary? Cardiac cells may continue to function for a period of time after the pump itself has completely failed. Nobody advocates complete cellular death as a prerequisite for cardiopulmonary death. Why not apply a similar line of reasoning to the brain? Determining the boundary line, however, where we say the brain has effectively ceased to function as a brain, vis a vis talmudic definitions, appears difficult, if not impossible.

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  22. R' Natan, the intervention of a device, namely a respirator, is no different, in principle than mouth-to-mouth breathing. In both cases, the victims lungs are artificially inflated and pressurized, while the exhalation is simply a mechanical relief of the excess pressure. The latter technique was certainly available in talmudic times, yet there is no suggestion in the talmud that it be tried before pronouncing the victim to be dead. Clearly, the possibility and ability to resuscitate someone who had stopped breathing is something that the sages would have considered miraculous. I fully recognize that the sages had no inkling of modern advances in maintaining and restoring life. Nonetheless we are required to use such life-saving techniques since we can, and we have the biblical imperative of "lo ta'amod al dam reiacha". My only point was that the cessation of breathing can be used today to declare someone dead - as was the case in talmudic times, provided that it is coupled with the more definitive cessation of brain function. My view is that harmonizing the statements of the sages with modern knowledge is an important approach to halachic development - if it can be done reasonably. The alternative is to either ignore advances in human knowledge or to discard many halachot that don't appear to be consistent with our knowledge of the world.

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  23. Rabbi Slifkin,

    The issue is not just whether Chazal can be mined for their latent views on Brain Death. The issue is also whether today's Poskim can determine whether Chazal or any source can be used to decide Halacha on brain death. You feel no at least as far as Chazal although you are being seemingly arbitrary as electric appliances were also not used. The point is the Poskim will decide. If enough rule that Chazal can be mined for a Psak Halacha so that it can be said that "the Acharonim rule such and such" your arguments will make no difference. Save your arguments for scientific automony in Judaism for Hashkafa, not Halacha. Sometimes the boundary there is blurry too but at least there you are arguing for the existence of what I feel is a real boundary.

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