Monday, February 27, 2012

Why Lice Are A Matter Of Life And Death

I'd like to interrupt my rejoinder to Rabbi Bleich's article in order to explain why this is so important. After all, in general my policy is not to engage in extended critiques of those who have not done so to me. But in this case, it's literally a matter of life and death. And I mean "literally" literally.

Brain death and organ donation is a matter of life and death. If brain death is not death, then to take organs from a brain-dead person is murder. But if brain death is death, then to refrain from taking organs from a brain-dead person is needlessly allowing several other people to die.

Most people do not pasken this question for themselves; instead, they follow their Poskim. But the problem is that poskim on this issue are usually implementing a non-rationalist approach. For people in the charedi world, this is any case usually their own preferred approach. Non-charedim, on the other hand, will follow a posek such as Rav Bleich. Because he writes with sophisticated English (and Latin), has academic credentials, publishes in Tradition, and teaches in YU, these people assume that he reflects their own approach to Torah and Judaism and their own epistemology. But Rabbi Bleich's ruling against organ donation is fundamentally resulting from the same non-rationalist approach that makes him refuse to accept that Chazal mistakenly believed in spontaneous generation.

Rabbi Bleich's methodology for paskening brain death and organ donation is based upon drawing inferences from Chazal, Rishonim and Acharonim. But this only makes sense if Chazal, Rishonim and Acharonim dealt with the relative significance of the neurological and cardiopulmonary systems, and understood the roles of each. Only then could we determine whether they believed life to depend upon the action of the heart or the action of the brain.

But Chazal, Rishonim and Acharonim did not and could not have dealt with the relative significance of the neurological and cardiopulmonary systems. For until very recently, the systems were inseparable. There was no such thing as being brain-dead but having your heart still beating. And furthermore, even if Chazal, Rishonim and Acharonim were to have dealt with the relative significance of the neurological and cardiopulmonary systems, this would be hampered by the fact that they mistakenly believed significant components of the mind to be housed in the heart.

Someone who acknowledges that Chazal only possessed the limited scientific knowledge of their era will (hopefully) take this into account. But if someone believes that Chazal could not have been mistaken about scientific matters - as demonstrated by their refusing to accept that Chazal mistakenly believed in spontaneous generation - then they will refuse to consider that brain death cannot be resolved via drawing inferences from the statements of Chazal.

Recently, a new book was published on brain death and organ donation, entitled "Defining the Moment: Understanding Brain Death in Halakhah," which bears an enthusiastic endorsement from Rabbi Bleich. On a post at the Hirhurim website regarding the launch of this book, I asked the author the following question:

It seems that all those who wrote haskamos, and whose positions you discuss, take the approach of paskening this question directly from the Gemara and earlier poskim. Applying this methodology of psak is in turn is based on two presumptions: that Chazal differentiated between the nervous system and the cardiopulmonary system  – and that they correctly understood the role of each. Do you discuss the nature and validity of these presumptions in the book?

I posed this question to the author twice, and despite the fact that he was responding to other comments, he did not respond to my question. My guess is that he'd never thought about it, and is uncomfortable with it. I don't blame him for his discomfort.

If you accept that all the Rishonim, Acharonim and contemporary non-fundamentalist Talmud scholars are correct in understanding Chazal as describing spontaneous generation, and you accept that spontaneous generation has been adequately disproved, you should not be following a ruling regarding being an organ donor from someone who does not acknowledge these points, or who does not incorporate them into his analysis of the issue.

68 comments:

  1. I remember Rabbi Bleich saying once, "Life begins in the gonads, and ends with the decomposing body in the grave." This was in an informal gathering years ago, but his words made an impression. I think that he appreciates the difficulty and importance of the question of organ donation.

    As you write, Rabbi Bleich bases himself on Chazal and the poskim. But I think he is well-informed about brain death, at least from a comprehensive legal standpoint.

    I understand your discomfort with his projecting modern scientific understanding back onto Chazal, but that is hardly unprecedented.

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  2. There is no question that he appreciates the difficulty and importance of the question. And I'm sure that he is well informed on the topic. But that is irrelevant to my point. My point is that his methodology for reaching a ruling is based on an anti-rationalist approach. Of course that is hardly unprecedented. But that doesn't make it acceptable.

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  3. I think that begs the questions:
    Who are the contemporary poskim of note who are willing to admit mistakes in Chazal's science ? And who were they in generations pasr? Not in essays and letters but in written (or verbal but documented) teshuvos, And did it change their psak?

    If you can't name any, then what is the impact of your criticism? The criteria you mentioned have simply not become part of the halachic discussion, it doesn't implicitly devalue his discussion unless there are others who have incorporated the factors you mention.

    Where is the Rationalist Medical Halacha blogger when we need him ( or her)?

    Eric

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  4. As observant Jews we have to try and make these life or death decisions based on what we think God wants us to do. In the case of brain death it would appear that God's will is unclear and difficult to determine. Could we therefore rationally deduce from this that whichever view we ultimately decide to apply, as long as we have applied sincere effort in reaching that conclusion, will be the right decision. In simpler terms, if one side was clearly better surely God would have made reaching a conclusion easier.

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  5. Who are the contemporary poskim of note who are willing to admit mistakes in Chazal's science? And who were they in generations pasr? Not in essays and letters but in written (or verbal but documented) teshuvos, And did it change their psak?

    Past poskim: Rav Yitzchak Lampronti, Rav Yitzchak Herzog. Contemporary: Rav Hershel Schechter (sometimes).

