Friday, February 11, 2011

Rav Shlomo Zalman's Mistake - UPDATED

(The following post should not be misconstrued as expressing a lack of respect towards Rav Shlomo Zalman Auerbach, ztz"l. I lived around the corner from him for several years, spoke with him on a few occasions, and I have tremendous respect for him. He was justly renowned not only for his incredible knowledge, wisdom and saintliness, but also for his breadth and open-mindedness. Yet "open-mindedness" is a relative term, and he was nevertheless a product of the charedi world.)

In Shulchan Shlomo (vol. III p. 24) it records that for a long time, Rav Shlomo Zalman Auerbach categorically rejected the notion that brain death constitutes death. His reasoning was based on the Gemara in Erechin 6a, which states that if a pregnant woman dies, there is no chance of survival for the fetus. With a pregnant woman who suffers brain death, on the other hand, the fetus can survive. Hence, Rav Shlomo Zalman deduced, brain death is not death.

Yet there is no basis for this derivation. One simply cannot draw any inferences from this Gemara to brain death, which is a radically different scenario from anything that Chazal could have had in mind. When the Gemara says that a dead woman cannot deliver a live baby, this was merely describing the reality of 1500 years ago and it surely has no bearing whatsoever on the modern question of whether brain death is death. The fact that Rav Shlomo Zalman drew such inferences demonstrates how Poskim are accustomed to drawing halachic conclusions from the Gemara even when there is no reason to do so - i.e. when the Gemara is not remotely useful in addressing a novel, modern situation.

Now, some people at this point will be hopping mad, and will be wondering how I could possibly be so brazen as to say that Rav Shlomo Zalman was using the wrong methodology. But he eventually admitted it himself! Shulchan Shlomo notes that this was after being presented with the report of an experiment in which a pregnant sheep was decapitated and its body maintained with a respirator. The baby lamb was successfully delivered via C-section. Everybody agrees that a decapitated sheep is dead, and yet its baby survived. Rav Shlomo Zalman therefore noted that today, we have the ability to maintain certain bodily systems even in the absence of others, and thus Chazal's criteria no longer apply. He thus acknowledged that he had been mistaken in thinking that the Gemara about a pregnant woman's death could be used to resolve the contemporary question of brain death.

Rav Shlomo Zalman's own eventual conclusion about brain death was that although complete cellular death of the entire brain is indeed considered death, brain-stem death does not clearly qualify as such. However, the point that I want to bring out is that even Rav Shlomo Zalman made the mistake of using a traditional, Talmudic-halachah based approach, when others would have recognized from the outset that this is entirely inappropriate in such a case (as did I, as soon as I read about Rav Shlomo Zalman's deduction from the Gemara about a pregnant woman, even before I discovered that he retracted). It is especially significant that it was Rav Shlomo Zalman who did this - as I noted last week, Rav Shlomo Zalman himself acknowledged that there are no precedents in the Gemara for drawing halachic conclusions about cloning. But his recognition of that with something as novel as cloning did not mean that he recognized it as also being the case with determining the moment of death.

It is unfortunate to have to draw attention to the error of such a great person. But such misguided approaches to resolving the question of brain death are, tragically, all too common - and since it is a matter of life and death, it is important to be aware of the tendency to make such mistakes.

UPDATE - I just read the discussion of Rav Shlomo Zalman's view in the RCA document. They stress that there was no retraction on the halachah of brain death, just a withdrawal of one of the arguments that he formerly presented. The impression that I received from Shulchan Shlomo was quite different - that this was his primary argument, and that as a result of the sheep experiment, he modified his view somewhat from categorical rejection of brain death to stringent concern that brain-stem death might not equal complete brain death.

Furthermore - and most significantly - the RCA document suggests that due to various reasons, the sheep experiment is not analogous to the Gemara's case, and that cases where pregnancy continues despite brain death caused by stroke or cancer are analogous and do indeed demonstrate that brain death is not death. But this is exactly the same sort of mistake that Rav Shlomo Zalman admitted to making. The Gemara is not talking about a case of a person who is brain dead and has their body maintained via a respirator - such a situation was beyond the imagination of anyone back then, and no inference can be brought from the Gemara for such a case. One can make a reasonable argument that the fact of a brain-dead woman being able to grow a baby within her indicates that brain death is not death - but one cannot draw this conclusion as a halachic inference from the Gemara.

