Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion

SHIUR 02: ORGAN TRANSPLANTS - Establishing the Time of Death

By Rav Chaim Navon

            The critical issue regarding Halakha's position on organ transplantation lies in establishing the time of death, for harvesting the donor's organs before he is defined as dead constitutes homicide. From a biological perspective, death is a process which ends with the death of all the cells in the body, that is, with the disintegration of the body's tissues. From a legal and halakhic perspective, however, a person is regarded dead well before all the cells in his body have died. Technical considerations of a medical-biological nature commingle here with legal-halakhic judgments (for a doctor might assert that the brain has died, but a rabbi or judge must decide whether this means that the person is dead). The basic talmudic passage related to this topic is found in Yoma:

Mishna: A person upon whom a building has collapsed, and there exists a doubt whether he is there or not there, whether he is alive or dead, whether he is a Cuthean or an Israelite, they remove the debris for his sake. If they find him alive, they [continue] to remove [the debris]. But if [they find him] dead, they leave him. (Yoma 83a)

            If a building collapsed upon a person on Shabbat, we are permitted and obligated to remove the debris in order to rescue the person trapped beneath. If we reach the body and see that the person is dead, the removal of debris must stop immediately. The question, therefore, arises: What part of the body must be exposed in order to ascertain death?

            The Gemara cites a Baraita which discusses this issue:

Our Sages have taught: How far does he search? Until his nose. And some say: Until his heart[1]…. Rav Pappa said: They disagree where [the search went] from bottom to top [= from feet to head], but from top to bottom [= from head to feet], once he reaches the nose, he need not go further. For it is written: "All in whose nostrils was the breath of life" (Bereishit 7:22). (Yoma 85a)

            The Halakha has been decided in accordance with the position that we continue to remove the debris until we reach the trapped person's nose (Rambam, Hilkhot Shabbat 2:19; Shulchan Arukh, Orach Chayyim 329:4). This seems to imply that life is defined by repiration: A person is "dead" when he has stopped breathing and there is no way to restore spontaneous respiration.

According to the Chakham Tzvi, it would appear, however, that death is defined by the cessation of heartbeat. He was asked about a chicken that had been found without a heart, the question arising whether or not the bird is kosher. The Chakham Tzvi argues with persuasive logic that since a chicken cannot possibly live without a heart, it surely must have had a heart but it was lost. In the course of his discussion, he relates to our issue as well. The Chakham Tzvi counters the argument that breathing is possible even without a heartbeat. At first glance, that position seems to be supported by the Yoma passage, which implies that breathing is a more reliable indication of life than is heart activity. The Chakham Tzvi rejects this claim:

… The soul dwells in the heart, but sometimes, even though the soul is still in the heart, there is no apparent heartbeat, that is to say, [one that is perceptible] externally on the chest, because of the great weakness… It is exceedingly clear that there is no breathing without life in the heart, from which and for which there is breathing… The reason that life depends upon the breathing of the nose is that it is through the nose that warm air leaves the heart, and cold air enters to cool the heart, and if there is no heart, there is no breathing. (Responsa Chakham Tzvi, 77).

            The Chakham Tzvi argues that the Gemara in Yoma is dealing with a case where the heart may still be working, but because of the difficulty in confirming heartbeat, it is necessary to check the nose for signs of respiration. From a medical perspective, once the heart stops beating, the brain degenerates, and spontaneous respiration ceases. Thus, if there is respiration, there must also be a heartbeat. The difficulty arises in the opposite direction. Some have tried to infer from the Chakham Tzvi that if a person has stopped breathing, but his heart is still beating, we follow the heart and regard the person as being alive. This is the position of the Tzitz Eliezer and R. Wasner (Sefer Assia VII, pp. 152-153, 163-165). It should be noted that the Chakham Tzvi relies on a totally incorrect understanding of the biology of the respiratory system.

            The Chatam Sofer, on the other hand, seems to have understood the talmudic passage according to its plain sense, that the time of death depends exclusively on the cessation of respiration. A question had been raised regarding the prohibition falling upon a kohen to contract ritual impurity through contact with a corpse and the prohibition to delay burial. The Chatam Sofer was asked about a municipal medical examiner, who happened to be a kohen, whether or not he was permitted to examine corpses in order to certify death, as required by the law. The questioner had argued that perhaps the "dead person" was not really dead, in which case the medical examination might actually save a life. In the course of the discussion, the Chatam Sofer mentions the position of Moses Mendelssohn, who had permitted delaying burial for several days, in keeping with the law of the land, because of the difficulty involved in ascertaining death. The Chatam Sofer vigorously objects, arguing that the cessation of breathing is a clear and tested sign of death:

