Is Abortion Prohibited by Halacha?

My goal with this series is not to determine the permissibility of abortions in halacha.  Rather, I am going to take you on a journey of what is really a strange and unusual halachic topic.  I am going to show you how incredibly divergent and diverse the various halachic opinions regarding abortion are.  We will start with the most lenient opinion found among the rishonim, the rishonim who held that there simply is no issur of abortion at all.

The only Torah source that discusses abortion is in Sh'mos 21:22-23 where the Torah discusses a case where a man strikes a pregnant woman and causes her to miscarry.  Though it is clear that the man did something wrong by striking this woman, no direct inference can be made from this parsha regarding whether or not causing an abortion intentionally with maternal consent would be permitted or not.  The only two obvious conclusions that we can make from this parsha are as follows:

1) That the status of the fetus is clearly not the same as the status of an adult independent human being (if it were equal, then this would be a case of murder be'shogeg, not a monetary case)

2) That in some sense, the parents of this fetus suffered a significant loss which requires compensation by the responsible party.

Let me emphasize here that when the Torah was given there was no such thing as a safe medical procedure done with consent and anesthesia to voluntarily terminate a pregnancy.  This will be a very important point as we proceed with our analysis, and we will come back to this later.

In the gemara, we do have some references to the act of the intentional termination of a pregnancy.

The heter to intentionally kill an unborn child when it endangers the life of the mother is clearly written in a mishna in Oholot 7:6 and it is therefore an undisputed halacha among the poskim.  The reasoning is under dispute among the rishonim, but I will not get into that issue right now.  However, it is not incorrect to say that this halacha in Oholot is consistent with what we learned in the pasuk in shmos, that until a child is born, it does not have a status of human being on the same level as that of the mother.

We then have a famous gemara in Sanhedrin 57b where a baraita brings in the name of Rabbi Yishmael that a Ben Noach gets capital punishment if he intentionally causes an abortion, which he derives from a pasuk.  Rashi takes the simple understanding of the gemara that this prohibition applies only to a non-Jew, whereas for a Jew the prohibition of murder only applies to a baby once he/she is born.  Rashi supports this by bringing the mishna in Niddah 44a which says that one who kills even a one day old child is liable for capital punishment, (and presumably not before one day of life).  Tosfos there D'H Ihu assumes that it is muttar (a language which they repeat twice) to kill a fetus before it is born, and they therefore deal with the issue of how it could both be muttar to be mechalel shabbos to save a fetus on one hand, but muttar to kill the fetus on the other hand, but that is beyond the scope of this series.

So we have Tosfos telling us that it is muttar to intentionally abort a fetus, and their source is the mishna in Niddah.  The simple way to understand Tosfos is that the braita in Oholot was only the opinion of Rabbi Yishmael.  Indeed, the language would suggest that this is the case as it says, "Meshum Rabbi Yishmael Amru ..." so Tosfos is simply paskening like the Chachamim.  This is indeed the overwhelming opinion among the poskim, that Tosfos held that halacha lemaaseh, abortion is permitted both for Jews and for Gentiles (see Maharatz chayas in his comments on that page, Maleches shlomo, Yakhil Shlomo, Shut Toras Chessed, Beit shlomo, Tzitz Eliezer and more). The explanation for this opinion is a little less clear, but R' Chaim Ozer Grodzenski in Shut Achiezer 3, 65:14 explains that Tosfos is paskening like the Chachamim (this is also the explanation of many other acharonim, including Shut Toras Chessed, Even Haezer 42:5, and Tzitz Eliezer 14 siman 100:2).  There are other well known places where Tosfos contradicts this opinion and seems to hold that there is some level of prohibition with aborting a fetus, and the attempts to answer this stirah are many, but I don't have the place here to go into the details.  However, this is the clear opinion at least of this Tosfos.

Tosfos is not alone among the rishonim who held that abortion is muttar.  The Rosh, as brought in the Shita mekubetzes in Massechess Erechin 7a also agrees that abortion is muttar, and the Ran in Chiddushei HaRan Chullin 58a seems to agree as well.  The Achiezer that we brought before clearly lumps the opinions of the Ran and Tosfos together, as he brings the Ran as a shita who agrees with tosfos that there is no Torah prohibition against abortion.  Many poskim assume from the Ran that although there is no issur Torah there is an issur miderabbanan, but the Ran does not say that at all.  His words are as follows: (my translation) "[the reason why a pregnant woman who is liable for capital punishment] gets executed and we do not wait until she gives birth ... Is NOT because the child is only a part of the mother (ubbar yerekh Imo) , but it is because she is liable for the death penalty, and we do not delay her justice, and for the child we are not concerned because he has not yet come out into the outside world (yatzah l'avir ha'olam)".  Exactly how some authorities derive from here that the Ran held there was a rabbinic prohibition against abortion is something that has always eluded me, as the Ran is simply saying that we are not concerned about killing a fetus that hasn't yet been born.

Regardless, we will get to the opinion that abortion is assur midrabbanan and the true opinion of the Ran in a later post.  For now let it suffice to say that we have at least two major Rishonim (Tosfos and the Rosh), possibly three (if we add the Ran), that hold that abortion is muttar. Period.  We also must mention here that some acharonim felt that Tosfos only meant that it is muttar for a Jew, and that he really does pasken like Rabbi Yishmael, not like the Chachamim.

So this is opinion number one, the most lenient one.  In our next post, we will deal with the next opinion, one that is slightly more stringent, and the Rosh and the Ran will play an important role again.  Hang in there and you'll see what I mean.

