Sunday, October 31, 2010

The Halacha is Moral Principal and a Wrap-up of the Time of Death Issue

The fifth principle of rationalist medical halacha is the Moral principle.  Similar to the fourth principle of Common-sense, this principle is not meant to prove anything.  However, it does challenge us to view Halacha as  moral guide that is meant to teach us how to properly act in the complicated situations that confront us in our daily lives.  Certainly, the idea of what is moral and what is not is something which changes over time in different societies.  Clearly, a Jew who claims to adhere to halacha should be looking to halacha to decide right and wrong, and not to the whims of society and what the general public thinks is moral.  However, when the two conflict, it certainly warrants a clear review if the halacha to decide if indeed there is a conflict, or maybe the understanding derived from halacha may not have been correct.

The moral arguments in favor of brain death have been made by others, and I will not go into too much detail.  But I owe it to the readers of this blog to review the basics.

1) Using brain death as a criteria for death allows us to harvest organs from a dead body to save lives
2) Halachic Jews generally allow the receipt of organs from brain dead donors, therefore, to prohibit the converse, i.e. Jews can get organs but not donate, leads to a situation that causes understandable animosity from people outside halachic circles.
3)  Is it moral to use very considerable and very limited resources to maintain the “life” of a person who is completely brain dead, with no chance of ever regaining any consciousness or functioning?

I know that this topic has been discussed and debated in so many forums over the past 20-30 years, and that the “lines in the sand” have already been drawn on this issue.  I don’t pretend to think that I will be changing any minds with this blog, nor will I delude myself into thinking that I have anything to say that will change the fundamental nature of this argument.

However, what I DO claim is as follows.  That if you are willing to concede that a good moral case could be made for using brain death as a criteria for death, then at least can we review the halachic literature to make sure that we got it right when we declare this person to be halachically alive when his/her brain is completely dead?

That is all the fifth principle of rationalist medical halacha demands.  That if something seems to be morally right, that we seriously examine the halacha to make sure we are learning the right lessons.

Let me take the opportunity to thank all of you who bothered to read and think about this first topic in our new blog.  I do believe that we are beginning a new adventure together, a new way to look at medical/halachic topics.  In our first discussion regarding the halachic time of death we used the five principles to suggest the following:

1. The Historical Principle when applied to this topic leads us to the conclusion that the gemara only declared that cardio respiratory death was halachic death because of the understanding that chazal had of physiology.  This would lead us to conclude that with a new understanding of physiology that we should develop a new understanding of when death occurs

2. By applying the historical corruption principle we found that even the brain death advocates were guilty of trying to inject into the gemara modern ideas that could not have been the true intent of the gemara

3. Applying the mixed up principle taught us that trying to consistently apply the gemara’s understanding of death which is based on an understanding of physiology dramatically different from what we know today leads us to conclusions that are not logical.  This forces us to try to amend and change and reinvent what the gemara meant in order to avoid decisions that are uncomfortable or clearly wrong.

4. The Common Sense principle forces us to reconsider the halachic time of death as common sense would have us conclude that brain death is death

5. The Halacha is Moral principle forces us to reconsider the halachic time of death as using cardiovascular death as the criteria for death can lead us to conclusions that seem to be immoral.

I am looking forward to hearing what you have to say, and I am getting material ready for my next topic, “Treating a non-Jew on Shabbos”

Saturday, October 30, 2010

The Common Sense Principle and the Determination of the Time of Death

Our fourth principle is the common sense principle. According to this principle, if a contemporary halachic analysis of a particular medical issue leads to a conclusion that seems to defy common sense, one should seriously consider the possibility that his/her halachic analysis may have been flawed.  Let me reiterate that this by no means proves that the analysis is wrong.  Sometimes halacha may defy what a contemporary person thinks is common sense, because the halacha may be promoting a different value system.  Nonetheless, it clearly warrants a deeper look into the issues to make sure some important factors were not missed when the halachic analysis was originally done.

So it should come as no surprise to anyone reading this blog, that common sense would dictate that irreversible brain death should be a reasonable criteria for death.  If this is not obvious to you, let me present the following arguments for this.  Remember, these are non-halachic, common sense arguments.