    Where is the Rationalist Medical Halacha blogger when we need him (or her)?

    It's a him. I've been begging him to get back to it, but he's really busy.

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  6. Could we therefore rationally deduce from this that whichever view we ultimately decide to apply, as long as we have applied sincere effort in reaching that conclusion, will be the right decision.

    Probably not. Besides, I don't think that denying facts due to personal discomfort counts as sincere effort.

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  7. … brain death cannot be resolved via drawing inferences from the statements of Chazal.

    That doesn’t sound like it will help much; with no basis for such an inference, how can one possibly decide what the true Torah definition of death is? And without such definition, how can a responsible posek decide?

    Argument from first principles and using pure reason sounds nice, but I watched the Rationalist Medical Halacha blogger do that with the abortion issue and was not satisfied with his conclusion. Is this life-and-death issue one of pure shikul hada‘as with no actual grounding in halacha at all?

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  8. First of all, even if it were true that there is no way to resolve it, that would not justify resolving it the wrong way.

    But there are ways of resolving it. Some are discussed at rationalistmedicalhalachah; I have an essay in the works dealing with other approaches. Also, there are two books being published which deal with it.

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  9. RNS,

    First, RHS sides with R' Bleich on this issue.

    Second, can you provide an example of R' Bleich's flawed methodology with respect to brain death. It is not sufficient to state that his anti-rationalism leads him to ignore modern science in his analysis of the halacha. You need to show how and where.

    If you believe that halacha is fixed after the Talmud, then this debate is purely theoretical. In fact, Bleich is probably being more honest in his analysis of the Talmudic texts.

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  10. the other issue the hypocrisy of not allowing organ donation when someone is brain dead, however having no problem taking an organ that was taken from a brain dead person.

    If one feels taking an organ from a brain dead is murder. then how can one take an organ from that was taken from a person who was murdered just so you can have their organ.

    it does seem to be the ultimate chupzhu

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  11. "First, RHS sides with R' Bleich on this issue."

    That's why I said "sometimes."

    "Second, can you provide an example of R' Bleich's flawed methodology with respect to brain death."

    I did in the post. I will elaborate in more detail in a future post. I've also written about it in the past.

    "If you believe that halacha is fixed after the Talmud, then this debate is purely theoretical."

    It's not fixed in cases of pikuach nefesh. That's why we break Shabbos to save 8-month babies.

    "In fact, Bleich is probably being more honest in his analysis of the Talmudic texts."

    How so, exactly?

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  12. "But in this case, it's literally a matter of life and death. And I mean "literally" literally."

    "Who are the contemporary poskim of note who are willing to admit mistakes in Chazal's science?... And did it change their psak?

    "Past poskim: Rav Yitzchak Lampronti, Rav Yitzchak Herzog. Contemporary: Rav Hershel Schechter (sometimes)."


    I don't understand. You've collected a smattering of Poskim past and present who support your approach Lehalacha Le'maasah, and now R Bleich's approach is 'not acceptable'?! Don't you realize matter of life and death cuts both ways?

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  13. I don't understand. Why does the fact that the rationalist approach to Chazal/science is unfortunately rarely found in recent times, a reason why the non-rationalist approach is correct?

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  14. "I don't understand. Why does the fact that the rationalist approach to Chazal/science is unfortunately rarely found in recent times, a reason why the non-rationalist approach is correct?"

    I don't understand how a blogger can go against virtually the entire halachic community on the basis of a few blog posts. Do you not believe at all in ther role of a Posek? (Especially since as you noted, R Bleich has no particular axe to grind with you.)
    At the very least, write a Teshuva or something. Or find someone like your mentor R Adlerstein to back you. With all due respect, you're a bit young and uneducated to be going up against someone like R Bleich! (Full disclosure: I'm 23 and have a high school diploma., so I'm aware of my place too.)

    Your stance brings to mind the Chinuch's concern about everyone doing their own thing because they're convinced they're right. it doesn't end good.

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  15. I think that I'm just as entitle to point out that the approach to brain death is wrong as I am to point out that the approach to spontaneous generation is wrong. If you don't want to listen to me because I'm only 36 years old, too bad. This forum is for people who follow Rambam's directive of accepting the truth from wherever it comes.

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  16. "With all due respect, you're a bit young and uneducated to be going up against someone like R Bleich!"

    Without getting into whether Rabbi Slifkin has a place for commenting on halachic issues (or whether he does damage to himself by doing so and/ or by not waiting 20 years to do so) - the age thing is just completely irrelevant. It's cosmetic, nothing more. And that's what I will adress.

    Here's an example which I think is relevant. In 1832 a man named Moses Ephraim Pinner approached the Chasam Sofer with his plan to translate the entire Talmud (and Rashi and Tosafos) into German. The idea was to counter an antisemitic translation which had already begun. The Chasam Sofer expressed skepticisim that one person could accomplish it. Pinner told him that he was not doing it alone at all, but he enlisted others to help him. As an example he supplied the name of R. Nathan Marcus Adler, who was then 29 years old and the rabbi of Hanover. The Chasam Sofer - who did not know R. Nathan Marcus Adler, but apparently knew of him - said, "Oh, if you're doing it in collaberation with someone like him, then I endorse it" and he wrote a haskamah. Unfortunately Pinner made up the part about Adler, and because of this deception and another reason the Chasam Sofer withdrew his haskamah.