Abortion as a Rational Halachist

I have been thinking for a long time exactly how to approach the topic of abortion in this blog. The two topics that we have already discussed - the halachic definition of death, and the rationale for treating a goy on shabbos - were very different.  The first topic we analyzed with our five principles, and discussed how changing understanding of physiology could affect the way we define halachically when death occurs. The second was more of a moral dilemma, and we demonstrated how a re-analysis of the sources can lead one to a different understanding of the halacha then that which is often presented in many of the contemporary works of halacha.

Abortion is a different type of issue and we can approach it from many different angles.  It also has the unique distinction of being a very highly charged political issue, with two very active and vocal schools of thought fighting each other in the public and political arenas.  So it goes without saying, that Orthodox Jews want to know what the position of the Torah is on this volatile issue.  I have spent many years researching the subject in the Torah sources and there has been lots of ink spilled.  However, there is one very fascinating observation that i have made as I traveled through the traditional sources on abortion that will be the underlying theme of my blog posts on this topic.

I actually believe that the halachos of aborting a fetus is quite unique among the many areas that halacha deals with.  That is because the fundamental laws that pertain to abortion are extremely unclear from the Torah and chazal.  This has led to a situation where the later halachic authorities have scrambled to try to find out what exactly the fundamental issues are that need to be understood in order to decide practical halacha. The differences among the poskim regarding the fundamental understanding of exactly what prohibitions may be involved in aborting a fetus leads to dramatically different practical conclusions. I am sure that many of you are wondering what I mean, so I will explain a little more, and I promise that it will become clear as I develop these ideas.

I also need to start with the caveat that I am not going to try to take sides in this issue.  You are all aware that I am totally not afraid to promote halachic positions that I believe in, even if they are controversial.  So I am not afraid of saying what I believe to be true.  However, what I will set out to do here is demonstrate how unusual and fascinating this subject is, and how disparate the opinions of the poskim are, and explain why they are so different.  At the end I will also state what i believe is the right public position for Orthodox Jews in terms of politics and the legal system, and I am aware that this may lead to some heated and excited discussion.  However, my main point is not to promote any political position on abortion, but rather to bring you along on a unique journey through most interesting medical halachic topic.

Many if not most of the sources I will use are easily available and quoted in the Encylopedia of Jewish Medical Ethics by Dr Avraham Steinberg in his entry on abortion, so I owe him a great debt in compiling much of this material.  However, I will have my own take on these sources which you will understand as we proceed.

My first post will be "Is Abortion Even Prohibited?" and I will trace the shita of those poskim who hold that there is no real issur at all to perform an abortion.  This is not meant to give you an impression of what the halacha is, just to start with the extreme lenient opinion.  We will then work our way up until we reach the most stringent.

Is it "Only a B'Dieved?"

I started this discussion of treating a goy on shabbos with a description of my learning and research throughout my career, and the moral dilemmas that I faced. What happens when I have to be in the hospital on shabbos, and I have to face an actual, real live, gentile?  How do I treat him/her?

The halacha, is clear, no matter what I am supposed to treat the patient, so does it really matter why?  The bottom line is, yes, it does matter.  If the reason why I am supposed to treat him is because I am afraid of the repercussions, then it is a bedieved.  I should do everything I can to NOT be in the situation.  This type of attitude really does make a difference to my patients. Maybe it is intangible, maybe it is unmeasurable, but it does matter.  Being a doctor takes devotion, compassion, and empathy.  To be an effective physician, you have to be more than a scientist, you actually have to care about your patients. More importantly, you have to believe in the importance and value of what you are doing!

Now that you have seen and read my analysis in this blog, you know that it is the Torah from which I derive the incredible value and importance of treating this person, this human being.  And yes, this importance is such that it even transcends the prohibitions of shabbos.  Once we have given all human beings that live in and take part in a moral and righteous society, the status of a ger toshav, we can apply the words of the Ramban (Sefer HaMitzvot Mitzvah 16 - my own translation)

That we have been commanded to support and maintain the lives of the ger toshav, to save him from his enemies, so that if he were drowning in a river or if he was stuck underneath rubble, that with all our strength we will involve ourselves in saving him, and if he were sick, we will heal him ... and this is considered pikuach nefesh that supersedes the Shabbos, and this is what God meant when He said in His Torah ..."When your brother is destitute ... and you shall support him and the ger toshav, and he shall live amongst you ..."

To say that this reflects the true sentiments of the Torah would be the understatement of the century, as anyone who has ever read the Bible would tell you.

This of course does not mean that Jewish doctors should go out of their way to be in the hospital on shabbos to work.  Of course the Torah wants us to keep shabbos.  Of course the Torah wants us to spend shabbos at rest with our family, in our shuls and communities.  Of course we should try as much as we can to let our competent and caring gentile colleagues take hospital calls on Shabbos while we take their Sundays etc....  But once we are there, it is not at all a bedieved to take care of people. It is doing the work of the Ribbono Shel Olam, and it should be done properly and with enthusiasm.

Now I am sure that many of you are looking forward to my next topic.  I still have some more to say, and I was going to write a post about how the five principles of Rationalist Medical Halacha have been applied with my analysis of this issue.  However, I am eager to start with a new topic, so I will leave that one out for now.  So let me conclude with an invitation to say whatever you want in the comments.  I begged you before to reserve judgement until I finished.  Thank you so much for your patience, and now we can take our discussion into the comments section, and all holds are off, say whatever you think.  The next topic will be abortion.  Please give me some time to get my thoughts together, but I promise to do my best to start that subject asap.

So What About Everyone Else?

Please allow me to briefly interrupt this series with a tefillah for the safety of our fellow Jews and human beings that are in harms way in the Haifa area as a result of this terrible forest fire.  May the Ribbono Shel Olam comfort the grieving families of those who have perished, may He restore to good health those that have been injured, may He restore the lives of those who have lost their homes, property, and possessions, and may He give strength to those heroic people who are working to control the blaze, and restore life to the Haifa region.  May all of us accept upon ourselves, in the zechus of the many victims of this fire, to be more compassionate in all of our dealings with all fellow human beings.

