Over at Hirhurim's Symposium on the Ethics of Brain Death and Organ Donation, Rabbi Yaakov Weiner of the Jerusalem Center for Research: Medicine and Halacha, concludes his article with the following sentence:
While medical technology has changed, the definition of death remains constant and we have to turn to our mesorah, halachic sources and our gedolim to determine which signs today demonstrate that a person’s soul has left his body.
Echoing a similar view as to who is an authority on such matters, Dr. Leon Zacharowicz made the following proposal:
I suggested... setting up a ‘yarchei kallah’ type program on this sugya, similar to the yarchei kallahs I’ve helped Rabbi Weiner run in Jerusalem and around the world since 1998. These chavrusa-style learning programs have included shiurim by some of the most renowned halachic authorities and experts worldwide, including (partial listing): Rabbi E. Blech, Rabbi Y. Breitowitz, Rabbi Mordechai Eliyahu ztl, Rabbi Zalman Nechemiah Goldberg, Rabbi Jacobowits, Rabbi Kaufman, Rabbi Simcha Bunim Lazerson, Rabbi David Morgensten, Rabbi Yehoshua Neuwirth, Rabbi Hershel Schachter, Rabbi Dr. Avraham Steinberg, Rabbi Moshe Sternbuch, Rabbi Mordechai Willig, Rabbi Yitzchak Zilberstein, and others... Why not learn these sugyas in depth, “inside,” with the sources, and then have a chance to hear what the major poskim have to say? One can then, in an appropriate fashion, raise questions, make suggestions, and hear what the poskim have to say.
Here lies the crux of the problem. There is a vast epistemological gulf which separates the worldview of those who reject brain death as death and those who accept it. It revolves around the following question: What qualifies someone as an expert to determine whether brain death is death?
For people with a charedi worldview (and note that you don't have to be charedi to have a charedi worldview - but it helps!), the answer is as Rabbi Weiner presented it: the Gedolim are the experts. Dr. Zacharowicz included the YU Gedolim in his list, but the idea is still the same. Those who have achieved greatness in Gemara and halachah are (a) automatically qualified to have an opinion on the topic, and (b) are the most (and effectively only) qualified people to have an opinion on it.
But there is a different view.
As noted in several previous posts, there are a few problems with a conventional reliance on Chazal, Rishonim and Acharonim in tackling the topic of brain death. One is that these sources just don't address it. If you have a charedi worldview, you are likely to fail to acknowledge this, and still seek to make (unwarranted) inferences from earlier halachic sources in order to address it. But if you have - dare I say it - a rationalistic worldview, you will acknowledge that the Gemara in Yoma 85b is just not going to determine the halacha for brain death. The same goes for other sources, as I shall demonstrate in a future post.
Another problem with a conventional reliance on Chazal, Rishonim and Acharonim in tackling the topic of brain death is that one has to be familiar with the scientific worldview of these sources. It's not just a matter of being aware of modern science (the importance of which is acknowledged by many Poskim) - it's also a matter of being aware of ancient science, and being able and willing to understand the statements of Chazal, Rishonim and Acharonim in light of that.
There are also other differences in worldview between rationalists and non-rationalists which affect one's conclusions in this area. I'm not just talking about questions such as to what extent is the nature of the soul a metaphysical matter, and to what extent a scientific matter. I am also referring to more general and fundamental differences, with regard to questions such as to what extent can one take initiative and be innovative, to what extent can one trust one's own evaluations, and other issues relating to rabbinic authority. This is similar to how Orthodoxy post-Chasam Sofer had a different approach to halachah than traditional Judaism pre-Chasam Sofer. It's not a matter of "right" versus "wrong," but it is two very different approaches, and someone who subscribes to one need not automatically accept the authority of someone who subscribes to the other.
Thus, to say that Poskim who have achieved greatness in Gemara and halachah are automatically qualified to have an opinion on the topic of brain death, is something which non-charedim would (and should) challenge. And to say that people who have not achieved renown as Poskim are not qualified to give opinions on this matter is likewise something which non-charedim would (and should) challenge.
I personally know three physicians who I think are extremely qualified to have opinions in this matter. They are not considered Poskim. Yet they are extremely learned in Shas and halachah - particularly in the area of medical halachah. Of no less importance is that they are knowledgeable not just in modern medicine, but also in the history of medicine, which means that they have a better understanding of Chazal, Rishonim and Acharonim. (For example, they understand that when Rashi says to check the heart, his intent is to check for respiration, not pulse.) And also of no less importance in my eyes is that they are capable of analyzing issues methodically, rationally and comprehensively - more so than some of those renowned as Gedolim in both charedi and non-charedi circles.
(Note that Rabbi Broyde comments that "Nearly every person I respect as a Torah scholar of substance who is also well trained in the sciences supports the view that Jewish law ought to accept brain stem death when combined with respiratory failure, notwithstanding the opposition to this view by many eminent poskim." And a well-known physician who specializes in Jewish medical issues told me that virtually every frum doctor he knows accepts brain death as death - and that the few who do not are all charedi.)
All this reminds me of the Torah-Science controversy. For some people, it was obvious that the Gedolim were vastly more qualified than me to have opinions on Torah-science topics. And for others, precisely the reverse was true. It is important to recognize that these reflect fundamentally different worldviews. It is also important for rationalists not to make the mistake of unthinkingly adopting the charedi view that only Gedolim are qualified to have opinions and thereby to argue that there are other Gedolim too - although sometimes this may be a strategic move.
For further reading, see my posts Who is an Expert in Science? and Who is an Expert in Torah?
In other news: Don't forget that this Sunday, I am giving two lectures in Washington Heights; you can download the flyer at http://www.zootorah.com/Locations/BridgeShul2.pdf. Books will be available, at a discount.
Plus: My lecture tour ends Monday, and I will have a blowout sale on any remaining books. You can place your order now, and I will fill them on a first come, first serve basis; if there are no books left, I will refund your money. See www.zootorah.com for descriptions of the books, but order them here for the discount:
The Challenge of Creation, Sacred Monsters, Perek Shirah: Nature's Song, and Man & Beast - each book is $27 including shipping anywhere in the US.
Set of all four books - $95 including shipping anywhere in the US.