One of the most vexing questions in contemporary medical ethics is when a dying patient can be considered dead. Until several decades ago, the answer was simple: when a patient stopped breathing and his heart stopped beating. However, since the invention of artificial respiration, the answer is no longer straightforward.
During the last fifty years, a number of landmark halakhic responsa have been written, evaluating whether neurological definitions of death (a.k.a. “brain death“), such as the Harvard Criteria of 1968, are valid in the eyes of halakha. However, up until now, there has been no systematic attempt to research which medical information had been used as a basis for those halakhic responsa.
Recently, the Vaad Halacha of the RCA has done just that and published a extensive paper on the determination of death in halakha. The paper has been picked up by the news media [Jewish Week] and been extensively discussed in some blogs [Hirhurim I and II].
While the paper does is presented as an educational exploration, not forcing any conclusions, the paper nonetheless demonstrates that to date, there has been very little support from the halakhic responsa literature, to support accepting “brain death.” See below for my take on this. Anyway, understandably, those who advocate accepting the neurological standard were not pleased, and not everybody welcomed the paper.
The lead author of the study is R’ Asher Bush, the chairman of the Vaad Halacha, and yours truly had the privilege to contribute as an editor of the paper.
Despite having contributed to the paper’s final form, the comments below are mine only and do not necessarily reflect the opinion of the article’s authors.
First a brief description of the issue
At stake are a number of issues. First of all, when is it permissible to stop providing artificial respiration? Removing a ventilator from a live patient will likely kill him.
Secondly, may one be an organ donor, or are patients still considered alive when organs are typically harvested? Removing organs from a live patient, even for the noble cause of saving someone else’s life, would be nothing less than murder.
Thirdly, with the rising cost of hospital care, there is much pressure to free up beds as soon as possible. When is too soon?
In reality, the ethically most pressing question concerns the permissibility of organ transplants, and the paper expends a considerable effort to explore that issue.
The paper, as do just about all posqim, unambiguously rejects the possibility of harvesting organs from live people. [Sadly, this must nowadays be stated, as some secular bioethicists advocate simply killing permanently comatose patients in order to harvest their organs.]
Hearts and lungs are necessarily harvested before cessation of heartbeat and respiration, most liver transplants must be harvested in the same way. Thus, if “brain death” is rejected in halakha, those organs cannot be donated. Live partial liver transplants, though still extremely risky, and the already much safer live kidney transplants, are obviously unaffected by this question, and the paper advocates live organ donation. Cadaver kidney and cornea transplants, as well as some other tissues, can be harvested after cardiopulmonary death, and are halakhically encouraged.
It should also be noted that posqim generally do not feel that the prohibition of nivul hamet (disfigurement of the deceased) should prevent harvesting organs, since saving a life takes precedence over keeping a corpse whole. Furthermore, no difference is made between organs for Jewish or gentile recipients; when organ donation is permissible, they should be made available to all.
The Second Ethical Question – May One Accept Transplants
Though many posqim question the permissibility of harvesting organs from a “brain dead” patient, they permit receiving organs.
However, this creates a troubling ethical conundrum, as it means people who observe halakha may – in this matter of life and death – be takers, but not givers.
The reason is that the posqim have generally assumed that available organs will be harvested no matter what, and that a patent receiving an organ therefore bears no responsibility whatsoever for the possible murder of the transplant donor.
However, there are reasons to doubt this assessment of the medical facts. Transplant recipients are carefully matched with donors, and surgeons will try to postpone harvesting the organs so as to minimize the time organs are out of a body. That suggests that the patient must be complicit in the harvesting of the organs.
I do not consider myself qualified to render rulings in this matter, but it surely looks like posqim should be provided with the most up to date information on this, too, and let them reevaluate.
Does the Paper Really Reject the Brain Death Standard?
Actually, it doesn’t. It merely notes that despite claims to the contrary, to date, there have hardly been any published responsa that really support relying on “brain death.” Upon investigation, it turns out that just about all the permissive original* responsa published by major posqim were based on medical information that points at other kinds of conditions, or that is otherwise questionable. Practically, it does mean that for now, there is insufficient support to rely on the “brain death” standard. (*= original means that it is a responsum that makes an original contribution, and is not primarily a statement of agreement with, or a vote for, another contemporary posseq.)
But, none of that should prevent posqim from henceforth acquiring comprehensive accurate and pertinent medical information in this matter and reach different conclusions. Obviously, as this is ultimately a halakhic issue that needs to be decided by the greatest exerts around (we are talking about matters of life and death, which may involve either murder of the donor or needless non-assistance to a recipient – not a matter regular rabbis can decide), there can be no prejudice. The consensus may shift, or it may not. But to date there is too little support for relying on “brain death.” Some major posqim genuinely support “brain death,” but far fewer than commonly assumed.
But What About the Patients?
Every year, countless patients die waiting for a transplant. Four years ago, the New York Times reported that demand for kidneys in the USA was five times the supply.
In 2008, the last year for which the USA Health Resources and Services Administration published these numbers, there were 139’917 patients waiting for a transplant in the USA alone. Of those, 7’182 died that year while on the waiting list.
However, as their report on the time to transplant shows, not all organs are in equally short supply. Some are in shorter supply than others. In 2005, the median time a patient remained on the waiting list for a kidney was 1269 days, while patients waited a median 131 days for a heart, 200 days for a lung and 269 days for a liver. Kidneys are in very short supply.
Unsurprisingly, the number of patients waiting for kidneys also exceeds greater than those looking for any other organ transplant. In 2008, 33’051 were waiting for a kidney, 11’176 for a liver (which, increasingly, can come from a live partial liver donation), while all other categories combined numbered 8’058.
There is rising awareness for live kidney donations, both in the Orthodox Jewish community and in the population at large. As there is a chronic organ shortage, which, in the case of kidneys, has been getting worse, only live donations can turn this critical situation around. Live donations have a far greater potential than cadaver donations. And, as noted in the RCA paper, it is actually possible to harvest usable kidneys from a patient who has definitely, totally died, beyond any halakhically relevant doubt.
Thus, even if the halakhic consensus remains firmly against the” brain death standard,” the supply of the most critically needed organ need not be affected – provided hospitals are willing to accomodate cardiopulmonary dead kidney donors. A number of other life-saving tissues can similarly be harvested from cardio-pulmonary dead donors; this should be encouraged.
Beyond that, the Jewish community needs to be a the forefront of advocating research in live donations, partial organ donations, which may possibly be made to regrow even in the donor, and stem cell research that offers, in the long term, the potential to regrow organs from the recipient’s own tissues, obviating the need for most cadaver donations. The field of xenotransplanation, harvesting organs from specially genetically modified donor animals, need not be forgotten, either. A few years ago, this was a very hot field, but has recently been getting less attention.
I close this post with a prayer, that G”d may open our eyes and show us more and more miracles of His creation, so that we may heal the sick and strengthen the weak, bring sight to the blind and comfort to the downcast, all while acting according to the highest ethical standards.