We are now going to continue with our analysis to the next obvious question.  In our last post we essentially extended the obligation to save life on shabbos to non-Jews by two halachic mechanisms.  However, both of these opinions are based on the assertion that today's gentiles are to be contrasted with the idol worshippers of the time of the Chazal.  Whether we take the Meiri's approach that they are included in "Am Sheitcha beTorah uveMitzvos, or the approach of the other authorities that they are considered gerei toshav, our obligation to save their lives is dependent upon the fact that today's gentiles are part of a just and moral society.

This leads to the following question.  According to the Meiri, a just and moral society is by definition a monotheistic society. According to the other authorities, to give a gentile the status of a ger toshav, he would need to keep the seven Noahide laws, including the Laws concerning Avodah Zarah.  Let us assume that Christianity and Islam are monotheistic religions. (The question of Christianity and avodah zarah is a major issue, but not one that i plan on dealing with here in this blog, as almost all of the authorities that we have mentioned until now do not consider Christianity to be avodah Zarah, at least for gentiles.  This can be due to their understanding of Christianity itself, or because Shituf is not prohibited for a non-Jew or some other rationale. In an article by David Berger, he has much difficulty accepting this, but we cannot deny the fact that the meiri and the other authorities explicitly did not consider Christianity to be avodah zarah).

So what about Hindus, Buddhists, other religions, and indeed even outright atheists that may still believe in and establish what we would otherwise consider moral and just societies?  Can we desecrate the Shabbos to save their lives as well?  After all, isn't belief in One God one of the seven basic Noahide Laws?

There are several ways to deal with this issue.

For the first approach I must give credit to a very thorough article by Rabbi David Berger, that you can access here.  See page 26 and 27 of his article where he presents Moshe Halbertals analysis of the meiri as follows.  It is clear from Halbertal's study of the Meiri that the reason why the Meiri felt that monotheism was necessary in order to treat gentiles equally was because non-monotheistic societies were corrupt and immoral.  There are references in the Meiri that suggest that he held that philosophers, who may not believe in God, but whose philosophical beliefs lead them to lead moral and just lives, that they would also be considered equal to Jews in the same way as monotheistic gentiles that do profess belief in monotheism.

Remember that the Meiri himself did NOT base his shita on the principal of Ger Toshav (despite the fact that many authorities might have understood the Meiri that way).  The principal of Ger Toshav would require the gentile to accept the idea of One Deity.  However, it is plausible, based on Halbertals extensive research, that the meiri would not have required monotheism for a gentile to get the privileges that he extended to monotheists.  Let me reiterate, that the Meiri did not believe that there could be such a thing as a society of simple masses that could be moral without a fundamental belief in a God that judges our actions and rewards and punishes our behavior accordingly.  He did however allow for the possibility of individual philosophers that may lead moral lives despite a lack of monotheism.  Had the Meiri been aware of modern non-Monotheistic societies that are moral and just, it is entirely plausible that he would have considered them to be worthy of all the privileges that he extended to the Muslims and Christians of his time.

I admit that this may seem at first glance to be a bit of an unjustified stretch of the Meiri's opinion. However, Rabbi Berger brings some strong support for this idea from an essay by HaRav Ahron Soloveitchik ZT'L.

Let me quote from Rabbi Berger's article:

The view that gentile behavior rather than theology determines how Jews should treat them is at least implicit in a relatively recent English essay by R. Ahron Soloveichik. He argues that love of other Jews must be blind, but love of gentiles, which he sees as an obligation expressed in the Rabbinic principle called “love of people” (ahavat ha-beriyyot), is grounded in the intellect and varies with the degree to whichgentiles lead moral lives and treat Jews decently. This position is spelled out more rigorously in his novellae to Sefer ha-Madda. Here he maintains that the discriminatory laws against non-Jews result only from their status as evildoers (their shem rasha). Non-Jews who behave righteously by following the six Noahide laws other than the prohibition against avodah zarah are not considered evil as long as their theological error was inherited, as the Talmud suggests about pagans in the diaspora, from their parents and is thus considered inadvertent or even a result of compulsion. It is worth quoting more fully R. Jacob Emden’s application of this talmudic dictum in a responsum to which R. Soloveichik alludes. “The Sages,” says the responsum, “declared, ‘The gentiles outside the Land of Israel are not worshippers of avodah zarah; rather, they follow the customs of their ancestors.’ Therefore their blood is precious in our eyes and would remain so even if we were ruling over them so that they were conquered under our control in our own land. After all, the Sages said—even with respect to full fledged idolaters--that one does not lower them into a pit. How much more is this so in the diaspora where we take refuge under their protection; we are, then, obligated to protect them with all our ability and save them from death and from any loss or damage to the point where even guarding their money should be a labor of love."(all italics are my own)

I will get back to Rav Y Emden in a minute, but here we have non other than HaRav Ahron Soloveitchik saying exactly what we had just thought might be too much of a stretch to attribute to the Meiri.  He clearly divorces the requirement of the seventh mitzvah (I do not mean to suggest that monotheism is the least important of the seven, just the seventh because according to haRav Soloveitchik's this approach it is not required for the purposes of being considered a moral person) of believing in One God from the equation necessary to be considered a good as opposed to an evil person.  According to HaRav Soloveitchik, any gentile who is not evil, whether or not he is a monotheist.  This makes our approach to the Meiri a little more palatable and real.