    We would be mistaken if we think that this is the only important part of the story.

    Hello? Pinnner was 32 years old. Adler? He was 29. The translation was not a project of the gedolim. As soon as Pinnner claimed that Adler was part of it, the Chasam Sofer's skepticism faded. Pinner was asking the Chasam Sofer for support, but did the Chasam Sofer say "Which Daas Torah did the 29 year old Adler ask?" Of course not. He was a smart young rabbi with a good reputation, and because he was under the impression that a smart young rabbi with a good reputation was a part of this project, he himself agreed to it. Did the Chasam Sofer imagine or dream that it was brazen of a 29 year old to sign on to such a project? Evidently not.

    Age is overrated. If you want to argue that Rabbi Slifkin is out of his league in halacha, or does not have a good reputation, that's your prerogative. But there is no reason, other than the pragmatic, why he has to wait until he's 70 to talk about important things. בן שלשים לכח בן ארבעים לבינה. Wouldn't you say that he's too young at 40 also?

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  17. @shaul shapira:
    i might also add-"Al tistakel bakankan, ela b'meh sh'yesh bo. Yesh kankan hadash male yashan, v'yashan she'afilu hadash ein bo.

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  18. Keep in mind, S., that 29 and 32 years of age in a time when life spans were shorter would be more like 40 and 50 of today.

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  19. "Keep in mind, S., that 29 and 32 years of age in a time when life spans were shorter would be more like 40 and 50 of today. "

    No.

    I would keep in mind rather that today we do extend childhood. This is a fair rejoinder which I would accept as something to chew over.

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  20. R' Slifkin,

    I recall previous posts in which you subscribed to the notion that although Chazal were scientifically/medically wrong we are still obligated to follow the halachic outcome of their mistake.

    I don't know if you touched upon this in the past, but where is the line drawn? Just because Chazal's view of death doesn't jive with our medical knowledge, why are we allowed to disagree, halacha lema'aseh?

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  21. Pikuach nefesh trumps everything (except the 3 cardinal sins). That's why we are mechalel Shabbos to save a baby born after 8 months, even against Chazal's ruling.

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  22. Since when did Rabbi Slifkin become a Halachic RABBI he is a Zoologist and he should please stick to monkeys and elephants
    thank you

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  23. The question here is not whether you can be mechalel Shabbos to save an 8 month baby, it is whether you are killing someone when taking his organs in order to save someone else.

    How do we decide that Chazal's mistake should allow us to kill one person (in the eyes of Chazal) albeit while saving another?

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  24. We don't. In this post, I have not addressed how that question should be resolved. Here, I am just addressing how it should NOT be resolved.

    (Incidentally, the whole point is that you are NOT necessarily killing someone in the eyes of Chazal. You cannot possibly know if Chazal viewed such a person as being alive, because they never conceived of a person in such a state.)

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  25. aged,

    Please excuse me for saying this, but what you wrote makes little sense. How does extending life expectancy make a 25 year old today different than a 25 year old back then?

    Do you think our brains changed? Certainly our culture encourages/condones endless education and extended immaturity. However, not everyone follows the mainstream, and talented young people who are motivated and work hard can accomplish the same things (at least in an intellectual sense) that their forbears did at the same age.

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  26. "Since when did Rabbi Slifkin become a Halachic RABBI he is a Zoologist and he should please stick to monkeys and elephants"

    In fact, quite the opposite; he is a rabbi and not a zoologist.

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  27. Brain death is not analogous to an 8 month old baby. Hazal applied mistaken facts to the law of docheh shabbat. Whether or not an 8 month old baby can survive is a question of fact not law.

    What constitutes death is not a question of fact but a somewhat arbitrary point still in dispute.

    Let me give you an example in which science has changed but we still dont change the law even in a case of pikuach nefesh:

    Biologically, life begins at conception. This is not in dispute. We can detect brain activity (which, according to you, is all that matters) in a fetus way before 40 days prior to which the Talmud believed the fetus to be "mere water". We can further detect the sex of a baby way before 40 days. (Again, contrary to the talmud) Are you prepared to say that given scientific advances we will now be machmir and prohibit stem cell research?

    If death is determined by the cessation of brain activity, shouldnt we be consistent and at least say life begins at the formation of brain activity, much earlier than the Talmud thought?

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  28. The start of life is not the same as the end of life, because there is the added factor of potential.

    But it is relevant in that if one is incorrectly informed about the physical reality regarding the start of life, then the halachic conclusions are likewise compromised.

    So, for example, if one were to believe that a drop of sperm contains a tiny, fully-formed human being (as at least one authority believed), then this would obviously compromise the validity of one's halachic rulings regarding whether a drop of sperm is considered to be alive.

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  29. "Biologically, life begins at conception. This is not in dispute. We can detect brain activity (which, according to you, is all that matters) in a fetus way before 40 days prior to which the Talmud believed the fetus to be "mere water". We can further detect the sex of a baby way before 40 days. (Again, contrary to the talmud) Are you prepared to say that given scientific advances "

    You are mistaken. Yes, there are cells in existence before 40 days which will ultimately form the brain, but you cannot detect "brain activity" in any meaningful sense. Your emphatic declaration that life begins at conception is your own judgement, and, quite obviously, it is in dispute.