1) All thoughts and feelings occur in the brain
2) A person's personality, sensations, emotions etc... are all in the brain
3) All voluntary movements of the body originate in the brain
4) Once the brain is irreversibly dead, it is impossible to resuscitate a brain
5) Once the brain dies, ALL body functions cease, unless otherwise supported by artificial devices
6) Almost any organ can be transplanted from one person to another, but brain transplantation is impossible, and most likely always will be impossible
7) Even if # 6 was proven wrong, i.e. brain transplantation was possible, most of us would agree that if person A's brain were transplanted into person B's body, that the body that was formerly of person B would really now be person A with new organs, and not person B with a new brain.  This is different than the transplantation of any other organ, which simply becomes the new heart, lung etc... of the recipient body.
8) There is no such thing as an artificial device which can keep a dead brain alive, nor is it conceivable that there ever will be such an invention
9) Even if # 8 were proven wrong, i.e a machine were invented that was equivalent to a respirator for the brain, this would  simpy, be considered a machine that keeps people alive, as their consciousness and identity abnd awareness would be preserved by this machine. This is different from a respirator for the lungs which simply keeps the lungs and other organs alive while the person is actually dead. 10) Consciousness is reflected by electrical activity in the brain, this is demonstrated all the time with many medical imaging studies and tests, if we assume that consciousness is at least in part a function of our soul, then it would make sense that the irreversible cessation of electrical activity in the brain is probably a good indicator of the departure of the soul

Now I know that none of these prove anything about the halachic criteria for brain death, but tell me honestly, based on what we all know to be true about human anatomy today, if you had to pick one organ that was the central organ of life, one organ which defined whether you were alive or dead, one organ which was the seat of your soul, which organ would you choose? That is what I mean by common sense.

The common sense principle dictates that if common sense leads to one conclusion, and a halachic interpretation leads to an opposite conclusion, that this warrants a serious review of your halachic conclusion to determine if indeed halacha is trying to teach you something above and beyond common sense, or maybe your halachic conclusion was wrong in the first place.  It also dictates that if you conclude against what almost all physicians, scientists and health care practitioners today believe to be true, that you should seriously consider if your halachic conclusion might be wrong.

I have considered whether or not the CDA are wrong, and I do believe that their halachic conclusion is just plain wrong.  Brain death not only makes common sense, it is halachically correct as well, for reasons which we have already described in previous posts.

Thursday, October 28, 2010

Irreversability and the Mixed Up Principle.

There have been several comments regarding my previous post that I decided to devote an entire post in response.  See Michael's and Daniel Shain's comments.  They both really highlighted some issues that I believe really need further explanation.

First of all, I was impressed by their thoughts, and flattered that they took the time to read and understand my ideas.  This is why I started this blog, in order to have the opportunity to share my ideas and discuss them in public.  I especially enjoy disagreement, as this forces me to rethink my ideas and make sure I stay honest and true to Rationalist principles.  Thanks, and let's continue this discussion. I promise to try to remain open and even change my mind in the face of convincing arguments.

In my last post, I said that the gemara didn't say anything about the irreversibility principle, and that the reading of the CDA to deal with certain absurdities was not what the gemara meant.  I said that the gemara only said that someone who is not breathing is dead, and that it never said that only irreversible cessation of breathing was considered halachic death.  This creates a problem when dealing with modern situations such as an Iron lung, a heart lung machine, CPR and others.

Danial Shain pointed out the following: If we ever figured out a way to restart a dead brain, wouldn't that negate the concept of brain death?  In the same way, just because we figured out a way to restart a stopped heart, doesn't mean that heart death is not death!

This is a very good point, and it forces me to explain my ideas a little further.

The fact is, that irreversibility is not really being read into the gemara.  It is actually the most important criteria in the determination of death.  It is obvious that if some sort of resuscitation is possible, that it must be done.  However, the gemara thought that since the source of life is in the breath, then once a person stops breathing, it must be impossible to resuscitate him anymore, and therefore rescuscitative efforts are not necessary anymore.  This is a consequence of the gemara's view of physiology, as we previously discussed.  The gemara thought that cessation of breathing is by definition irreversible, and this is part of the reason why it was considered death halachically as well.

What modern medicine has shown, is that the act of breathing is not what controls life, but rather the brain is what controls all of the body, including the act of breathing itself.  One of the primary reasons why brain death is medically considered death is because it is considered irreversible by modern science.  In almost all protocols, the determination of irreversibility is the first and foremost criteria for determining brain death.  See here on page 4 for one example. Because of what we now know scientifically, a brain is not declared dead until it is irreversibly dead.  So in response to your question, if we can resuscitate the brain, than by definition it wasn't dead in the first place.

Now I concede that this would be true according to the CDA as well.  They can claim that they are not reading anything into the gemara, for if they knew that cardiorespiratory death was reversible, they never would consider the person dead.  So I retract that part of my previous argument.  Just to clarify, the gemara thought that cardiorespiratory death (CRD) waas irreversible and therefore said that one can determine death in the way that it did.  So the CDA are not reading into the gemara the criteria of irreversibility (which was what I said before and I am retracting).  However, they are also not willing to say based on modern eviednece that the gemara simply would no longer have said that CRD is death.  I would argue that had the gemara known that CRD is often reversible and that life can be sustained without the heart and lungs that they never would have defined CRD as death.