A second possible approach would be the approach of HaRav TH Chajes, the "Maharatz Chajes" ZT'L.  In his essay entitled Tiferes L'Yisrael he takes on this problem in a different way.  Let me digress for a second to encourage anyone who believes strongly in the imperative to treat all human beings equally to \please read this essay in its original.  If you ever wanted validation that your beliefs are well founded and well grounded in true Torah ideals - this essay will give you all the satisfaction that you need.

Remember that Rav Chajes held that today's gentiles are considered Gerei toshav, and therefore we are obligated to save their lives, even on shabbos.  But how could someone who worships Avodah Zarah (assuming that the gentile were non Muslim and non Christian - Rav Chajes explicitly does not consider Christianity to be avodah zarah for a gentile) be considered a Ger toshav?  So HaRav Chajes explains (my own translation):

See the Ramban in Parshas Acharei on the pasuk "VeLo Taki HaAretz...." who writes that [worship of other gods]  in conjunction ("beshituf") for non-Jews was only prohibited within the land of Israel ... and see Mor Uketziah by the Gaon R Y' Emden OC 224 the "shituf" is permitted to non-Jews ...and according to my opinion, This is what Chazal meant when they stated in Chulin 13b "The non Jews of outside Israel are worshipping "avodah zarah" in purity, as they are only following the customs of their forefathers (minhag avoseihem b'yedeihem") and see the Rambam in Peirush HaMishnayot first perek of Chulin on the Mishnah regarding ritual slaughter performed by a non-Jew who writes that there are two categories of Idol worshippers - those that are truly serving forms and talismans, and those that are simply following the customs of their forefathers ... and the intent of the Rambam is to say that [the second category of idol worshippers] truly intend to worship the God of Gods (Elokei Ha'elokim) but they simply mix into their worship other concepts...  

So according to HaRav Chajes, most other religious people today would really be considered monotheists for our purposes here, although they themselves may mix other foreign concepts into their worship.  I am not an expert in comparative religion, so i do not know how far it is realistic to extend this concept in contemporary times.  However, this is another way that this halachic authority extended the privileges of gerei toshav to all moral human societies.

If one carefully examines the words of Rav Y Emden that Rabbi Berger and Rav Soloveitchik brought, you will find that he seems to be saying exactly the same thoughts as HaRav Chajes, and he explicitly extends this to "full fledged idolators", and he applied the same principle of "minhag avoseihem b'yedeihem".

Let me add one more point, before I leave this post.  Regardless of which of the above approaches we take, even if it can be argued that there may still be some individuals or societies "out there" in today's world who would not qualify for this protection, we would still be allowed to save their lives on shabbos due to Eyvah.

So we can safely conclude that the Torah teaches us that even on shabbos we are obligated to save the life of any human being that is part of a society that is moral and just. However societies that are evil and corrupt we are only obligated to save their lives due to Eyvah. I think that sounds a lot different than what we thought the Torah taught us before we embarked on this mission.

In my next post, I will handle the following question: How important is this obligation to save non-Jewish lives?  As a physician, I am often told that I really should not be in the hospital on shabbos in the first place. In fact, some argue that it may not even be advisable to become a physician as it may one day require you to be in the hospital on shabbos.  Is this true?  Should I feel guilty about being there in the first place?  Have a great shabbos, and I will IY'H return next week with more.

Is the Meiri a Lone Figure in the Wilderness?

We summarized in our last post the opinion of the Meiri regarding how one is supposed to relate to gentiles in contemporary times.  I will get back to developing the opinion of the Meiri as it would apply to different societies today.  However, I first would like to review some other authorities that have either said similar ideas to the Meiri, or have come out in support of the Meiri's opinion.

Many authorities have used the concept of the ger toshav to describe our dealings with non-Jews in our day.  I must credit R'Gil Student of the Torahmusings blog for bringing to my attention a teshuvah of Rabbi Nachum Rabinovich, of Maaleh Adumim.  In this teshuvah (see Melumdei Milchamah Teshuvah 43) he writes of the obligation to save the life of an injured gentile on Shabbos.  He differentiates between an injured terrorist and an ordinary non-Jew.  According to him, an ordinary non-Jew who is a Christian or Muslim (we will deal with other religions and moral atheists later in the blog, I promise) would be considered a ger toshav.  He establishes in the teshuvah that there is a mitzvah to save the life of a ger Toshav, at the same level as there is a mitzvah to save the life of a Jew.

His sources are Rav TH Chajes (the "Maharatz Chajes"),  who held that modern day Christians and Muslims have the status of Gerei Toshav.  He then brings conclusive proof from the Ramban in his comments on The Rambam Sefer HaMitzvos 16 that saving the life of a ger Toshav would supersede Shabbos.  According to R' Rabinovich, the terrorist would not be considered a ger Toshav, by virtue of the fact that he is not a moral human being, and therefore should only be saved on shabbos due to Eyvah.

So this is a little bit of a different angle then the Meiri.  According to the Meiri, non-Jews who live in a moral and just society are considered "Am she'Itcha be'Torah Uve'Mitzvos" and we are therefore obligated to save their lives on shabbos.  According to R' Rabinovich, once we give contemporary gentiles the status of Gerei Toshav, we are obligated to save their lives on shabbos in accordance with the opinion of the Ramban (and other Rishonim including Rabbeinu Hillel, and the Ralbag as quoted in his teshuvah.)

Several other authorities have also used the Ger Toshav argument. One famous one is HaRav David Tzvi Hoffman, who explicitly writes that contemporary gentiles (he is referring to Christians) should be considered Gerei Toshav.  Rav SR Hirsch (see here for example) writes similar ideas in many places, though I am not quite sure how much of it was apologetics. Rav Hoffman's words though, invoke a clearly defined halachic category of Ger Toshav, and thus do not sound like mere apologetics to me.