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  30. S> You're right, I'm mopre concerned with a relative novice with little experience in Psak taking on R J David Bleich. Here's what RNS publisher, R Gil Student, had to say about him:
    "R' J. David Bleich is, in my opinion, an unfortunately under-appreciated giant of our generation. He holds a PhD in Philosoephy, lectures on Hullin and other subjects to semihah students at Yeshiva University, is a co-head of a kollel for dayanus at YU, teaches at Yeshiva College and Cardozo Law School and is a world-renowned expert on bio-medical ethics. He is a walking encyclopedia of halakhah which, with his acerbic wit, makes him close to an Ashkenazic version of R. Ovadiah Yosef. Why he is not counted among the top posekim of this generation is beyond me.

    R. Bleich's regular column in the journal Tradition titled "Survey of Recent Halakhic Periodic Literature" demonstrates his breadth of knowledge and his depth of understanding."

    It's one thing to claim that R Elyashiv isn't aware of this or that fine theological point. That's not going to work here. It's one think quote the Rambam's view on allegory, it's another to call most of the Rabbinical establishment out of bounds because they don't pull the plug when you think they should.

    You can't beat on the Charedim about everything. R J. D. Bleich is a bit more open minded and wordly than the Chasam Sofer was.

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  31. "I don't understand how a blogger can go against virtually the entire halachic community on the basis of a few blog posts"

    I don't understand how a rabbi can go against the entire scientific community (I'm not exaggerating -- NOBODY in the scientific community would agree that there is any possibility that spontaneous generation occurs), reject the empirical basis of all modern science, and yet still be considered to be a reliable authority on matters related to science.

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  32. I think that Dr. Hall's comment neatly refutes Shaul Shapira's comment.

    I would add that to claim that the Gemara isn't even talking about spontaneous generation, as R. Bleich prefers, is to go against all Rishonim and Acharonim, as well as every non-biased interpretation of the Talmud (i.e. those without a vested interest as to whether Chazal were correct or not).

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  33. BTW, is there any way to read R Bleich's article without having to glean it through your rejoinders?

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  34. Slifikin states:

    "But if brain death is death, then to refrain from taking organs from a brain-dead person is needlessly allowing several other people to die."

    This is patently not true, the reasoning is as follows, if one believes that a person dies when God wants him to then if he was suppose to live he would live another way. No one dies needlessly if they didn't get an organ transplant. That was the will of God. In another few years they will have build a mechanical heart or grow it from cells and that person will live. Your application and reasoning of "saving a life" only applies in the next few years until they don't need to use "brain dead" as an excuse and will have an unlimited supply of mechanical hearts and petri dish livers and organs.

    Even if Chazal did not have the ability to distinguish practically between the neurological and cardiopulmonary systems, Chazal constantly dealt with the theoretical and improbable. They obviously did deal with it in Halacha even if it had no practical application at the time. There are spiritual reasons that the brain and heart are connected and for thousands of years until this century and in the next thousand of years your minor "rational" of saving a life was and will be moot. The Torah is infinite and immortal and there is a link between a brain that doesn't think but is working enough to support cell growth. It may be that neurologist haven't found the link yet but there could be one.

    Additionally, the rational that it is immoral to take but not to give is incorrect because it is a given that the person will be killed and if it is already being done there is no reason why you can't accept to recieve it instead of someone else.

    Chazal was born into their generation and passed on their knowledge - we need to incorporate it into Halacha so we are in synch with all previous and future generations. That is the only way we will be able to interact with the past.

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  35. EN, there is so much wrong with your comment, that I don't even know where to begin. In any case, it's clear that you're operating with a fundamentally different epistemology than the intended audience of this forum.

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  36. One has to wonder what folks like Rabbi Bleich would do if they were faced with a choice between their theoretical analysis and a real world choice of "killing" someone to get a heart for his loved one.

    In the U.S. there are no ramifications, other than moral, to one's position on this issue. Israel is about to make people put their lives where their ideals are. As of April 1 those with donor cards will get priority over those without.

    The early results are quite promising as huge numbers of Israelis have been signing up in the past few months.

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  37. And, yes, EN it IS immoral to accept if you won't donate. Especially if you believe that doing so is murder. Any nonsense about it being done anyway is fodder for all kinds of atrocities that humans have rationalized.

    Besides, I believe that in the case of organs that need to be transplanted from braid dead patients there is usually a one to one correspondence, ie the recipient is lined up before the organ is removed.

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  38. Abe,
    I did not state that life begins at conception. That is a moral statement. I said that BIOLOGICALLY, life begins at conception. That is a biological fact.

    There is enough brain development and activity to consider the fetus "alive" by RNS standards.

    RNS,
    I am arguing that your standard of reevaluating Talmudic law based on pikuach nefesh should cut both ways and we should be machmir at the beginning EVEN WITHOUT taking into consideration potential.

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  39. NS,

    My epistemology is skepticisim of even the rationalist, as being too rational might cause you to miss something that you cannot imagine.

    Chazal might have postulated that remving an organ from a brain dead person it is not a type of murder where you would get killed for by beis din but it will be similar to killing a person who is a treifa where it is prohibited but no death penalty or similar to killing a fetus before 40 days where there is no death penalty for a Jew but there is one for a non Jew. The point being, taking or denying the rationalist approach to werewolves and spontanous generation has no application to practical defenitions of human life. Rabbi Bleich might very well believe a werewolf is non existent but in terms of ethics and medical halacha brain death is unlawful. Even the sci-fi movies pstulate "organ farms" where humans are induced into a coma as a fetus and grown for organs to be transplanted. Are you going to say since the brain never was concious it is permitted to start such a farm? There is a bigger slippery slope by tying life into the brain than the combination of brain and heart. It is in all likely hood that chazal was corret in their assumption with out delving into the technicalities of modern day science.