This is not simply a result of modern discoveries that the gemara didn't know about, this is because the gemara fundamentally believed that breathing was the source of life.  This view of physiology makes it impossible to even imagine the feasibility of life without lungs and a heart.  Knowing what we now know about physiology would have made the gemara change its' entire definition of the source of life, and hence the definition of death as well.

As far as the pesukim are concerned that indicate that breath is the source of life, I don't believe that the pesukim are any more than an qasmkhta. for example, the pasuk brought by the gemara itself, "all in whose nostrils is the breath of life", when read in context was siomply diferrentiating between land animals that breathe that were killed by the mabul, and water animals that do not breath that survived the mabul.  here is the entire pasuk (JPS translation): "21 And all flesh perished that moved upon the earth, both fowl, and cattle, and beast, and every swarming thing that swarmeth upon the earth, and every man; 22 all in whose nostrils was the breath of the spirit of life, whatsoever was in the dry land, died."

The gemara was clearly only using this as an asmakhta to support what it thouhgt to be scientifically obvious, that the breath was the source of life.  According to current understanding, the pasuk still makes perfect sense.  When the pasuk calls breathing "the breath of life" is certainly not the same as saying that the lungs are the central organ of life in the body and determine halachic life and death.  Breathing, no matter how you twist it, in some form or other, is necessary for life to be sustained, and can appropriately be called by the Torah "the breath of life".

I think that ultimately my primary argument is now even stronger.  If the gemara claimed that cardiorespiratory death was death when it was felt to be irreversible, then irreversible brain death should certainly be considered death, once we determine that it is irreversible, since we now know that the brain is what controls the entire body.

As for Michael's comment regarding holding one's breath, I assume that there was some "tongue-in-cheek" sentiments in that statement and that I answered your primary concerns in this post.  Obviously the gemara knew that breathing is not constant and that people aren't dead between breaths.

I plan on moving on to the fourth principle, the Common Sense Principal in my next post.

Tuesday, October 26, 2010

The Mixed Up Medical Principle and the Time of Death

The third Rationalist principle of Medical Halacha is the Mixed Up Medical Principle.  The importance and relevance of any legal system can be measured by how the system can be applied to rapidly changing situations.  However, the difference between the halacha and the various secular legal codes is that, at least in theory, the halacha was meant to last forever, i.e. the ground rules were never meant to change.  However, in a secular system, there is usually some mechanism by which the rules can change.  So if the people of the United States for example decide that they don't like certain rules, there is a mechanism to change the rules.  If a new situation arises, new rules can be devised to apply to the new situations.

However, in halacha, the rules are divinely directed. Therefore, the rules cannot change, and in general, we cannot make up new sets of rules.  So the interesting part of the halachic process is figuring out how to apply the same old rules to new situations that arise throughout history.  This makes it extremely important to figure out what the original rules actually were, so that we can apply them correctly to new situations.

Let us now analyze some modern situations according to the major group of poskim, the cardiovascular death advocates (CDA).  According to the CDA, the chazal defined the time of death as the cessation of spontaneous respiration.  In actuality, what the gemara said was that you can declare death based on the fact that the victim buried in the rubble was not breathing on his own.  The CDA believe that we can derive from here that anyone who has stopped breathing on his own (and since according to the gemara breathing and the heartbeat are connected - he also has no heartbeat - see the Chacham Tzvi as mentioned in previous posts) is halachically dead, and the converse as well, that anyone who still has a heart beat or is breathing is halachically alive.

When we try to apply this rule to modern situations, this way of learning the gemara leads to several absurdities.  Anyone involved in modern day search and rescue knows that when you discover a victim at the scene of an accident, even if he is not breathing and/or his heart is not beating the first thing you need to try is CPR.  Only after this fails can you declare him/her dead.  In applying the rules of the gemara according to the CDA, there would be no obligation to perform CPR!

Another similar scenario would be the person on a "heart-lung" machine (usually used in cardiac surgery - the blood is diverted from the heart and lungs during surgery and it acts as a temporary heart and lung while the heart is surgically repaired).  In these cases it would seem that the patient is halachically dead!

The CDA poskim (see Rabbi Bleich here - bottom of page 90) do recognize this problem with their interpretation, and they therefore add the condition of "irreversible cessation of spontaneous respiration" i.e. that the gemara only meant to say that he/she is dead IF there is no chance of getting the person to breathe again.  But this is clearly something they are reading into the gemara, the gemara could not possibly have meant this. 

This is clearly a product of poskim reading into the gemara conditions that are simply not there.  There is no question in my mind, that the gemara meant exactly what it said.  According to the gemara, if a person is not breathing, you can assume that he is dead.  But the CDA have some more difficulties trying to apply this to more modern scenarios.  What about the polio patient who can't breathe on his own, but requires an Iron lung? Is he halachically dead?  What about the person under anesthesia who requires a respirator to breathe because the medications of anesthesia do not allow him/her to breathe?