Rav Hirsch also brings the commentary of Rav Yaakov Emden on Avot 4:13, which strongly support the argument that Christians and Muslims that are moral and just should be considered Gerei Toshav. However, he does not actually take the plunge and explicitly write that they would have that halachic status.  His words are stirring and offer us some strong backing. However, although it is possible that he would agree, I don't think I have enough evidence to claim that Rav Emden actually held that they would have the halachic status of Gerei Toshav.

Then there are those authorities who understood that the Meiri's position was based on the principle of Ger Toshav.  Although it seems after Halbertal's study that this was probably not the opinion of the Meiri himself (as the Meiri's opinion was even more "liberal" than that), many great authorities believed that this was the basis of the Meiri's opinion.  Chief among these authorities was none other than Harav Kook ZT'L (see Iggrot Reiyah vol. 1 page 99).

HaRav Kook writes a very interesting language, which even if this was all I had, it would have been enough for me. "HaIkkar" is his language (the primary or correct position - in my admittedly poor translation). He writes there that HaIkkar is like the opinion of the Meiri that ALL societies that are just and moral are coinsidered Geirim Toshavim .... see his letter in detail. Rabbi Isaac Herzog ZTL takes this approach as well in several places, equating modern gentiles with Geirei Toshav.

HaRav Ahron Soloveitchik ZT'L, in his book Logic of the Heart, Logic of the Mind  see pages 139, 151 also invokes the Shita of the Meiri when discussing treating gentiles in our time.  He uses the Meiri to develop his approach that differentiates between gentile societies based on their morality and behavior. This is somewhat similar to the approach of R' Rabinovich, and clearly HaRav Soloveitchik was relying on the opinion of the Meiri.

I also cannot leave this post without mentioning the now famous remark of the Seridei Aish, HaRav YY Weinberg ZT'L, who stated in one of his letters to Professor Atlas (see Torah Umaddah Journal 7 - 1997) that the Shita of the meiri should be adopted as normative halacha.

So although we must admit that the Meiri is a minority halachic opinion, we have now reviewed many well respected halachic authorities who either agreed that the Meiri's opinion should be adopted as halacha, or came to similar conclusions as the Meiri with slightly different reasoning (the ger toshav argument).

We are far from finished, in my next post, I will deal with the issue of the opinion of the Meiri and how it may relate to gentiles that are not Muslim or Christian, but may have a moral and just society.

A Different Halachic Approach

Please forgive me if I delay a few days between posts.  Sometimes my work keeps me bogged down and makes it difficult for me to keep up with the blog every day.

The basis and foundation of my approach to treating a goy on shabbos is the famous shita of the Meiri.  Many of you are probably familiar with the Meiri's opinions as they relate to the halachic status of non-Jews. However, you may not be aware of the full extent of his opinions, and the extent to which many later authorities have subscribed to his opinions.  When i learned the Meiri in yeshiva, I was under the impression that his words were just apologetics that were meant to calm relations with the goyim, but that in reality they were not halachically important and that they were not meant to be taken seriously.

However, while I searched for answers to the problems that were bothering me, I not only found out that the Meiri's opinions were not apologetics at all, but I discovered that they are a comprehensive and complete philosophy of how to learn the sugyos relating to the treatment of goyim in halacha.  I also learned that many Acharonim, and even some rishonim also ascribed to his views.  I also learned that many recent halachic authorities actually wrote that the Meiri's derech should be considered Halachah Le'maaseh, even though his opinion may have been a minority opinion at the time that he wrote them.

So I beg you to be patient and let me present my case, which will probably take a few posts.  Especially if you have preconceived ideas about the Meiri, please hold back from comment until you hear everything I have to say. Then all bets are off and say as you wish.

First, let me describe what the Meiri held.  According to the Meiri, the contemporary gentiles of his day (basically Muslims and Christians) are all considered "Baalei haDat" - people of religion.  The Meiri considered these Baalei haDat to be different from the non-Jews referred to in most of Chazal - who were idol worshippers that had no religion (at least not what Chazal would have considered a religion).

The Meiri divides the laws that concern our dealings with gentiles into three basic categories.  The first category regards the laws of business interaction with non-Jews.  This refers mostly to things that are prohibited due to fear that the gentile would use the profits for idol worship.  This category the Meiri held did not apply at all to his contemporary gentiles.  The second category deals with all halachic distinctions between Jews and non-Jews. This includes the obligation to save a non-Jewish life (including on Shabbat), the obligation to return his lost object, the death penalty for killing a human being (which the Meiri held applied to non-Jews as well) to give him charity and many more such laws.  In this category, the Meiri held that his contemporary gentiles were equal to Jews on all levels.  The third category deals with halachot meant to keep Jews from intermingling (and intermarrying) with gentiles.  This includes things like a Gentile's wine, milk, bread and so on.  In these halachot, the Meiri did not distinguish between his contemporary gentiles,and from the time of the gemara.

Lest one believe that the Meiri was simply apologetics, I challenge you to learn through the Meiri and consider that his comments are consistent throughout his commentary on Shas.  Repeatedly his points are emphasized and reiterated, and he clearly developed his shita thoroughly and comprehensively. I will be bringing many sources as we progress through this blog, but let me start with HaRav Eliezer Waldenberg ZT'l (author of the Tzitz Eliezer) who writes in a letter published in "Bein Yisrael le-Ammim" p16-17 that it is implausible to argue that his entire approach to shas was simply constructed out of fear of the censors.  He also states that we should use the Meiri as a "Makor Beit Av" (roughly translated as - "a conceptual building block" - my admittedly poor translation) when considering questions for dealing with gentiles in our times.

To assume that it was simply fear of the censors that drove the Meiri to formulate his extensive theories will become less and less plausible as we continue our discussion.