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  40. shaul shapira,

    Tradition v44 n4 just (today) became available at http://traditiononline.org. Individual articles can be downloaded for US$2.00, but there are at least 4 that are relevant to the present discussion. Next most economical is an online-only subscription for US$25.00. (All of this assumes that you're not covered under an institutional subscription.)

    In my opinion, it's not possible to judge the give-and-take here without reading the articles.

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  41. "I did not state that life begins at conception. That is a moral statement. I said that BIOLOGICALLY, life begins at conception. That is a biological fact."

    There's no such thing as a biological definition. It's no different than death where people will argue at what point it happens. There are objective scientific observations about what occurs, but these do not constitute a definition.

    "There is enough brain development and activity to consider the fetus "alive" by RNS standards.""

    No there isn't. Differentiated neurons don't even exist at 40 days much less have any level of coherent activity, and certainly there is no consciousness. Even if there were, this has nothing to do with stem cell research. Your facts, logic, and conclusion are all mistaken.

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  42. PROBLEM: On kimat every blog post there is always one guy saying "how dare you argue on Rabbi X, who is so much your senior", which is then followed by another commenter addressed to the first, saying "how dare you criticize Rabbi Slafkin for expressing his view."

    SOLUTION: You ought to have a permanent policy on the side of your bog called "On scolding." This policy should explain your policy re the tired claims of you are too young, you are not qualified, etc, and state that henceforth if you choose to respond at all to such scolding, it will be only to say "See Policy on Scolding." Eventually the message will trickle in.

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  43. I believe that some matters in this post need clarification. I note that R' Natan intends to elaborate in a future post, but perhaps my contribution to the debate will not be amiss or in vain.

    First of all, no leading posek, except for the Minchat Yitzchok -to my knowledge, considered that the sages were correct in declaring an 8 month fetus to be the equivalent of a dead baby. Even the Minchat Yitzchok used the rationale that we really don't know the age of the fetus, and must therefore assume that he isn't in the 8 month category, in order to treat him on shabbat. In other words, medical advances have made some premises of the sages either invalid or of no practical consequence.

    Second, the sages established that cessation of breathing is sufficient to declare someone dead according to the evident meaning of the relevant gemara in Shabbat. This, as I recall, was the position of both Rav M. Feinstein and Rav Rav S.Z. Auerbach. Now we are able to revive someone who has ceased breathing for a relatively short period. Then the additional requirement for a medically defined death is for spontaneous breathing of a comatose patient to be permanently disabled due to a serious brain injury involving a non-functioning brain stem (The actor, Reeves, had a functioning brain stem. His lack of spontaneous breathing was due, instead, to his spinal cord injury).

    The issue of whether or not, heart cessation is also required appears to be based largely on the view of the Chatam Sofer. The fact, as I understand it, is that the heart can continue beating for a while even after brain stem death since it is controlled by an autonomous pace maker. One could consider the view of the Chatam Sofer as a stringency to minimize the possibility of burying someone who was still alive (a concern in the times of the Chatam Sofer in the 19th century. Medical knowledge and techniques have advanced greatly since then, and we should be justified in using other criteria to determine death. This, at least, is the justification of those who do use a brain death criterion.

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  44. Having read a number of R. Bleich's piskei halakhah you have to give him credit for methodological consistency.
    He relies heavily on legal analogy with little regard for physical homology or underlying biological mechanisms. The basic idea is that a legal analogy carries the weight of precedent and operates in a manner wholly internal to the legal system in question with much less room available to reinterpret earlier sources based on changing circumstances. As I understand him, R. Belich sees this as preferable to attempts at locating the rational behind a precedent and then applying the rational abstracted from the original context.

    For example, IIRC he argues that a child born from donor eggs is related only to the birth mother based on an analogy with certain agricultural laws. Others give more weight to the genetic relationship, but this requires a rationalizing approach to understanding chazal's view of the essential component of parent-child relatedness.

    This is essentially the same approach used here. I don't know if this overall approach to psak is anti-rationalist so much as it is legally formalistic.

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  45. The Torah tells us (Shemot 21:22) that the punishment for accidentally causing a pregnant women to miscarry is monetary damages.

    It would seem that even if we agree that chazal were incorrect in their characterization of life during the various stages of pregnancy, that there is room to be lenient according to their rulings even though we are aware of signs of life appearing earlier than they were.

    However, I do think that if/when science can incubate an embryo without a living host, then the outlook on life may change (again). It would seem that the rational view of life is intertwined with our ability to save that life. For example (1) A brain dead person has no hope of recovery so they're considered dead. (2) A fertilized egg in a test tube has no shot at life absent a human host, so we aren't as concerned about preserving it. Conversely, the 8 month old fetus that has an excellent shot at survival so we do everything in out power to save it.

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  46. Besides, I believe that in the case of organs that need to be transplanted from brain dead patients there is usually a one to one correspondence, ie the recipient is lined up before the organ is removed....

    I work in Transplant Medicine. In the case of Heart Transplants, due to the very short time it can survive outside of the body, the recipient is called in ahead of it being removed from the donor. So, most definitely if you are a heart transplant recipient, and you believe that harvesting organs is murder, you are part and parcel to said murder.
    Other organs, such as kidneys and corneas can remain outside the body for over 24 hours without being transplanted and sometimes several people are offered the organ before a recipient accepts it. In such cases the organ is not removed specifically for any one person. So there might be leeway for such a believer to accept a kidney or cornea without qualms.