21 comments:

  1. Cesarian delivery of infants from "dead" mothers was well known and practiced in antiquity. When Chazal stated that the that the fetus of a dead mother could not survive, what were they talking about?

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  2. based on the Gemara in Erechin 6a

    You mean Erechin 7a.

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  3. Raphael, cesarian delivery of dead women was maybe possible in ancient times but only minutes after the death of the women. And the pregnancy had to be advanced enough to allow for a cesarian.

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  4. Excellent presentation.

    Raphael,
    look at the gemara itself in Arachin 7A.
    The gemara says that if a woman in labor dies on shabbos, one should take a knife and cut open her belly to extract the fetus. Rashi there explains, because sometimes the fetus will live. Whereas, the case cited earlier in the gemara (which this blog post is discussing) is relying on the common case i.e. that the fetus will die first in the case of natural death, and therefore the paternal brothers of the fetus do not inherit the dead mother's property through the fetus, as we assume the fetus was already dead when the mother died.

    Also, in the case of a pregnant women who was executed the gemara there says that the women will die first.

    So,Raphael the gemara explicity referred to posthumous Cesarean delivery, however recognized that in the case of natural death it was unlikely to be successful.

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  5. I see a problem hereFebruary 13, 2011 at 10:02 PM

    Two points:

    But his recognition of that with something as novel as cloning did not mean that he recognized it as also being the case with determining the moment of death.

    1) Your illustration about RSZA's retraction proves the exact opposite of what you are trying to argue from the cloning admission.
    We see that even in the not-so-novel issue of halachic death, RSZA was able to (ultimately) recognize a limitation in halachic analogies from the talmud to modern medical realities.

    The fact that he goes on to use other talmudic sources as conclusive on this same issue shows that he was very conscious (pun intended) of the pitfalls you raised and found halachic analogies even with those limitations in mind.

    (I think its obvious that you don't need Chazal to have known about a respirator in order to find a relevant source/analogy on this issue in the talmud. There is such a thing as halachic creativity, you know.
    You can legitimately point out difficulties with the analogies that poskim make, but you can't say categorically that there can be no relevant halachic sources in the talmud in principle)

    2)
    He was justly renowned not only for his incredible knowledge, wisdom and saintliness, but also for his breadth and open-mindedness. Yet "open-mindedness" is a relative term, and he was nevertheless a product of the charedi world.)

    You claim to have tremendous respect, but it is painful to see you are still employing stereotypes. I prefer biographical knowledge of the man instead of sweeping generalizations in order to delegitimize an ideological opponent.

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  6. Less than a month ago I attended a shiur given by Rav Moshe Tendler in Jerusalem on brain stem death (BSD). He strongly attacked the RCA document. He confirmed that after the pregnant sheep experiment Rav Shlomo Zalman confirmed to him personally and also wrote in a responsum to someone who asked him (an American dentist, if I recall correctly; I did not note the name) that he agreed that BSD is death, only that in Israel he cannot trust the doctors to follow exactly the protocol of tests to determine BSD. He showed a slide of the responsum, which was typed but signed by the Rav.
    Danny Levy, Jerusalem.

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  7. YA says:If you are not going to have a Halacha based approach to decide the Halacha here then it is no use arguing that it is a life death situation as far as organ donation. It is only then a matter of saying that the person could still be considered alive in Halacha. Using your approach forget about any organ donation discussion to begin with.

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  8. The fact that he goes on to use other talmudic sources as conclusive on this same issue

    No, he doesn't. He concludes that it can't be proved from the Gemara.

    You can legitimately point out difficulties with the analogies that poskim make, but you can't say categorically that there can be no relevant halachic sources in the talmud in principle

    I think you can. The only way that a halachic source could be relevant would be if it differentiated between the nervous system and the respiratory system, or something like that.

    I prefer biographical knowledge of the man instead of sweeping generalizations in order to delegitimize an ideological opponent.