Since the CDA take the gemara at face value, they have to make all sorts of twists and turns in order to explain how to apply the principle of  cardiorespiratory death to situations that the gemara simply could not have possibly conceived of.  So many of the conditions that they make up may sound logical, but they are clearly not what the gemara intended. 

So how then are we supposed to apply the halacha to modern situations? Is it impossible? Should we simply throw out the halacha and say that it is irrelevant to modern medicine?

Of course not!  We need to do the obvious! The gemara applied its understanding of physiology to teach people in those days how to determine death.  The gemara did not know about respirators, iron lungs, and CPR! The gemara thought that life resided in the breath of the nostrils which then gave life to the beating heart.  So the gemara said that you have to listen to his breathing, and or feel for the heartbeat to determine if the person is dead.

We on the other hand, should learn from the gemara exactly that same principle!  Since we know that the brain directs all of the body's actions including breathing, and we know that consciousness resides in the brain, also know that in order to determine death we need to make sure that brain is no longer functioning in order to determine death!  In this way we can be very consistent in the application of halacha.  Just as chazal determined death by searching for signs in life where they thought the source of life resided, so should we! If life can be restored by CPR, the we are obligated by halachabecause the brain is where the source of life for the body resides.

In fact, the CDA all agree that CPR would be required if there is a chance to resuscitate someone.  They explain this usually by using the irreversible cessation of respiration criteria that we mentioned above. However, they are usually unwilling to use this same criteria the other way around, i.e. if the person's heart and lungs are still breathing/beating they still consider the person alive despite the fact that he will never be able to breathe on his own due to brain death!  This, to me, is mixed up.

Thursday, October 21, 2010

Decapitation, Brain Death and the Historical Corruption Principle

The second principle of Rationalist Medical Halacha is the Historical Corruption Principle. It is not uncommon that when a posek ignores this principle, that he may either ignore the fact that the halachic precedents were based on a different scientific understanding than his own, or worse, he may project his own understanding of science onto the earlier poskim and onto Chazal and assume that they meant something other than their true intention.  Often it is the more scientifically inclined poskim who seem to make this particular blunder.

We mentioned in previous posts the two major current opinions, one held by the  the brain death advocates, and the other by the cardiorespiratory death advocates.  In the last post, we demonstrated how to apply the first Rationalist Principle to the primary Talmudic source for the cardiorespiratory death advocates.

Now I will focus my attention on the brain death advocates, and demonstrate the second principle of rationalist medical halacha at work.

The primary source for the brain death advocates is the Mishna in Oholot 1:6, which reads as follows:

A person does not impart impurity (the impurity imparted by a dead body) until his soul leaves him....If their heads are removed, even though there are movements - they are impure, similar to the tail of the lizard that it moves

The argument simply goes as follows:  If the Mishna supports physical decapitation as death, even if there is still movement (and presumably this would be any movement - even heart motion) then clearly physiologic decapitation is also death halachically. Although this argument makes a lot of sense, I don't think this approach stands up well to the scrutiny of the Rationalist approach.  In short, I don't think it is possible to claim that the gemara equates physical and physiologic decapitation.  I still believe that the Chazal believed in cardiorespiratory death, as indicated in Yoma, but that they believed that physical decapitation should be considered death anyway, for other reasons which I will explain.  In fact, the entire concept of physiolgic decapitation would have been so foreign to Chazal's understanding of anatomy and physiology that they probably would have thought that such a suggestion would be absurd. Let me explain why.

When the brain death advocates bring the Mishna in Oholot, they are forced to explain how they know for certain that physiologic brain death would be considered death according to chazal.  It is well known that the chief proponent of the physiologic decapitation idea (PDI) is Rabbi Dr. Moshe Tendler Shlita. In an article published in 1990, Rabbi Tendler describes how he derives the PDI from this mishna.  The Rambam explains the mishna in Oholot (why the movement of a lizard's tail is not real movement): "This occurs in some living animals because the source of motion does not spread to all its limbs from its' source and one place rather it is spread throughout the body".  In Rabbi Tendler's words, the Rambam holds (and explains the Mishna this way) that there is a difference between organismic death and organ death i.e. although the organ may be "alive" the organism (the entire animal) may be dead.  This happens when the movement is not directed by its source, which is of course, according to Rabbi Tendler, is the brain which controls movement.

Now this is a classic example of the Historical Corruption Principle in action.  The Rambam did not believe that the brain was the source of motion! The Rambam (see Dr. Reichman's article, note 67).  The Rambam believed that the source of motion was the heart!  This can be found in numerous places in his medical writings, and in the Moreh 1:38,72.  If you think this sounds strange, let us review for a moment a brief history of the ancient understanding of the function of the brain.