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  47. "The book basically sides with those who do not rate brain death as death and thus prohibit organ donation from a brain-dead person."

    Rabbi Slifkin, did you personally read this book? If so, please provide a direct quotation or page reference to substantiate this claim.

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  48. No, I did not read it. Someone who did told me that it does not consciously side with them, but that the author's inclinations in that direction come across.

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  49. So, essentially, you have prejudged the author's own opinion based on hearsay from another who claims to have done his due diligence in investigating the matter. How utterly ironic.

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  50. Good point. I have amended the post accordingly. Although I can't imagine that it is offensive to point out where a person's inclination lies.

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  51. If someone claims, as Dr. Shabtai does, to present an impartial account of research in any field it is highly offensive to suggest that their work is tainted by personal bias. I'm sure you would have had no issue with your ban had you truly been working to detail positions of heresy as perceived by the establishment. As this was not your stated goal, you viewed those criticisms as unfair and inexcusable.

    As appropriate as the emendation is, I would respectfully request that you apologize to Dr. Shabtai for unreasonably impugning his professional standard of conduct. His good name is what will allow for further sales of his book and any future he wishes to have as an authoritative voice in this subject.

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  52. Point taken. I have issued a retraction and apology in today's post.

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  53. "In the U.S. there are no ramifications, other than moral, to one's position on this issue."

    Other than possibly pulling the plug on a living person.

    "The early results are quite promising as huge numbers of Israelis have been signing up in the past few months."

    What percentage are frum and wouldn't do it otherwise? Huge numbers of Isaelis go to Yad Eliyahu stadium on shabbos too.

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  54. "I work in Transplant Medicine. In the case of Heart Transplants, due to the very short time it can survive outside of the body, the recipient is called in ahead of it being removed from the donor. So, most definitely if you are a heart transplant recipient, and you believe that harvesting organs is murder, you are part and parcel to said murder. "

    David Ilan is correct here. A heart for donation can only be harvested from a breathing body. There is no way to get around the fact that if you believe that anything other than brain death is death, you murder the donor patient to save the recipient.

    Here is an informative video of an actual heart transplant, with discussion:

    http://www.montefiore.org/montefioreheartcenter/videos/heart-transplant-orlive/

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  55. To clarify a point made earlier, I am pretty sure that R Schachter does not agree with R Bleich. I heard this from him in person at a Y U Medical Ethics conference several years agp (unless he revised his opinion).

    R Bleich is anti brain death, R Schachter admitted to not being certain, and since it's a safek matter that could be potentially killing th donor, he rules lechumra, which makes his final psak similar to R Bleich. But they do not hold the same sevara.

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  56. "The claim that “scores of Rishonim and Aharonim are of the view that the Sages were not infallible in such matters,” i.e., in matters of Halakhah, is simply not true. Those authorities who ascribed error to Hazal did so only in the context of non-halakhic pronouncements. With the exception of Pahad Yizhak, I am hard pressed to identify any rishon or aharon who believes that, properly understood, Hazal were fallible in their specific halakhic pronouncements."

    This quote is about whether they erred in their halachic pronouncements and rulings - and that only the pachad yitzchak thinks the halachic itself is mistaken. It is not about the science underlying those opinons, which is what your ostentible counter-rebuttals are all about.

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  57. Do the rulings approving or banning cigarette smoking also split along rationalist/non-rationalist lines? Now that's a matter of life and death.

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  58. "Someone who acknowledges that Chazal only possessed the limited scientific knowledge of their era will (hopefully) take this into account. But if someone believes that Chazal could not have been mistaken about scientific mattersas demonstrated by their refusing to accept that Chazal mistakenly believed in spontaneous generation -"


    You assert that rabbi bleich's stance is that chazal can't err on science, but that this is false - the thrust of his article is that they do err, and his preferred resolution of the science/chazal issue - section V - is premised on acceptance that chazal were relying on outdated science. Anyone reading your "rebuttal" would think rabbi bleich rejects the "Rationalist" position that chazal can err, and he most clearly does not. he begins his article by saying that there are any number of solutions to the spontaneious generation problem "None of these solutions involve ascribing scientific inerrancy to chazal." how clear must he be?!

    moreover, he doesn't "refuse to accept that chazal mistakenly believed in spontaneous generation" you misconstrue that entire section as he doesn't say that chazal didnt believe in spontaneous generation, only that it's irrelevant since they are only concerned with observable phenomena so its irrelevant if it arose spontaneously, as long as it didnt arise visually. this is borne out by the later section i refer to above. you have completely misread and misrepresented his position, which clearly accepts that chazal did not have modern scientific understand and that they could and did err in their understanding. your series of posts are incredible and beg explanation as to how you can distort his point and stance so egregiously.

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  59. "This quote is about whether they erred in their halachic pronouncements and rulings - and that only the pachad yitzchak thinks the halachic itself is mistaken."

    Which is NOT what my quote said in the first place.

    "his preferred resolution of the science/chazal issue - section V"

    It's not his preferred resolution. He says that it is problematic due to its novelty, and unnecessary due to the existence of other cogent approaches.

    "he begins his article by saying that there are any number of solutions to the spontaneious generation problem "None of these solutions involve ascribing scientific inerrancy to chazal." how clear must he be?! "

    It's like those who will concede that the Gedolim are not infallible, but refuse to ever conclude in any given matter that they were actually wrong.