In letters from 1772, the Sage, Rabbi Moses [Mendelssohn] argued in favor of permitting the prohibition of the Sages of Israel, claiming that the doctors of our time maintain that the line distinguishing between life and death is not known, and that it is impossible [to determine death with certainty] without disintegration of the tissues… But the Gaon R. Ya'akov Emden strongly objected…

Let us see. There is no doubt that if the Torah says: "And if a man committed a sin worthy of death… his body shall not remain all night on the tree; but you shall surely bury him on that day," so that one who violates this [prohibition] transgresses [both] a positive precept and a negative precept, it must be that we were given a [precise] definition of death. Perhaps, there was a tradition from the ancient naturalists, even though it has been forgotten by contemporary doctors, and Chazal relied upon them… Or if they did not have a tradition from the naturalists, Moshe Rabbenu, of blessed memory, must have received a definition at Sinai, or else [the Sages] relied on the verse, "all in whose nostrils was the breath of life," that it all depends on respiration through the nose, as is explained in Yoma 85a, and so ruled the Rambam and the Shulchan Arukh…

But when someone lies before us like an inanimate stone, without a heartbeat, and then he stops breathing, we have nothing but what our holy Torah says that he is dead, and his corpse may not remain unburied, and if a priest defiles himself by coming into contact with it, he is liable to flogging after having received a warning. (Responsa Chatam Sofer, Yore De'a 338)

            The Chatam Sofer implies that the relevant criterion is cessation of breathing. He mentions cessation of heart activity only as a stage in the process of death. The Chatam Sofer is dealing with a case where first there was no pulse and then breathing ceased, that is, when cardiac arrest led to brain death and respiratory failure. It is not clear what he would have said in the reverse case, where there is a pulse, but no spontaneous breathing. The Shevet ha-Levi (VII, no. 235) and the Tzitz Eliezer (XVII, no. 66) understand that, according to the Chatam Sofer, the existence of a pulse testifies to life. But others have understood that respiratory failure is the sole criterion, and that when the Chatam Sofer mentions that the heartbeat had stopped before the breathing, he means only to say that the absence of a pulse does not suffice to determine death (R. Yisraeli, Sefer Assia VII, pp. 174-175. Prof. Steinberg argues that there is no conclusive proof either way [Sefer Assia VII, p. 221]).

            It was only in the middle of the twentieth century that the idea of "brain death" was first introduced – that is, defining death according to the cessation of brain activity, and not according to circulatory-respiratory failure. Following brain death, spontaneous respiration is impossible, but breathing can be maintained by connecting the patient to an artificial respirator. The heart can pump blood even after the brain is dead, provided that it continues to receive oxygen.  With artificial respiration, the patient can continue for some time in such a state. Thus, modern technology has created the possibility to separate brain death from cessation of heart activity and respiration.

Two questions now arise: 1) What is the critical factor regarding the definition of death - the heart, the brain or respiration? 2) If spontaneous respiration has ceased, can artificial respiration by way of a machine be regarded as breathing for this purpose? If the answer to the second question is in the negative, then the range of possible answers to the first question narrows, for cessation of spontaneous breathing and brain death occur at the same time.

            This question has ramifications regarding organ transplantation, because successful heart and liver transplants require that those organs be harvested from the donor's body while his heart is still beating. We are not talking about removing organs from a person who is in a coma, in a persistent vegetative state or in a state of clinical death (temporary cessation of heart activity, which can be restored by way of resuscitation), but rather from a person whose brain stem is dead.

            R. Moshe Feinstein was asked about heart transplants on a number of occasions. In his earlier responsa, he severely prohibited heart transplants for two reasons: He opposed the procedure in principle because of the issue of the criterion of death, and he was concerned about the dangers involved in the operation and the lack of any significant benefit:

That which the doctors say that the signs of life and death are in the brain, so that if in their estimation there is no longer any brain activity, the person is regarded as dead, even though he may still be breathing[2]…

Surely, the truth is that the cessation of brain activity is not death, for as long as a person is breathing, he is alive. The fact that the brain has ceased functioning will only lead to death, for the person will stop breathing. Since he is still alive, there may be medications in the world, those that are known today or still unknown, that will cause the brain to resume functioning… Thus, it is obvious that one who kills such a person is a murderer who is liable for the death penalty. (Iggerot Moshe, Yore De'a II, no. 146)

