Sunday, May 8, 2011

Was Chasam Sofer Actually Correct?

The responsum of Chasam Sofer regarding the delayed-burial controversy is probably the most-discussed and analyzed of all his responsa (see one recent example here). Yet, amazingly, it seems that nobody has ever discussed the most basic question: Was he correct?

Background: In the eighteenth century, there was widespread fear that people were being buried alive due to doctors mistakenly diagnosing them as dead before they had actually expired. (I strongly recommend Dr. Jan Bondeson's riveting book, Buried Alive, for an extensive history and analysis of this fear.) Due to these concerns, the Duke of Mecklenburg decreed that the allegedly deceased should be kept under watch for three days before burial.

Moses Mendelssohn reacted with a two-pronged approach. In a letter to the Duke of Mecklenburg, he argued that the Jews should not have to abide by this requirement. And to the Jewish community, he argued that it was not problematic to abide by it. Claiming precedent from a Mishnah, he argued that the absence of respiration is not conclusive evidence that a person has died, and thus one should wait to be certain.

A similar case arose a few years later, regarding whether a kohen could be the doctor to examine a corpse and certify that death had taken place. R. Tzvi Hirsch Chajes ruled that it was permissible, invoking arguments similar to those of Mendelssohn, that the absence of respiration did not conclusively mean that the person was dead and thus the doctor could potentially be saving a life. Chasam Sofer, on the other hand, firmly opposed the idea that a person who was not breathing could be considered even doubtfully alive. He famously wrote that "even if all the winds in the world were to blow against us, we would not move from the determination of death established by Chazal."

Today, we know that the concerns about being buried alive, so widespread in the eighteenth century, were largely misplaced. They stemmed from the fact that corpses, during the process of putrefaction, do strange things, including making noise and changing position. It is thus easy for people to assume that Chasam Sofer was altogether correct in his opposition to accepting the recommendation of physicians. But was he inherently correct in his approach, or just fortunate that the physicians happened to be mistaken?

According to Chasam Sofer, from where did Chazal derive their determination of death? He presents three possible sources. One is that it was derived from a Scriptural exegesis; another is that it was received as a tradition from Moses at Sinai. But the first, primary suggestion of Chasam Sofer is that it was learned by Chazal from ancient non-Jewish physicians!

Now this raises an obvious question. If Chazal's determination of death came from the gentile physicians of antiquity, why shouldn't people in the 18th century rely upon contemporary physicians who assert that the allegedly deceased may still be alive and should not yet be buried? All Chasam Sofer says with regard to this is to say that Chazal relied upon the verse of "Lo Sasig Gevul Re'acha Asher Gavlu Rishonim" - that we follow the ancients in scientific matters. Now, that is invoked in the Gemara on Shabbos 85a regarding agricultural matters. But, given the notion of scientific progress, it is extremely difficult to justify - and to say that it applies to life-and-death situations is astounding!

As discussed on a previous occasion, Rav Shlomo Zalman Auerbach (in Shulchan Shlomo, vol. II) notes that despite Chasam Sofer’s famous declaration that all the winds in the world will not sway us from following Chazal’s ruling that a person who is not detectably breathing is considered dead, new techniques in restoring respiration result in it now taking longer to determine that respiration has irreversibly ceased, and thus the determination of death has certainly effectively changed since the times of Chazal (and indeed, even the idea of respiration having irreversibly stopped is a change from Chazal’s definition). Even today, in cases of people who have overdosed on certain medications and then suffered exposure to extreme cold, respiration cannot be detected even if they are still alive. In such a case, physicians would not permit burial; instead, they attempt to gradually restore bodily functions, sometimes successfully—and it seems unlikely that any halachic authority would object. Likewise in the case of the 8-month fetus, regarding which Chazal said that Shabbos may not be desecrated since (unlike a 7-month fetus) it has no chance of survival; no Posek says that one must follow Chazal's reliance on medicine due to Lo Sasig. Note that R. Avraham Portaleone (d. 1612), author of Shiltei Gibborim, requested that his corpse be watched for three days before burial, and freely admitted that this was following a different approach than that of his ancestors (see here).

With regard to matters of life-and-death, poskim never usually rely on Chazal's reliance on the medical opinion of antiquity. Nobody invokes Lo Sasig! The question thus remains as to why Chasam Sofer saw fit to ignore the medical opinion of his day. Was he convinced that they were mistaken — or did it have more to do with Mendelssohn’s suggestion that the traditional Jewish practice of immediate burial could be changed to accommodate the new scientific discoveries, and with the fact that the Duke was led to his decree by an anti-Semitic convert to Christianity, Olaf Gerhard Tychsen?