According to Aristotle, the function of the brain was to cool the innate heat of the heart.  Thoughts, feelings, and decisions were all made in the heart. (see Aristotle, On Sleep and Sleeplessness, Part Three, trans. J. I. Beare. [Online here, scroll to second-to-last paragraph.].  Only after Aristotle did the Greek thinker Herophilus identify the brain as the source of intellect.  It wasn't until the time of the Roman philosopher Galen (CE 129-199) that it was discovered that the brain wills and controls motion.  The Rambam (see Max Meyerhoff "Maimonides Criticizes Galen Medical Leaves 3:1 1940) actually sided with Aristotle and believed that although the brain had a function in controlling movement, the actual origin of movement was the heart.  So how strange indeed it is that Rabbi Tendler tried to use the Rambam's explanation of the Mishna in Oholot  to prove that brain death is indeed death.  According to the historical principle, we must understand the Rambam according to HIS OWN understanding of physiology, not by imposing modern ideas and imputing them to him.  The Rambam clearly did not mean to explain the mishna that the reason why decapitation is death is because the central source of motion is dead if he didn't believe that the source of motion was the brain!

What then is the pshat in the Rambam? Why is physical decapitation considered death if the body is still moving?  For that we need to understand the significance of the brain according to the Rambam.  Although this is not the place for a detailed analysis of the Rambam's pshat in the Mishna, the bottom line is that the brain is an "eiver shehaneshama teluyah bo" and the Rambam goes out of his way to say that even if the head is attached by skin and soft tissue, but the spine is severed (like what would happen in a hanging) that the person is dead.  If anything, this could prove that the Rambam would not hold of PDI, or he would have went even farther than that and said that even if it is totally attached, but not functioning, the person is dead, but if I said that, I may be guilty of violating the historical principle myself.  If one looks carefully at Rabbi Kapakh's translation of the Rambam Peirush hamishnayot (my English translation of the Rambam Peirush on the mishna in oholot is based on the R' Kapakh version), one will see that the Rambam explained that in certain simple LIVE creatures, such as the Leta'ah (some sort of lizard presumably) the motion is not centrally directed, and thus there is a lot of movement even after the tail is severed.  This movement proves that there is such a thing as movement that does not derive from the central life giving source i.e. the heart. In the same way, the mishna teaches us, that after death there could be movement that does not constituite life at all.  That is all the rambam meant IMHO.

Let's look at one more area where the brain death advocates make the same blunder.  In that same article, Rabbi Tendler brings another important source, the Shulchan Arukh, Yoreh Deah Chapter 370, based on a gemara in Chullin.  The title of the chapter is "Who is considered dead even though he is alive".  The Shulkhan Arukh (SA) lists two such people,one whose neck is broken, and the other who has a severe injury to his back which is split open.  The SA explains that they are considered halachically dead, even though they may still be moving.  However, a gosses (someone in the throes of death) is still considered alive, even with multiple wounds or a slit throat. Rabbi Tendler asks, "Why would the first cases be regarded unequivocally as instantaneous deaths, and the others not so regarded?" and he explains, "The answer is that such individuals experience a condition in which their blood pressure drops instantly due to a massive wound.  Blood flow to the brain is interrupted, and they die because their brain dies within seconds or minutes of that interruption ..."  So brain death is once again being injected into the SA, even though it is obvious that this was not the intent of the SA or the gemara upon which the SA was based.

It is important to mention that there is another group of authorities who advocate brain death as a possible criteria for halachic death, but from a completely different angle than the PDI of Rabbi Tendler and his supporters.  This is most clearly articulated by Rabbi Dr. Avraham Steinberg in several articles.  See this link here for one article easily accessible online.  The bottom line of this opinion is that cardiorespiratoy death is the halachic definition of death as the gemara in yoma indicates. However, since the brain stem controls respiration, it should be obvious that if you can prove that the brain stem is totally dead, than by definition spontaneous respiration has ceased.  In other words, brain death is only considered death because that causes breathing to stop.

This approach makes a lot of sense but it should be obvious that the gemara never intended to teach us that the death of the brain is the proximate cause of the cessation of respiration.  However, at least it gets around the problem of the Historical Corruption Principle, as no claim is made that the gemara intended to teach us about concepts which would have been foreign to chazal.  This is really another version of the opinion of the cardiorespiratory death advocates, with the understanding that the brain controls the action of breathing.

There is obviously much more to be said, but I think I would like to move on next time to the third principle and describe some of the strange and confusing consequences of trying to apply Halachic death criteria to modern medical situations.  Looking forward to your comments.

Monday, October 18, 2010

Medical Basis of Cardiorespiratory Death According to Chazal

We are now ready to take on the topic of halachic determination of death according to the unique approach of our blog.  I will try to analyze it using each one of the five basic principles, which can be found in our first post here.  The first principle was called the medical basis of halacha principle.  According to this principle, we need to understand the medical basis behind the halachic decisions of the Rabbis, and this includes the Chazal in the Talmud itself.