I owe much of my understanding of the Meiri to a great book called "Bein Torah leChochmah" by Moshe Halbertal.  It is worthwhile reading for anyone interested in learning more about the Meiri.

Probably the most interesting thing I learned from Halbertal's study is how he derives the reasoning behind the Meiri.  It is clear from his study that the Meiri that he felt that anyone who did not have a "Dat" was certainly someone who would not be bound by basic morality and justice. Halbertal proves that according to the Meiri, a society of Ba'alei Dat is a society of morals and justice, whereas a society without "Darchei HaDat" is one that is evil and corrupt.  This is a very important point, and it is one that we will come back to later in this blog discussion. Any society that is moral and just according to the Meiri would have the same status as Jews regarding these types of laws.

For example, the Meiri goes as far as saying that those that are "gedurim beDarchei Hadat would be  considered "Am She'Itcha BeTorah uveMitzvot".  (see Bava Metziah 59a where the gemara learns that one is only obligated to retuirn the lost object of someone included in the pasukl, lo Tonu Ish et Amito - Am  She'Itcha B'Torah UVe'Mitzvot, which the Meiri learns explicitly includes non-Jews, as opposed to learning that it is excluding them!)

There is much to write about the Meiri,and I promise I will write more, but I first want to deal with an important issue.  Is the Meiri simply a lone voice in the wilderness?  Can we rely on a lone opinion in formulating halacha

Comment as you wish, but I beg you to hang in there, because there is a lot more to say.

Does it really matter why you can treat a gentile on shabbos?

In our last post we reviewed the halachos of treating a goy on shabbos.  Now let me change gears a little bit and talk about my experience in the "real world".  If you recall my first post on this topic, I discussed the moral dilemma that I have encountered since I have become a physician.  Let me now describe this dilemma.

I have the very special privilege of spending my entire professional life taking care of people.  I am very fortunate to be able to use my skills healing and helping people every day.  I believe in the depths of my heart that what I do every day is the work of the Ribbono Shel Olam. 

I have always made a special effort to make sure that as much as possible I spend shabbos where I belong, at home with my family, in shul and in my community.  Most of the time, I am able to spend shabbos without having to see patients as a physican. However, the nature of my occupation is such that I am sometimes called upon to treat people on shabbos.  I know the basic parameters of what is muttar and what is assur, although I am sure there is still a lot for me to learn.  I am not at all perfect, but I think I would be telling the truth if I said that I do the best I can.

It really matters to me that not only am I doing what is halachically permissible, but that I am doing the right thing.  It is very challenging and difficult to spend long and stressful hours with complicated issues, especially when I would rather be home enjoying a good cholent.  However, I still do it in the belief that I am needed, that it is important, and if halacha permits it, it must be what the Ribbono Shel Olam wants from me.  More so, when I look my patients in the eye, when I see their appreciation for what I am doing for them, I get validation that this is indeed the right thing.

Many Orthodox Jews might argue that it might not be the right thing to choose a professional situation which  forces one to need to work on shabbos.  This is a legitimate issue, which I will try to deal with at another time.  For now, please allow me to assume that in some circumstances it is inevitable that a God fearing Orthodox Jewish doctor will end up treating patients on Shabbos.

Now let us contrast two hypothetical patients in pain, a Jewish one, and a non-Jew.  It is shabbos afternoon, and i am called to the hospital to take care of both.  I have to drive to the hospital, which is painful to begin with, but i tell myself ... "It is a mitzvah to save a life. You can drive now." 

I see the patients in their beds. At the Jew's bedside, I think to myself ... "It is a mitzvah to take care of this person.  I can transgress the Shabbos because his/her life is more important than Shabbos. After all, doesn't the Torah say ... vechai bahem?" At the non-Jews bedside I think to myself ... "Well if i don't save his life, what would the goyim think!? The nurses will think I am immoral .. you helped the Jew but not him!! Imagine what they would write about me in the newspapers tomorrow!! I guess I have to treat him to!"

The following thoughts, in one version or other then flows through my soul. Dear Ribbono Shel Olam, I cannot act this way to a fellow human being. I cannot watch a person suffering and think that I am only helping him because of some vague sort of fear of reprisal.  This is not the Torah I accepted at Sinai.  I accepted a Torah that was Deracheha Darchei Noam.  I will help this gentile because I am a compassionate human being and because i know that it is the right thing to do.  Please God, show me a better way. Show me the right thing.  Help me learn the halachos once again so that i might learn Your true intent. It cannot possibly be that I am only alowed to do this as some sort of b'dieved.

So to answer my question, does it really matter why you can treat a goy on shabbos? Absolutely! Of course it matters. It certainly matters to me!

If you are thinking something like the following, "who cares why you are allowed, the bottom line is the halacha. The halacha says it is OK, why do you care what the reason is!"  If this is good enough for you, then I am not writing this blog for you.  You do not need what I have to offer, so don't even bother reading it.  But if you understand me and it does bother you as well, then please listen further.

So hang in there dear blog followers, in my next post, I will start to show you another halachic way. One that is founded on great Halachists of previous centuries, one that is firmly grounded in the Torah that we accepted at Sinai, but one that sounds very different from what you may read in most contemporary "halacha guidebooks".  It will be a Torah way that I can live with and live by, and I hope that you will agree.

If I sound tantalizing and the suspense is building, that is my intent. I hope that it entices you to hang in there for the ride to come.

The Halachic Background of Treating a Goy on Shabbos

We need to start with a review of the basic halachos of treating a non-Jew on shabbos.  At this point, our assumption will be that anyone who is not Jewish would be considered a non-Jew for halachic purposes.  While this may sound obvious at this point, you will soon see that it is not obvious at all.  Today we will summarize the sugyah, and delineate the basic halachic opinions regarding the matter of treating a non-Jew on shabbos.

