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.
Monday, October 18, 2010
Sunday, October 17, 2010
Halachic Definition of Death
I chose as my first topic of discussion the Halachic Definition of Death. My reason for choosing this, is because it was while reading an article by Dr. Reichman in the Torah U-Maddah journal that I was inspired to think about medical halacha in a new rationalistic and historically accurate way. I don't claim at all to be the first person to think of this approach, but I hope to try to apply it to many areas where halacha and medicine intersect.
There has been much written about the subject, and I do not want to bore you with a review of the entire subject in detail. However, I must give a basic review of the topic, and explain the various sources and halachic opinions in order to set up how we can apply our Five Principles to see if a Rational Halachist might come up with a unique conclusion that could affect practical halacha.
Defining the time of death is halachically crucial for many reasons. However, one of the most contentious topics that are heavily affected by the timing of death is the issue of organ transplantation. As a general rule, as long as a person is halachically alive, one may not harvest his/her organs even in order to save another life. One can not kill one person to save another. However, once a person is dead, it then would become a mitzvah to harvest his/her organs in order to save someone else's life. The majority of poskim would agree with the above statement.
It is also generally true that in order to harvest a fresh organ, it generally needs to be removed before it begins to degenerate. Since this process begins virtually instantaneously upon the cessation of the flow of fresh oxygenated blood to that organ, doctors will try to harvest the organ while the patient's heart is still pumping oxygenated blood into the circulation.
This leads to the big problem, with which most readers of this blog are probably familiar. If a person is declared dead by modern medicine because his/her brain has ceased functioning, but his/her heart is still beating, is he/she dead or alive according to halacha. If he/she is dead, the organ can be harvested. If he/she is still alive, we cannot remove the organ as this would be tantamount to murder. With this introduction behind us, let's get to work.
All halachic discussions of the time of death start with the following basic sources.
The Mishna in Oholot 1:6 teaches us that physical decapitation is considered death, despite the fact that there may still be some movement of the body. This is the source for the poskim who support brain death as an appropriate criteria for halakhic death. The argument is basically that if physical decapitation is death, than physiologic decapitation must be death as well, and that is indeed what happens when a person is brain dead. This is the conclusion of Rabbi Dr. Moshe Tendler and his interpretation of Rabbi Moshe Feinstein's responsa.
The gemara in Yoma 85a is the primary source for the heart death advocates. This gemara is referring to the determination of death in a person who is stuck under a collapsed building on Shabbat. The conclusion most draw from this gemara is that once we determine that the person is no longer breathing and/or that the heart is no longer beating that he/she is considered dead. The ultimate source of this idea is the pasuk in Bereishit 7:22 "all in whose nostrils was the breath of life..."
I admit that I am oversimplifying, but if you want to learn more about this debate in detail, see this great list of articles on this topic here on the HOD society website.
From these sources, we can trace the issue throughout halachic history. The Rambam codifies the criteria of respiratory death in Hilchot Shabbat 2:19, and the Shulchan Aruch follows his lead in Orach Chaim 329:4. Although there are hundreds of responsa that reference this topic, two key responsa need to be mentioned here. One is the teshuva of the Chacham Tzvi # 77. In this teshuva, the Chacham Tzvi gives a lengthy and erudite explanation of his view on the function of the heart and lungs and what the halachic definition of death is. He says that although the cessation of respiration is the Talmud's criteria for death, this is because the cessation of respiration is an indication that the heart has stopped beating. The beating heart however, according to the Chacham tzvi is the true indicator of life.
The second is the teshuva of the Chatam Sofer Yoreh Deah # 338 where he follows the lead of the Chacham Tzvi and states that since the heart is the source of life, that any indication of a heart beat or pulsation means that the person is still halachically considered to be alive.
Let us conclude this basic review of the sources with the statement that the majority of contemporary Poskim seem to agree that as long as the heart is beating, the person is halachically alive. Some Poskim though still support the concept of brain death based on the decapitation argument. I hope in my next post to subject this topic to our Five principles and see how it stands up to the rationalist approach. I invite any of you to try your hand at applying the principles in the comments section, and we can see if we agree. Take care, and shavua tov!
There has been much written about the subject, and I do not want to bore you with a review of the entire subject in detail. However, I must give a basic review of the topic, and explain the various sources and halachic opinions in order to set up how we can apply our Five Principles to see if a Rational Halachist might come up with a unique conclusion that could affect practical halacha.
Defining the time of death is halachically crucial for many reasons. However, one of the most contentious topics that are heavily affected by the timing of death is the issue of organ transplantation. As a general rule, as long as a person is halachically alive, one may not harvest his/her organs even in order to save another life. One can not kill one person to save another. However, once a person is dead, it then would become a mitzvah to harvest his/her organs in order to save someone else's life. The majority of poskim would agree with the above statement.
It is also generally true that in order to harvest a fresh organ, it generally needs to be removed before it begins to degenerate. Since this process begins virtually instantaneously upon the cessation of the flow of fresh oxygenated blood to that organ, doctors will try to harvest the organ while the patient's heart is still pumping oxygenated blood into the circulation.