Today, we have the luxury of knowing that the eighteenth-century concerns were misplaced (which is, I think, the reason why people make the mistake of thinking that Chasam Sofer was altogether correct). But back then, they had no way of knowing that. A study of Bondeson's book shows that they had grounds to be concerned. Chasam Sofer's firm opposition to accepting their recommendations is astounding, especially in light of his own suggestion that Chazal themselves derived their determination of death from gentile physicians. And, as Rav Shlomo Zalman points out, the idea that we rely on Chazal in such situations is simply not true. It seems similar to Maharam Schick's opposition to any compromise on metzitzah b'peh (see here) - something primarily motivated by incipient Orthodox concerns rather than the ordinary halachic arguments.

There are clear implications for those who base their verdict regarding brain-death on the Chasam Sofer.

21 comments:

  1. To me, one of the most interesting things about this debate is the fact that Mendelssohn's grave specifically states that he was buried the day after he died. See http://upload.wikimedia.org/wikipedia/commons/a/ae/Juedischer_Friedhof_Berlin-mitte_2.jpg

    ReplyDelete
  2. I heard first hand testimony about a woman waking up while they were burying her. This was in eastern Europe around 1930. Apparently this was not just an imagined problem.

    ReplyDelete
  3. Olaf Gerhard Tychsen was not a convert.

    I think that as medicine was still pretty primitive, it was fairly easy to not be altogether impressed with early modern science. There weren't any successful neonatal surgeries in 1820.

    ReplyDelete
  4. didn't they used to bury people with a rope inside the coffin attached to a bell??

    ReplyDelete
  5. "Likewise in the case of the 8-month fetus, regarding which Chazal said that Shabbos may not be desecrated since (unlike a 7-month fetus) it has no chance of survival; no Posek says that one must follow Chazal's reliance on medicine due to Lo Sasig."

    Why choose those cases and not the converse, stronger,examples. There are cases where chazal ruled that Shabbos must be suspended for pikuach nefesh where we pasken not to (i.e. we are not even choshesh for their scientific opinion). One example is heating water on the third day after the bris. The beis yosef and rama both pasken not to (although the beis yosef implies some time of nishtaneh hatevah apologetic).

    ReplyDelete
  6. elemir: Indeed so. See http://www.snopes.com/horrors/gruesome/buried.asp . I remember this was a plot point in "The Great Train Robbery."

    ReplyDelete
  7. saved by the bell!
    kt
    joel rich

    ReplyDelete
  8. I think it is not astounding that the Chasam Sofer was protesting against a change at all. You would have had to argue that there should be a change of practice for what? Based on some fears because of some cases we were to argue that we cannot define death until an arbitrary three day waiting period? That's not really scientific. Do we do that today. There was a baby who was declared dead and the mother held the baby for a long time just because she wanted to hold it and it breathed again like an hour after being declared dead.

    ReplyDelete
  9. thanks nachum, i'm calling up my local chevra kadisha and updating my order.

    ReplyDelete
  10. R' Natan, would you kindly post the language of the Chatam Sofer that includes the point about the sages deriving their definition of death from contemporary medical knowledge, and that one may not change that definition based on modern medicine because of "lo ta'asig"?? Such a viewpoint is sufficiently astonishing that it requires more verification.

    ReplyDelete
  11. Y. Aharon - it's linked right at the beginning of the post. The relevant section is at the bottom of the first page.

    ReplyDelete
  12. By the way, to those who voted "kefirah" on this post - I'd be interested to hear where you think I'm mistaken, and why.

    ReplyDelete
  13. But, given the notion of scientific progress, it is extremely difficult to justify - and to say that it applies to life-and-death situations is astounding!

    Who says the determination of death was considered a purely scientific matter? It makes more sense that it was considered a metaphysical matter with physical manifestations.
    Once you appreciate this overlap, it is not all all mysterious that the determination of the ancients--who were more spiritually sensitive--have more authority in this matter, despite the advancement of science.

    ReplyDelete
  14. With regard to matters of life-and-death, poskim never usually rely on Chazal's reliance on the medical opinion of antiquity. Nobody invokes Lo Sasig!

    That's because those are purely issues of medicine and biology-- not metaphysical issues of the soul departing.