First,  let us begin with the primary sources. The most important is the gemara in Avodah Zara 26a, "Rav Yosef thought to say that for a Jew (midwife) to deliver an idol worshipers baby on shabbos for pay should be permitted due to eyvah (a fear of causing hatred among non Jews towards Jews) Abaye responded, She can say to her, for us that keep shabbos we can desecrate shabbos, but for you who do not keep shabbos we do not desecrate shabbos".

There are several issues which the poskim try to clarify from this gemara, and for the sake of clarity, let me summarize the issues.

1) It seems that the maskanah of the gemara is that one is NOT allowed to treat gentiles on shabbos because of Abaye's statement that there is no Eyvah.  If one were to argue that in modern times this "explanation" of Abaye won't work anymore, does Rav Yosef's heter of Eyvah still apply?


2) If Rav Yosef's heter of Eyvah applies nowadays, on what severity of issur does it apply? There are three possibilities.

a) It could be that Eyvah cannot supersede ANY prohibition, not even a rabbinic decree.  If this is true, then Rav Yosef only meant that Eyvah allows one to treat a gentile at all.  This would be because the gemara elsewhere prohibits a Jew from treating a gentile who worships avodah zarah.  If this is true, rav yosef's heter was only meant to permit transgressing this specific decree.

b) Alternatively, it could be that Eyvah is only meant to permit transgressing Issurei Derabbanan, but not issurim of Torah origin

c) Or maybe Eyvah can even allow transgressing an issur de'oraysah.

As you can imagine, there is a lot of literature on this subject, but allow me to review the basics.

1) The Ritva and the Ran on that gemara take the position that Eyvah cannot even allow an issur derabbanan.  The Bais Yosef brings a famous argument between the Ramban and Rashba vs. Rabbeinu Yonah regarding the permissibility of giving infertility treatments to a gentile.  The Ramban and Rashba allowed it due to Eyvah, whereas the rabbeinu Yonah was famously very critical.  It would seem that the argument revolved around the heter of Eyvah for treating a goy, but none of these authorities approved of using this heter even for issurei derabbanan.

2) Tosfos on that gemara explicitly allows the heter of eyvah for issurei derabbanan but not for issurei de'oraysah.  Many acharonim seem to take up this position including the Tosfos Shabbos, and the Chassam Sofer.

3) No posek seriously entertains the possibility that eyvah would allow transgressing an issur de'Oraysah.  However,  several poskim, including the Maharik, and the Tiferes Yisrael cleverly use the heter of Eyvah to allow transgressing an Issur Deoraysah through an interesting "halachic trick".  They use the following argument.  Since the Jew is only doing the issur de'Oraysah because he is afraid of causing hatred (eyvah)  that makes the melachah that he is doing an melacha she'aynah tz'richa l'gufa (work that is done for a purpose OTHER than accomplishing the work itself) . Therefore it is not really an issur deOraysah, and can be done mishum eyvah.

As we come to more modern times, there are several Poskim that must be mentioned.  The Chassam Sofer (YD Siman 131) has a classic teshuva where he allows transgressing an issur deoraysah to take care of a non-Jew when there is reason to be concerned that the Jew's life would be in danger if he does not treat the Goy.  This is kind of like what I sometimes call "Super-Eyvah".  The Divrei Chaim of Tzanz (OC Chelek 2 Siman 25) writes, "It is the custom of (Jewish) doctors to transgress Isurei De'Oraysah on shabbos..and I heard that it was a decree of the Council of Four Lands that allowed them to do this." The obvious question is, how could the Council decide to allow an issur deroysah by decree? The answers given to this problem include the clever explanation of the Maharik, or the explanation of the Chassam Sofer of "super-eyvah".

We can't leave this part of the discussion without mentioning the Mishna Berura (Siman 120 Seif Katan 8), who sharply criticizes Jewish doctors who transgress Issurim De'oraysah while taking care of non-Jews on Shabbos.  He writes "They are completely intentional transgressors of the sabbath (mechallelei Shabbos gemurim hem b'mazid) May God protect us!"  So many times, a yeshiva bachur who learns the Mishna Berura and thinks he knows everything has come to me with this accusation, "haven't you seen the mishna berura! How could you...." Whatever. Tell them to go back to yeshiva and learn the sugyah properly.

To finalize this post.  Virtually all important modern poskim agree (Rav Moshe Feinstein ZTL, Rav SZ Aurbach ZTL, Rav Waldenberg ZTL, Rav O Yossef Shlita and numerous others) that when push comes to shove, a Jewish physician can violate even an issur de'Oraysah to save a non-Jewish life.  They come to this conclusion using some combination of the Chassam Sofer, Maharik, and Divrei Chaim.  Each posek has his own stipulations etc... but the bottom line is about the same.  Their advice is, try not to be there on shabbos, but if you're the only one available, do what needs to be done.

Now that we've made this clear, we can go on with our discussion in my next post. there I will tackle the following question, "If you can treat a gentile on shabbos anyway, does it really matter why you are allowed?"

Treating a Gentile on Shabbos

I am really sorry that I have not posted in the last few weeks, but I want the readers of the blog to know that I have been working hard on this next topic.  This is a subject that has been bothering me for quite some time.  Let me share with you my personal history of my quest for an understanding of the halachos of treating non-Jews on shabbos.  I am sharing this with you only because I believe that it will help you appreciate the full force of my arguments that I intend to put forth.

As a yeshiva graduate, newly armed with semicha and a few years of kollel behind me, I decided to go to medical school.  I knew that treating patients on shabbos was going to be an important halachic issue so I made it my business to study the topic thoroughly so I would be ready to handle whatever situations I would encounter.