Let us recall the two primary Talmudic sources that we mentioned, the gemara in Yoma and the Mishna in Oholot.  Two basic issues need to be understood. Number one, what was the medical understanding of Chazal that influenced these decisions, and  number two, how much of the decision in the gemara is based on Torah and tradition - as opposed to based on science.  I must admit at the outset that it may be impossible to prove beyond any doubt what chazal were saying as a mesorah (tradition from Sinai) and what was being said as a result of their scientific thinking.  However, I do believe that I can convince you that there is overwhelming evidence that will point to one direction or another.

Please refer to Dr. Reichman's article for a review of the state of "scientific" understanding and Greco-Roman Physiology at the time of chazal.  I do not have the space here to repeat the work that he has already done.  If you don't have the time to read it, you can still understand this post, but you may not fully appreciate the power of my argument.

Let me call your attention to several famous debates that were raging in the philosophical world at the time of chazal.  One important argument was the argument over which organ developed first in the development of the fetus.  It was assumed that this organ would be the source from which all other organs are formed.  Aristotle maintained that the heart formed first, Lactatius of Nicomedia believed that it was the head, Alcomaeon believed that it was the navel, and Galen felt that it was the liver.

It is also very important to bear in mind the principle of innate heat and the function of respiration and the heart.  The Greeks, Romans, and indeed until William Harvey's discovery of the circulatory system in the 17th century, the educated world believed that the heart was the source of the primary life-giving force that they called the "innate heat".  The innate heat resided within the heart, and was mixed with air to become the vital force pumped from the heart throughout the body, and this was the life giving force to the body.  According to Greco-Roman thinking, the function of respiration was to keep the innate heat cooled and in check so that it didn't consume the entire body.  It also provided the "pneuma" (air) which mixed with the innate heat to become the vital heat, the ultimate life source for the body. Without the pumping of the heart, it is assumed that the life force emanating from the heart would not be pumped through the body, hence the heart was considered the place where the source of life resided.  So respiration together with the innate heat was the source of life.  Interestingly, the famous Roman physician, Galen, whose thought dominated medical thinking until the renaissance, did experiments that demonstrated that the brain actually controlled movements and breathing (in contrast to Aristotle and virtually all thinking before Galen's time), but even he still agreed with the principle that the heart was the source of life for the entire body.

With this basic background in mind, we can use our first principle to reanalyze the gemara in Yoma, and also compare it to a corresponding gemara in the Talmud Yerushalmi Yoma 8:5.

Here is the Babylonian version:


If debris falls on someone (on the sabbath), and it is doubtful whether or not he is there, or whether he is alive or dead ...One should open the debris for his sake. If one finds him alive one should remove the debris, and if he be dead one should leave him there (until the Sabbath day is over)


Our rabbis taught: How far does one search? until one reaches his nose. Some say: up to his heart. If one searches and finds those above to be dead, one must not assume that those below him are surely dead. Once it happened that those above were dead and those below were found to be alive.  Are we to say that these tannaim dispute the same as the following tannaim? For it was taught: From where does the formation of the embryo commence? From its head, as it is said "Thou are he that took me (gozi) out of my mother's womb" and it is also said "cut off (gozi) thy hair and cast it away"  Abba Shaul said: From the navel which sends its roots into every direction.  You may even say that [the first view is in agreement with] Abba Shaul, inasmuch as Abba Shaul holds his view regarding the first formation [of the fetus] as "everything develops from its' core (middle)" but regarding the saving of life he would agree that life manifests itself through the nose especially, as it is written "In whose nostrils was the breath of  the spirit of life"  Rav Papa said: The dispute only arises from below upwards, but from above downwards, once one has searched up to the nose, one need not search any farther, as it is said, "In whose nostrils was the breath of  the spirit of life"

Here is the Jerusalem Version:

How far can one dig [to determine the death  of a victim]? There are two opinions. One says until the nostrils because these are the source of life and Hurna says until the navel because from here the body grows.

It should be obvious to the reader that Chazal and the philosophers of the contemporaneous non Jewish culture had very similar ideas about the source of life in the body and the development of the fetus.  The argument over what body part serves as the building block of the fetus, and the discussion of the breath as the source of life correspond strikingly to the thoughts and ideas that were believed by the general Greco Roman philosophical community.  Indeed, the idea that one should assume that the body part from which the fetus develops is the source of life, is one that also appears in the philosophical literature of the time (see Aristotle "Generation of Animals Book 2:1).

This leads to the big question.  When Chazal stated that the breath is the determining factor as to whether a person is alive, and they brought the pasuk  "In whose nostrils was the breath of  the spirit of life", what exactly was going on?  Were Chazal taking what was an assumed belief by educated people at the time, and using the pasuk as an asmakhta of sorts, or were they learning the principle that breath is the source of life from the pasuk.  This is a crucial question. Because if the pasuk is the source for this knowledge, then we are dealing with a Torah concept of divine origin. However, if they believed in the breath as the origin of life based on the basic understanding of physiology that was current in their day, then one can argue that the only reason they determined that cardiorespiratory death was the definition of death was because of their scientific beliefs.  However, now that we know otherwise, death may be determined by other factors, such as brain death.