    The question thus remains as to why Chasam Sofer saw fit to ignore the medical opinion of his day. Was he convinced that they were mistaken — or did it have more to do with Mendelssohn’s suggestion that the traditional Jewish practice of immediate burial could be changed to accommodate the new scientific discoveries,

    This is probably where some people saw the kefirah in your post. You are assuming that the Chasam Sofer was being deceptive about his true motives behind his views.

    The Chasam Sofer in the end of this very teshuvah states clearly what the "objective" halachic norm is supposed to be about a kohen allowed to verify a death in order to allow burial--because it is a meis mitzvah, but he withheld stating that ruling because of meta-halachic considerations--also based on explicit statements in the Talmud itself--making it a halachic norm of its own.

    Furthermore, you are suggesting the possibility that the Chasam Sofer was ignorant of an explicit mishna in Maseches Shabbos which is fully cognizant that corpses move and open their mouths after death:

    http://he.wikisource.org/wiki/%D7%9E%D7%A9%D7%A0%D7%94_%D7%A9%D7%91%D7%AA_%D7%9B%D7%92_%D7%94

    ReplyDelete
  15. Who says the determination of death was considered a purely scientific matter?

    Chasam Sofer. He suggests that Chazal got the determination from the gentile physicians. Didn't you read the post?

    ReplyDelete
  16. You are assuming that the Chasam Sofer was being deceptive about his true motives behind his views.

    I have another post coming up about the unpublished follow-up letter from Chasam Sofer in which he is explicit that he has meta-halachic considerations operating here which cause him to misrepresent the halachic situation.

    ReplyDelete
  17. Rabbi Slifkin, the Chasam Sofer was not going against the sciencer of his day. People were being declared dead the same day. He was ruling concerning a concern some felt (pun not intended). It would be analogous to if some would say today to wait some days because of some cases that still exist of being declared dead only to be shown alive. How many rabbis would say we have to change standard practice for the majority of Jews or even how many Gentile physicians for their patients just because of concern in some cases?

    ReplyDelete
  18. He suggests that Chazal got the determination from the gentile physicians.

    That doesn't mean it's a purely scientific matter. The expertise of physicians of antiquity was not limited to materialistic causes and effects. It extended into the realm of the emotions and spirit.

    which he is explicit that he has meta-halachic considerations operating here which cause him to misrepresent the halachic situation.

    Well that doesn't sound to me like he's being deceptive at all! He's telling you upfront that he is guided by "meta-halachic considerations" (which I'll bet are derived directly from the Talmud-- making them bona-fide "halachic considerations".)

    And you haven't responded to an explicit mishna in Shabbos which discredits your theory.

    ReplyDelete
  19. Rabbi Slifkin, the Chasam Sofer was not going against the sciencer of his day.

    Sure he was. Have you read the medical literature?

    How many rabbis would say we have to change standard practice for the majority of Jews or even how many Gentile physicians for their patients just because of concern in some cases?

    If it was concern about a tenth to a quarter of cases (as they viewed it back then), I think that most rabbis would change standard practice.

    ReplyDelete
  20. That doesn't mean it's a purely scientific matter. The expertise of physicians of antiquity was not limited to materialistic causes and effects. It extended into the realm of the emotions and spirit.

    (a) Nonsense.
    (b) That wasn't Chasam Sofer's claim at all.

    Furthermore, you are suggesting the possibility that the Chasam Sofer was ignorant of an explicit mishna in Maseches Shabbos which is fully cognizant that corpses move and open their mouths after death:

    No I'm not.

    ReplyDelete
  21. "There was a baby who was declared dead and the mother held the baby for a long time just because she wanted to hold it and it breathed again like an hour after being declared dead."

    We do better today:

    http://www.neurology.org/content/76/2/119.abstract?sid=3b61d4bf-16a1-49dc-b859-3da74de7e082

    From the abstract:


    Methods: We reviewed data for 1,229 adult and 82 pediatric patients pronounced brain dead in 100 New York hospitals serviced by the New York Organ Donor Network from June 1, 2007, to December 31, 2009. We reviewed the time interval between the 2 clinical brain death examinations and correlated this brain death declaration interval to day of the week, hospital size, and organ donation.

    Results: None of the patients declared brain dead were found to regain brainstem function upon repeat examination. The mean brain death declaration interval between the 2 examinations was 19.2 hours.

    ReplyDelete

Comments for this blog are moderated. Please see this post about the comments policy for details. ANONYMOUS COMMENTS WILL NOT BE POSTED - please use either your real name or a pseudonym.