So I started by reading some articles and teshuvos, mostly in the Tzitz Eliezer and Igros Moshe to familiarize myself with some of the basics.  I threw in a little bit of Nishmas Avrohom, Shemiras Shabbos Kehilchasah, and other seforim, and reviewed a few contemporary halacha books that were available then.  This was the beginning.  I also had some long conversations with some contemporary poskim, who shall remain nameless only because I don't want it to sound like I am claiming that any of them would endorse my ideas that I will be expressing in this blog.

In my final year of medical school I had the opportunity to take off a few months to do some "electives", so i chose to learn in kollel (under the guise of studying "Jewish medical ethics") for a few months to study the relevant sugyos in shas, the rishonim, acharonim, and ultimately the shulchan aruch and acharonei haposkim on the topic of treating gentiles on shabbos.  So I thought that I at least had a handle on the relevant issues, i had poskim to call if I needed help, and I was ready to go.

However, I wasn't really prepared at all for what eventually became the real issue for me.  Stepping out into the "real world" forced me to think seriously about what moral and ethical messages the Torah had to teach me, my colleagues, my patients and indeed the entire world about what it means to be responsible to take care of people's lives.

There is SO much in the Torah to draw strength from, and starting with Verapo yerapey, veahavta lereiachah kamocha and on down, there was so much in the Torah for me to draw strength from and teach others. But I kept on hitting a big bump, nay, a big brick wall.  Everywhere I turned, I hit a brick wall.  what I believed in my heart, and what I learned in shulchan aruch kept on crashing into each other like a game of chicken where both contestants "win".

In my heart I knew that treating and saving a human life is the highest calling.  In my heart I knew that Hashem wants me to do everything I can to take care of all human beings with equal compassion, equal concern, and treat everyone appropriately no matter who they may be.  I knew it in my bones, I knew it in my heart.  So why then does halacha distinguish between caring for a Jew and a non-Jew on Shabbos?

The more I spent my life caring for others, doing what i know Hashem wants from me, the less I was able to reconcile these two seemingly contradictory lessons that the Torah was teaching me.

Let me now be really honest.  I have went through many stages before I came to the conclusions that i will be arguing in this series of blog posts.

Stage One) Not willing to God forbid throw out the Torah, I first thought that maybe my priorities were messed up.  If the Torah teaches me something, then my set of values must be wrong!  Maybe I am just absorbing foreign non_Torah values, and I need to learn the Torah-true values and accept them as the word of God.  But I couldn't accept it.  Sure, on many levels I know that we cannot accept every whim of modern society as a proper value system.  Things like premarital sex, abortion on demand, and other issues shouldn't become acceptable to me just because modern society says so!  But  this issue was different.  Something deep down inside of me told me that this value system was right.  God would not want me to treat a goy or jew differently on shabbos.


Stage two) So maybe the Torah is wrong?  Maybe i should get with the program and join the modern world!  As scary as this thought was to me, I would be dishonest if I claimed that such thoughts never entered my mind.  If God were to ask me why I rejected the Torah, my answer would be, because I believed that all of your children were created equal!  If I burn in hell for that conviction, then go ahead and let me burn!  As such thoughts percolated in my head, I was disgusted.  It can't possibly be that the Torah really believes this way! It is too beautiful, too wonderful, too peaceful, too loving, and I just KNOW that what Hashem wants from me is to treat everyone with the same respect.

Stage three)  So I spoke with people to whom I could trust my inner thoughts, and I studied numerous seforim which entertained these types of doubts.  I turned to thinkers that I knew had grappled with these issues honestly, and remained faithful to the Torah.  Thinkers like the Rambam in the sefer Moreh Nevuchim.  Thinkers like Rav Kook and Rav SR Hirsch.   Poskim like the Seridei Aish. I spoke with people who dealt with these issues openly and honestly, and eventually I realized that with study, discussion, honesty, and openness, the true beauty of the Torah will always shine forth.

Armed with this new approach, I learned something both wonderful and scary.  I learned that what shines forth from the Torah may be something new and refreshing to me, but others often seem to find it difficult to accept.  The famous "Slifkin Affair" was a watershed event for me.  That is because R' Slifkin was a person who also was grappling with the same difficulties that I was, and he seemed to find a path that both satisfied his rationalistic personality , and remained faithful to the Torah.  His area may have been  zoology, the age of the universe and so on, while my area was medical halacha, but the issues were the same to me.  When he got "shot down" by the chareidi establishment, I was "shot down" as well.

I have made it clear in this blog that I have set out to revisit the entire field of medical halacha in a rationalist way, and I have determined to do this unapologetically, and rely on the research that I have conducted.  I will do this because I am a frum Jew, and i will always love the Torah.  For the sake of God, for the sake of my children, and for the sake of every Jew and every human being who uses his or her own head when they think about these issues, I will offer a way to deal with these very difficult subjects.  I would love to hear your thoughts in the comments.

In the upcoming posts i will attack the following fundamental question. Despite the fact that all contemporary poskim DO allow chillul shabbos to save ANY life, we know that this is generally considered a heter due to fear of reprisal, mishum ayvah or some other heter. If the halacha is an ethical guide to life in addition to just being a book of rules, how could it be that the fundamental principles that underlie the halacha are so contrary to what most of us would consider to be basic ethics? How could it be that the halacha only allows chillul shabbos to save the life of  a Jew but not a gentile?  Does this not run counter to our basic ethical instincts?


If you are not bothered by this ethical problem, then you probably should not be reading this blog.  If it doesn't bother you, then our perspectives are so different from each other, that further dialogue will probably not be very productive.  However, if this problem bothers you, then please read it, listen, and tell me what you think.

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”

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.

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.

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.

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.

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:

Mishna:

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)

Gemara:

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.