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.