    I wasn't saying that he was a product of the charedi world to delegitimize him; I was saying it to account for why he took this approach.

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  9. If you are not going to have a Halacha based approach to decide the Halacha...

    I honestly do not understand your comment at all.

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  10. Natan Slifkin said...
    If you are not going to have a Halacha based approach to decide the Halacha...

    I honestly do not understand your comment at all.

    February 14, 2011 7:09 PM

    I was saying that if one cannot look at the Halachic sources as the source for deciding brain death in Halacha then we would be forced to rule strictly that brain death at least is not for sure death.

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  11. Why? And by the way, Rav Shlomo Zalman ultimately ruled that complete brain death is death. I don't think that he based this on any specific Gemara, but rather on reason. Though I will have to check this.

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  12. I see a problem hereFebruary 14, 2011 at 10:37 PM

    I was saying it to account for why he took this approach.

    Yes. An approach which you characterized as relatively "open-minded" which you put in quotation marks.
    The clear implication was that due to his being a product of the chareidi world, RSZA was not as open-minded as you believe necessary in order to render a competent decision on the matter.
    That is delegitimization via stereotype.

    Please own up to your attempt at delegitimization through stereotyping or retract it.

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  13. You've got it the wrong way round. My reason for believing that he didn't take the right approach is that he didn't take the right approach - as he himself conceded! Now, the question is as to why he made this mistake - which he himself admitted was a mistake. The explanation is that he was a product of the charedi world.

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  14. Natan Slifkin said...
    Why? And by the way, Rav Shlomo Zalman ultimately ruled that complete brain death is death. I don't think that he based this on any specific Gemara, but rather on reason. Though I will have to check this.

    February 14, 2011 7:41 PM

    He ruled that it would have to be complete brain death down to the last cell and it was based on consideration of a chopped off head meaning that in Halacha the person is dead. His reasoning is really just that short of a chopped off head we need something of similar unequivocal impact on the head. The result is he ruled against brain death as it is actually considered in certainly most every case (barring I suppose exploded or imploded heads). This was not based on no Gemorah but rather on the fact that a chopped off head is considered in Halacha to be a sign of death.



    His rulings are on pages 40-41 in the below document of the RCA


    http://www.rabbis.org/pdfs/Halachi_%20Issues_the_Determination.pdf

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  15. In that sense, all advocates of BSD would agree. They consider that BSD is effectively the same as cutting off the head. But this isn't an inference from the Gemara in the same sense as the attempt with the pregnant woman.

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  16. Natan Slifkin said...
    "Why?"

    Because you need a basis in Halacha to decide what death is in ambiguous cases. We can't just reason independent of a framework of law. You may argue a rabbi has done it but to the rabbi's mind it has to be that you are wrong. A parallel to American law would be a judge that would claim the Constitution can be ignored would be violating his or her oath. We may argue a judge has ignored the Constitution but to the judge's mind we must be wrong.

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  17. The reliability of diagnosing BSD varies according to different countries.
    According to wikipedia,The diagnosis Of BSD in Britain would not be valid in the USA.
    Probably why It's(Britain's)Chief Rabbi is opposed to BSD=Death in his country.(but he might say it is OK in the USA,i don't know)
    As Danny pointed out in an earlier comment RSZA wrote to a doctor
    that he agreed that BSD is death, only that in Israel he cannot trust the doctors to follow exactly the protocol of tests to determine BSD.

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  18. "Regarding ruling strictly on the question of brain death, Natan Slifkin said...
    "Why?""

    I would presume that the concept of safek d'oraisa lchumra would apply here, as the fundamental issue is whether or not the organs can be extracted from a "brain dead" patient, without it being considered murder.

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  19. I think you'll want to read the latest Discover Magazine article on brain death: http://www.ebay.com/itm/Discover-May-2012-The-organ-harvest-proceeded-/180856999125

    I think you might dismiss some of the reporting, but I can't imagine anyone dismissing all of it.

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  20. Of interest: http://www.jewishideasdaily.com/4987/features/the-brain-death-wars/

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  21. I don't care what background you give. Your headline and comments are really disrespectful to Rav Shlomo Zalmen Zatzal

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