In fact, The Chacham Tzvi, in Teshuva # 77, which we mentioned in the last post, describes Galenic and Aristitelian medicine in excrutiating detail when he explains the opinion of chazal. this is an integral part of his opinion that cardiorespiratory death is halakhic death.  He basically assumes that the heart is the place where the life force resides, and uses that to explain Chazal.  R Yonasan Eibushitz, in the Kreisi U'Plasi Yoreh deah 40:4 attacks the Chacham Tzvi based on a consultation that he had with the University of Halle.  The theories of William Harvey were already known to them, and R Yonasan clearly states that the heart is nothing more than a pump, where no life force resides.  We will get to this argument in more detail later, but for now just keep in mind that they both assumed that Chazal's determination of the major organ of life depended on the scientific understanding, NOT based upon Chazal's Torah understanding.

Now this begins our rationalist analysis of the time of death according to Halkhah using our first principle.  In my next post, I plan on applying more of our principles to this topic to see where it goes.  Looking forward to your comments.

Sunday, October 17, 2010

Halachic Definition of Death

I chose as my first topic of discussion the Halachic Definition of Death. My reason for choosing this, is because it was while reading an article by Dr. Reichman in the Torah U-Maddah journal that I was inspired to think about medical halacha in a new rationalistic and historically accurate way.  I don't claim at all to be the first person to think of this approach, but I hope to try to apply it to many areas where halacha and medicine intersect.

There has been much written about the subject, and I do not want to bore you with a review of the entire subject in detail.  However, I must give a basic review of the topic, and explain the various sources and halachic opinions in order to set up how we can apply our Five Principles to see if a Rational Halachist might come up with a unique conclusion that could affect practical halacha.

Defining the time of death is halachically crucial for many reasons.  However, one of the most contentious topics that are heavily affected by the timing of death is the issue of organ transplantation.  As a general rule, as long as a person is halachically alive, one may not harvest his/her organs even in order to save another life.  One can not kill one person to save another.  However, once a person is dead, it then would become a mitzvah to harvest his/her organs in order to save someone else's life.  The majority of poskim would agree with the above statement.

It is also generally true that in order to harvest a fresh organ, it generally needs to be removed before it begins to degenerate. Since this process begins virtually instantaneously upon the cessation of the flow of fresh oxygenated blood  to that organ, doctors will try to harvest the organ while the patient's heart is still pumping oxygenated blood into the circulation.

This leads to the big problem, with which most readers of this blog are probably familiar.  If a person is declared dead by modern medicine because his/her brain has ceased functioning, but his/her heart is still beating, is he/she dead or alive according to halacha.  If he/she is dead, the organ can be harvested.  If he/she is still alive, we cannot remove the organ as this would be tantamount to murder. With this introduction behind us, let's get to work.

All halachic discussions of the time of death start with the following basic sources. 

The Mishna in Oholot 1:6 teaches us that physical decapitation is considered death, despite the fact that there may still be some movement of the body.  This is the source for the poskim who support brain death as an appropriate criteria for halakhic death.  The argument is basically that if physical decapitation is death, than physiologic decapitation must be death as well, and that is indeed what happens when a person is brain dead.  This is the conclusion of Rabbi Dr. Moshe Tendler and his interpretation of Rabbi Moshe Feinstein's responsa.

The gemara in Yoma 85a is the primary source for the heart death advocates.  This gemara is referring to the determination of death in a person who is stuck under a collapsed building on Shabbat.  The conclusion most draw from this gemara is that once we determine that the person is no longer breathing and/or that the heart is no longer beating that he/she is considered dead. The ultimate source of this idea is the pasuk in Bereishit 7:22 "all in whose nostrils was the breath of life..."

I admit that I am oversimplifying, but if you want to learn more about this debate in detail, see this great list of articles on this topic here on the HOD society website.

From these sources, we can trace the issue throughout halachic history.  The Rambam codifies the criteria of respiratory death in Hilchot Shabbat 2:19, and the Shulchan Aruch follows his lead in Orach Chaim 329:4.  Although there are hundreds of responsa that reference this topic, two key responsa need to be mentioned here.  One is the teshuva of the Chacham Tzvi # 77.  In this teshuva, the Chacham Tzvi gives a lengthy and erudite explanation of his view on the function of the heart and lungs and what the halachic definition of death is.  He says that although the cessation of respiration is the Talmud's criteria for death, this is because the cessation of respiration is an indication that the heart has stopped beating. The beating heart however, according to the Chacham tzvi is the true indicator of life.