    "he doesn't say that chazal didnt believe in spontaneous generation, only that it's irrelevant since they are only concerned with observable phenomena so its irrelevant "

    No, this approach is predicated on saying that they didn't believe in it. If they believed in it, then they were talking about lice. If they didn't, then they had to be talking about something else, whose eggs are actually microscopic.

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  60. Also, the way that he reinterprets the Gemara's challenge about karnei re'eimim and beitzi kinnim shows that he is claiming that Chazal knew about the existence of the eggs.

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  61. Have I misunderstood?
    I thought the difference between your position and R. Bleich's was only regarding how to view apparent contradictions between statements by Chazal and science. In the end do you not maintain that the rulings of chazal, regardless, of their premises, are binding? (in which case we should accept their definition of death) You write, "they acknowledge that the gemara is apparently relying upon an erroneous belief in spont. gen...but maintain that the halakha remains in force" If so how does this discussion impact organ donation, halakha lm’aaseh?

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  62. Have I misunderstood?
    I thought the difference between your position and R. Bleich's was only regarding how to view apparent contradictions between statements by Chazal and science. In the end do you not maintain that the rulings of chazal, regardless, of their premises, are binding? (in which case we should accept their definition of death) You write, "they acknowledge that the gemara is apparently relying upon an erroneous belief in spont. gen...but maintain that the halakha remains in force" If so how does this discussion impact organ donation, halakha lm’aaseh?

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  63. With the exception of Pahad Yizhak, I am hard pressed to identify any rishon or aharon who believes that, properly understood, Hazal were fallible in their specific halakhic pronouncements. - a student

    Let me add the Tosafot to the list of Rishonim who stated that a talmudic sage could base his halachic opinion on an erroneous supposition - if R' Natan hasn't already done so. In Eruvin 76b, Tosafot (s.v. Rabi Yochanan) state that the leading Amora, Rabi Yochanan based his halachic requirement of a minimum circumfrence of 24 tefachim for a circular hole in a wall separating 2 yards, whose bottom was within 8 tefachim of the ground, on a mathematical error. Tosafot also considers that the conclusion of the above gemara and that in Succah 8 used an incorrect understanding of a geometric rule in refuting the view of R' Yochanan.

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  64. Y. Aharon:

    The quote "With the exception of Pahad Yizhak, I am hard pressed to identify any rishon or aharon who believes that, properly understood, Hazal were fallible in their specific halakhic pronouncements." is from rabbi bleich, not my own words (not sure that was clear). My contribution was to say that rabbi bleich does not argue in his rejoinder that hazal were inerrant in science, or insist that their halachic conclusions are based on correct science rather than the outdated science of their times. Rather he says that pachad yitzchak asserts that hazal, based on outdated science, decided halacha incorrectly, but others take an approach that presumes that the halacha was correctly decided, although they do not necessarily assume that hazal were scientifically inerrant a la hazon ish.
    Rabbi Bleich asserts that R Slifkin's analysis - that hazal erred on science, decided the halacha incorrectly based on false scientific premises, and yet the halacha is still binding both lekula and lechumra due to klal yisrael's voluntary acceptance of the binding nature of halacha whether or not based on empirical error - is not the framework of the dor revi'i or rav herzog. He also raises a number of objections to the premise that one is permitted to follow a lenient ruling of hazal if based on empirical error. After determining
    that neither Rav Herzog
    or dor revi'i or rav fischer claim that one can rely on a halacha decided on incorrect empirical premises, he presents his own framework for understanding how halacha would be valid and binding even if based on the faulty premises of science of hazal's times.

    i recommend rabbi bleich's own writing to you, rather than my own. I believe that section V, in which R bleich proposes a way of understanding how halacha can be binding even if based on outdated science refutes rabbi slifkin's main contentions as to rabbi bleich's "anti-rationalist" stance. Rabbi Slifkin
    believes that rabbi bleich wrote section V only to reject it, a claim I find preposterous. Please do read and judge for yourself.

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  65. "After determining
    that neither Rav Herzog
    or dor revi'i or rav fischer claim that one can rely on a halacha decided on incorrect empirical premises"

    I opened the wrong thread to see this sentence which should read ...they don't claim as r slifkin does that one can rely on halacha decided on incorrect premises because of a nationwide acceptance of hazal's authority even in cases where their ruling is in error.

    I wrote a post about dor revi'i in the thread about r bleich's presentation of r glassner's position that was never posted, so briefly:
    Dor revi'i in particular has a totally different framework for understanding the nature of tbs"p's authority that is unique to him, and different from R Slifkin's claim that hazal's psak is binding due to nationwide acceptance of their authority, regardless of error. The first issue with rabbi slifkin's reliance on dor revi'i is that when dor revi'i says that the halacha remains binding even if decided in error, he does so within the context of his own understanding of the binding nature of torah shebalpeh, and while the halacha necessarily remains binding within his framework, once one drops his framework, and adopts a different understanding of the binding nature of tsb"p, the logic no longer holds. R Slifkin strips the statement out of context in this way, and is not following the dor revi'i when he says the halacha remains binding because of nationwide acceptance - and once one adopts a different basis for accepting tsb"p and hazal's authority, one returns to the question of how one may follow them when one knows their psak is based on empirical error. Even if R Slifkin's position was the dor revi'i's, and it's not, one would still have to justify relying on the dor revi'i's approach to the binding nature of tsb"p, as his approach to the issue is a distinct minority position. If the mainstream understanding of the nature of hazal's authority doesn't allow one to decide to follow their rulings lekula if known to be based on empirical error, can one just pick dor revi'i's minority approach so as to rule leniently? (I stress: minority approach in understanding the nature of tsb"p's authority. the issue isn't that he relies on dor revi'i who says that hazal err etc.) anyway, r slifkin's stance differs from the dor revi'i's.

    rabbi bleich also discusses rabbi fisher's position and points out several problems with it. additionally, he says that rabbi fisher doesn't claim that hazal's authority is binding if known to be based on empirical error, couldn't possibly be claiming this given his general argument, and his reasoning couldn't be used to justify kula.