The heart transplants that doctors have recently begun performing involve two actual counts of homicide. For they kill with their hands the donor from whom the heart is taken, for he is still alive, not only according to Torah law which teaches us the importance of death, but even according to the doctors [themselves]. For there are those who speak the truth and say that that [the donor] is still alive. But because of their wickedness, they are not concerned about this one's life, which is only for an hour or a few days. They also kill the heart patient with their hands, removing many years or even decades from his life, for it is known that many heart patients live for many years. But those whose hearts have been removed, and who have had the hearts of other people implanted in them, they all have died within a short time, most of them within a few hours, and some after a few days. Even the patient in Africa, who is still alive after about six months, [the doctors] agree, as I understand, that he will not survive. It is amazing that the authorities in all these countries allow the wicked doctors to kill two people each time; inasmuch as they already see that nobody survives the procedure, they should punish [these doctors] as full-fledged murderers. (Iggerot Moshe, Yore De'a II, no. 174)[3]

I have come to this because we have clarified the matter, and my son-in-law, Rabbi Moshe David Tendler, shelita, saw in all the medical journals that there is no change for the better even for the recipient of the transplant, for nobody has survived for a few years, and even those months that he lives constitute a life of pain, suffering, and dependence upon doctors. In our country, the United States of America, it is forbidden, except for in one state, where they permitted one doctor who is considered a great expert, and this is for no reason, but the [other] nations of the world are not concerned about homicide. So too many countries have forbidden this [procedure] because it involves murder without benefit. And therefore the doctors have lied when they say that that the condition of the patient who received a heart transplant improved. On the contrary, doctors who do this should be punished as intentional murderers, for they too know that their [patient's] condition has not improved at all. (Iggerot Moshe, Choshen Mishpat II, no. 72)[4]

            As for the practical considerations, circumstances have drastically changed over the past twenty years. During the eighties, drugs were developed that prevent rejection of the transplanted organ, and today in the vast majority of cases - about ninety percent – heart transplants extend lives.

            The fundamental question remains, however, regarding the criterion for establishing the death of the donor. On this point, too, the Iggerot Moshe appears to have changed his position, as is evident from two of his later responsa. In the first responsum, which was written in 5736 (1976) and does not deal with organ transplants (but with removing a person from a respirator), the Iggerot Moshe asserts that artificial respiration by way of a machine is not regarded as breathing regarding the establishment of death:

There are patients in critical condition who are unable to breathe, and the doctors attach a machine to their mouths that allows them to breathe. Such a machine allows the patient to breathe, even though he is already dead, for such breathing does not turn him into a live person. If no other signs of life are evident, and he appears not to feel anything, even a pinprick, as in the condition called coma – [then] while the machine is operating, one is forbidden to remove it from his mouth, for perhaps he is alive, and this will kill him. But if it has stopped working, it having run out of oxygen, they should not put it back again into his mouth for a quarter of an hour, for if he is not alive, he will stop breathing, and they will know that he is dead.

This applies to people who took sick with a certain illness. But those who were injured in a traffic accident or fell out of a window, or the like, who because of constriction of the nerves in areas close to the lungs and respiratory organs are unable to breathe, but after some time breathing solely by way of an artificial respirator, the constricted areas will expand and they will begin to breathe on their own – such people even though they cannot breathe on their own, and there are no other signs of life, it may be that they are not yet dead.

Since you say that there are now expert doctors who can clarify by injecting a certain dye into the body whether the connection between the brain and the rest of the body  has been severed… if so, we should be stringent about these, so that even if he does not feel anything, even a pinprick, and even though he does not breathe at all without a respirator, they should not certify that he is dead until they have performed this examination. For if they see that there is still a connection between the brain and the body, even though he is not breathing, they should keep the machine in his mouth even for a long time. Only when they see through this examination that there is no longer any connection between the brain and the body, should they decide that this person who has stopped breathing is dead. (Iggerot Moshe, Yore De'a III, no. 132)

            Three important principles emerge from this responsum: 1) If a person is incapable of automous respiration, he is regarded as dead, even if he is on an artificial respirator (if there are no other signs of life). The editor of this responsum (and husband of R. Moshe Feinstein's granddaughter), R. Shabtai Rappaport, has testified that R. Moshe was dealing here with a case where there was still a heartbeat.[5] Similar testimony was given by R. Moshe's son, R. David Feinstein.[6] 2) As long as the possibility exists that spontaneous breathing will be restored in the future, the patient is regarded as being alive. In this way, R. Feinstein solves a difficult problem, for respiration may cease for a wide variety of reasons, and often it is still possible to save a person through artificial respiration. Thus, it is difficult to say that anybody who is not breathing on his own, but by way of a repirator is defined as dead. It may, perhaps, be argued that spontaneous breathing is merely a sign of life, but the determining factor is the brain. This, however, requires further study. R. Moshe asserts that breathing is not only a sign of life, but the definition of life; but as long as it is still possible to restore spontaneous breathing, the patient is regarded as being alive. 3) Today the best indication of the impossibility of restoring spontaneous breathing is brain death. That is to say, even though the criterion for determining death is cessation of breathing, brain death is the clearest sign of the impossibility of restoring spontaneous respiration.