The second is the teshuva of the Chatam Sofer Yoreh Deah # 338 where he follows the lead of the Chacham Tzvi and states that since the heart is the source of life, that any indication of a heart beat or pulsation means that the person is still halachically considered to be alive.

Let us conclude this basic review of the sources with the statement that the majority of contemporary Poskim seem to agree that as long as the heart is beating, the person is halachically alive.  Some Poskim though still support the concept of brain death based on the decapitation argument.  I hope in my next post to subject this topic to our Five principles and see how it stands up to the rationalist approach. I invite any of you to try your hand at applying the principles in the comments section, and we can see if we agree. Take care, and shavua tov!

Friday, October 15, 2010

My First Post - The Five Principles of Rationalist Medical Halacha

I am so happy to finally introduce my new blog to the world, and i hope to develop this into a major influence on the Orthodox Jewish world in terms of our approach to deciding medical halacha.  I am sure you are all wondering what in the world I have in mind, aren't there numerous books, articles, journals etc... that deal with this topic already?  What could this blogger possibly think he can do to change the way we think about medical shaalot? What does he mean by Rationalist Medical Halacha?

Indeed, there are many poskim that are genuinely expert in many areas of medical halacha, and faithful Orthodox Jews rely on these fine Rabbanim to guide them through the complicated details of thousands of  shaalot that come up in our lives.  The shaalot are related to so many areas, such as end of life issues, Shabbat issues, Pregnancy issues, and on and on. However, the purpose of this blog is to present a consistent and rationalist way to analyze ALL of these topics.  I am warning you now though, that your local Orthodox rabbi may not endorse some of the conclusions we make here, even though I hope you will be convinced when you read my presentation of each topic.  We will be treading on dangerous halachic ground, so if that scares you, read another blog.

As we develop each topic, you will come to understand how these principles are used by the rationalist system, and you will appreciate the value of each one and why they are important. Admittedly, these can be applied to many areas that are not related to medicine, and while you should feel free to apply them wherever you want, this blog will be devoted to medicine.

The basic assumptions and rules of rationalist medical halacha are as follows:

 1)  The Medical Basis of Halacha Principle - The Halachic decisions made by the rabbis throughout the ages, from the Talmud until this day are ALL based on their understanding of medical reality.  As an Orthodox Jew, we do believe that the halachic PRINCIPLES used to make these decisions are of divine origin, as part of Torah Shebaal Peh.  However, the medical understanding that led to the halachic decisions in specific cases is not of divine origin, but rather it was based on the medical knowledge of the person/people who are writing the decision.

2) The Historical Corruption Principle - As history took its course, many poskim used the precedents as found in the previous literature when they made their decisions.  Sometimes, they took into account the changes in medical understanding when they made this decision, but in other instances the poskim did not understand how the medical understanding of their predecessors affected the decisions that they made.  This created a situation where a precedent was set based on erroneous medical understanding, and then it became reinforced by the subsequent halachic literature, although it should have been overturned due to new knowledge.

3) The Mixed Up Medical Principle - Most contemporary poskim consult physicians or other experts when they render halachic decisions today.  While this is clearly appropriate, this also creates a confusing mix of ancient and modern scientific knowledge when the halachic decision is rendered.  clearly the ancient torah knowledge SHOULD be applied, but ancient medical knowledge is often confused with ancient Torah knowledge, which leads to some very hard to understand conclusions.

4) The Common Sense Principle - Some Halachic decisions seem to go against common sense.  In many cases, this is simply a result of not appreciating true Torah values in contrast with the values of the rest of the modern world.  In these cases we are clearly obligated to try and understand the Torah values, and implement them into our lives, in contrast with the whims of modern society. However, sometimes simple common sense should lead you to understand that the psak halachah you may have received is wrong.  If an analysis of the sources based on our principles leads one to conclude that the Torah and common sense actually do agree, then one should live by common sense, and not according to what is obviously an erroneous psak halacha.

5) The Halacha is Moral Principle - Halacha is more than just a bunch of meaningless legal requirements.  it is also a moral code that contains lessons for all of us, even non-Jews.  If it seems to you that what the halacha is in conflict with what you understand to be basic morals, then you should seriously consider if your understanding of the halacha is correct.

The first topic we will discuss is the time of death in halacha.  I will try to stick to a consistent format with every topic. First I will discuss the basic issue at hand, and will summarize the various contemporary halachic approaches on the issue.  I will then give a brief explanation if how these opinions were rendered through the contemporary halachic process.  We will then analyze the sources using the five principles of rationalist Medical halacha, and determine if our approach leads to the same conclusions as the mainstream contemporary poskim.  As much as possible, i will give sources and references and links for you to do your own research.  I love comments, both supportive one's and critical one's, and I will try my best to respond to comments whenever possible.