    When Rabbi Bleich writes:
    "Even if the view of Dor Revi’i or of Rabbi Fisher would lead to the conclusion attributed to them in the letter to the editor, little would be accomplished.
    Halakhic decision-making is not a matter of picking and choosing among precedents consigned to the cutting floor"

    these are at least one set of problems that rabbi bleich sees with rabbi slifkin's analysis in his letter.

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  66. a student, you're correct, I confused a citation with the originator. I then thought it best not to correct my error since it's not that appropriate for me to seemingly contend with a noted posek. However, since you corrected me, I must state that I believe that my argument still holds. Tosafot states that Rabi Yochanan made a serious geometric error in a matter involving practical halacha. While the gemara doesn't follow his halacha, their reasoning is judged wrong by Tosafot (confusing a rule for areas with that of perimeters). Now, Rav Bleich may claim that only the final halacha is graced with divine assistance to be error free. Yet, one can find other cases in Eruvin where significant mathematical errors are made in halacha such as treating the diagonal as the sum of the sides (besides R' Yochanan's apparent position in Eruvin 76b), or that pi is exactly 3 (Tosafot note that mathematicians disagree).

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  67. Y Aharon:
    Rabbi Bleich does not claim that Chazal's conclusions are graced with divine assistance to be error-free! No place does he make such a claim. Rather, he is concerned only with the technical issue: if the halcha was decided on the basis of empirical error, how can one follow it as one ought not to be permitted to follow the decided halahca lekula in such cases. Towards the end of the article he presents his own approach for how the halacha can be decided based on outdated science and yet remain binding.
    The article doesn't mention the possibility that there is divine intervention in maintaining the halacha as free of error. I would go so far as to speculate that such a mystical approach would be rejected by him as alien to the halachist's worldview. Rather his reasoning is: if we presume that chazal decided the halacha based on outdated science, we must either decide the halacha is not binding, or provide a coherent explanation for why it is binding. Again, he proposes his own explanation for why halacha decided based on empirical error would stand.
    I understand that many people (I don't necessarily mean to include you in that group) just want to know whether one can say that a halacha is based on outdated science and remains binding, and the question of why and how it remains binding is not of interest to them. But someone has to take the question seriously if we are to assert that the halacha if decided based on outdated science remains binding! I know that some in Rabbi Slifkin's audience do view this issue as significant. Rabbi Slifkin has been asked in the past: is it not true that one must not follow a halacha decided based on empirical error? I believe I've seen this question posed to him a few times over the years, but for example, back in June, two separate commenters asked this question of Rabbi Slifkin in the thread in which he posted his letter to Tradition to which Rabbi Bliech wrote his rejoinder. This is not a "gotcha" question from Rabbi Bleich or a surprising question that indicates the questioner is anti-rationalist. Rabbi Slifkin has never addressed this issue and has lately written that it's irrelevant. Rabbi Bleich does address it and proposes an answer.
    I've elsewhere pointed out that not only does Rabbi Slifkin not seem to care how or why the halacha remains binding even if based on outdated science, he has lately said that pikuach nefesh is doche retzicha on the presumption that if the immediate concern is "important" enough the halacha is not binding if based on outdated science, i.e. should it be true that refraining from pulling the plug on a brain-dead patient for the purposes of organ donation is forbidden according to chazal, and this would mean their definition of retizcha prevents pikuach nefesh, one should simply announce that the halacha is not binding in such instances as it is based on outdated science. I believe that it is therefore highly relevant to note that Rabbi Slifkin has refused to address the issue of why a halacha based on outdated science is binding or even to relate to it seriously in any way. Is this gap in his presentation unrelated to his newer claim that in some instances it is not binding? Rabbi Bleich by contrast (continued in next comment)

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  68. (continuation of previous comment)
    has NOT maintained that the halacha simply can't be decided based on outdated science. His contention is that it's problematic to assert that the halacha in such cases remains binding based on some vague notion of nationwide acceptance of chazal's authority only because such a claim doesn't hold up to analysis, and would leave us with the conlucsion that the halacha is not binding. This is why he submits a proposal for a model of understanding how the halacha can remain binding in such instances. Rabbi Bleich's insistence that one must address why the halacha should remain binding in a serious manner so that one can indeed treat it as binding seems quite prescient in light of rabbi slifkin's blithe dismissal of the binding nature of halacha with his proposal that "pikuach nefesh doche retzicha"
    (Of course there are poskim who believe that the halacha, as decided by chazal for whatever reasons, is binding and that halacha nonetheless recognizes brain death as death, but this is not rabbis slifkin's approach when he says that one should simply ignore the halacha if it were to treat the brain dead person as alive.)

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