In this responsum, however, the Iggerot Moshe takes brain death into account only to be more stringent. In a later responsum, written in 5745 (1985), the Iggerot Moshe issues an unequivocal ruling in favor of relying on brain death, even for leniency:

In practice, as I have heard from my son-in-law, R. Moshe David Tendler, shelita, the courts have only accepted the definition of death that is correct according to Halakha, the definition referred to by the physicians as the "Harvard criteria," which is considered [as reliable as] decapitation of the patient, for when the Harvard criteria are met the brain has already begun to degenerate. Even though the heart may still beat for a few days, nevertheless once the patient can no longer breathe on his own, he is regarded as dead (as I have explained in my responsum, Iggerot Moshe, Yore De'a III, no. 132).  (Iggerot Moshe, Yore De'a IV, no. 54)[7]

            R. Shlomo Zalman Auerbach has argued that R. Feinstein is not dealing here with organ transplantation, but only with removal from a respirator. Even if we say that a patient may be removed from a respirator once he is brain dead, his organs may not be removed until his heart has stopped beating:

Since no mention is made in the Talmud or in the codifiers of brain death, and primarily because it is not at all visible to the eyes, and it is not clear the extent to which the examination is truly reliable, therefore it is necessary to wait until the heartbeat ceases entirely and then wait another half a minute, and only then, if the body lies like an inanimate stone, should it be treated like a corpse for all matters. (R. Shlomo Zalman Auerbach, Sefer Assia VII, p. 148c)

            In the continuation he writes that perhaps even a half-minute wait does not suffice, and that one should wait longer (ibid., p. 148d).

            R. Rappaport responded to this argument, contending that according to R. Feinstein detaching a person from a respirator is a positive action comparable to active homicide, and not merely the passive removal of something that is preventing death. If he permitted detaching a patient from a respirator, he must also have permitted the removal of his organs for the purpose of transplantation (ibid. p. 148g).

            R. Wasner, author of Responsa Shevet ha-Levi, puts forward another reason to forbid the practice, though this is a philosophical-theological, rather than a purely halakhic argument:

My heart is exceedingly hesitant, whether this medical treatment is at all permissible based on the Torah's allowance of medicine – "'And he shall surely heal' – from here permission is granted to a doctor to heal"… But a heart (or liver) transplant, which is an action that runs counter to the very creation of man, and a total change in the natural order, to transplant life-sustaining organs from one person to the next in contravention of the providence of the Creator in the creation of man - who permitted them to engage in this practice? Indeed, based on this point I would have been unable to decide, were it not that the view of the great authorities is clear that we are dealing here with homicide (R. Sh. Wasner, Sefer Assia VII, p. 165).

            R. Wasner argues that God permits man to practice medicine, but does not allow medical practices that constitute a "total change in the natural order," like organ transplantation. It is difficult to understand this argument, for it is possible to view even the injection of antibiotics as a change in the natural order. Nowhere do we find that the Sages of Israel ever objected to medical advances because of this argument.

            An issue that we have not focused upon, but should also be noted, is that in the case of skin grafts and other non-life-saving procedures, there arises also the problem of deriving benefit from the organs of a deceased person, and also the problem of defiling a dead body. These problems - for which various solutions have been proposed – do not apply in the case of life-saving procedures like heart and liver transplants.

FOOTNOTES:

[1] According to another reason: "Until his navel."

[2] Prof. A. Steinberg (Sefer Assia VII, pp. 223-224) has noted that R. Moshe Feinstein's responsa imply that he had been provided with incorrect medical data, for brain death is established only after the cessation of respiration. Similarly, with respect to the argument put forward below, Prof. Steinberg has noted that brain death is only established when there is no possibility of restoring brain function. If you should argue that perhaps a way will be discovered to revive a dead brain, it can similarly be argued that perhaps a way will be found to resurrect a dead heart.

[3] This responsum was written in 1968, six months after the first heart transplant was performed in South Africa.

[4] This responsum was written in 1978.

[5] Sefer Assia VII, p. 144.

[6] Sefer Assia VII, p. 147.

[7] The original letter was printed in Sefer Assia VII, p. 148.

(Translated by David Strauss)