This leads to the big problem, with which most readers of this blog are probably familiar. If a person is declared dead by modern medicine because his/her brain has ceased functioning, but his/her heart is still beating, is he/she dead or alive according to halacha. If he/she is dead, the organ can be harvested. If he/she is still alive, we cannot remove the organ as this would be tantamount to murder. With this introduction behind us, let's get to work.
All halachic discussions of the time of death start with the following basic sources.
The Mishna in Oholot 1:6 teaches us that physical decapitation is considered death, despite the fact that there may still be some movement of the body. This is the source for the poskim who support brain death as an appropriate criteria for halakhic death. The argument is basically that if physical decapitation is death, than physiologic decapitation must be death as well, and that is indeed what happens when a person is brain dead. This is the conclusion of Rabbi Dr. Moshe Tendler and his interpretation of Rabbi Moshe Feinstein's responsa.
The gemara in Yoma 85a is the primary source for the heart death advocates. This gemara is referring to the determination of death in a person who is stuck under a collapsed building on Shabbat. The conclusion most draw from this gemara is that once we determine that the person is no longer breathing and/or that the heart is no longer beating that he/she is considered dead. The ultimate source of this idea is the pasuk in Bereishit 7:22 "all in whose nostrils was the breath of life..."
I admit that I am oversimplifying, but if you want to learn more about this debate in detail, see this great list of articles on this topic here on the HOD society website.
From these sources, we can trace the issue throughout halachic history. The Rambam codifies the criteria of respiratory death in Hilchot Shabbat 2:19, and the Shulchan Aruch follows his lead in Orach Chaim 329:4. Although there are hundreds of responsa that reference this topic, two key responsa need to be mentioned here. One is the teshuva of the Chacham Tzvi # 77. In this teshuva, the Chacham Tzvi gives a lengthy and erudite explanation of his view on the function of the heart and lungs and what the halachic definition of death is. He says that although the cessation of respiration is the Talmud's criteria for death, this is because the cessation of respiration is an indication that the heart has stopped beating. The beating heart however, according to the Chacham tzvi is the true indicator of life.
The second is the teshuva of the Chatam Sofer Yoreh Deah # 338 where he follows the lead of the Chacham Tzvi and states that since the heart is the source of life, that any indication of a heart beat or pulsation means that the person is still halachically considered to be alive.
Let us conclude this basic review of the sources with the statement that the majority of contemporary Poskim seem to agree that as long as the heart is beating, the person is halachically alive. Some Poskim though still support the concept of brain death based on the decapitation argument. I hope in my next post to subject this topic to our Five principles and see how it stands up to the rationalist approach. I invite any of you to try your hand at applying the principles in the comments section, and we can see if we agree. Take care, and shavua tov!
Friday, October 15, 2010
My First Post - The Five Principles of Rationalist Medical Halacha
I am so happy to finally introduce my new blog to the world, and i hope to develop this into a major influence on the Orthodox Jewish world in terms of our approach to deciding medical halacha. I am sure you are all wondering what in the world I have in mind, aren't there numerous books, articles, journals etc... that deal with this topic already? What could this blogger possibly think he can do to change the way we think about medical shaalot? What does he mean by Rationalist Medical Halacha?
Indeed, there are many poskim that are genuinely expert in many areas of medical halacha, and faithful Orthodox Jews rely on these fine Rabbanim to guide them through the complicated details of thousands of shaalot that come up in our lives. The shaalot are related to so many areas, such as end of life issues, Shabbat issues, Pregnancy issues, and on and on. However, the purpose of this blog is to present a consistent and rationalist way to analyze ALL of these topics. I am warning you now though, that your local Orthodox rabbi may not endorse some of the conclusions we make here, even though I hope you will be convinced when you read my presentation of each topic. We will be treading on dangerous halachic ground, so if that scares you, read another blog.
As we develop each topic, you will come to understand how these principles are used by the rationalist system, and you will appreciate the value of each one and why they are important. Admittedly, these can be applied to many areas that are not related to medicine, and while you should feel free to apply them wherever you want, this blog will be devoted to medicine.
The basic assumptions and rules of rationalist medical halacha are as follows:
1) The Medical Basis of Halacha Principle - The Halachic decisions made by the rabbis throughout the ages, from the Talmud until this day are ALL based on their understanding of medical reality. As an Orthodox Jew, we do believe that the halachic PRINCIPLES used to make these decisions are of divine origin, as part of Torah Shebaal Peh. However, the medical understanding that led to the halachic decisions in specific cases is not of divine origin, but rather it was based on the medical knowledge of the person/people who are writing the decision.
2) The Historical Corruption Principle - As history took its course, many poskim used the precedents as found in the previous literature when they made their decisions. Sometimes, they took into account the changes in medical understanding when they made this decision, but in other instances the poskim did not understand how the medical understanding of their predecessors affected the decisions that they made. This created a situation where a precedent was set based on erroneous medical understanding, and then it became reinforced by the subsequent halachic literature, although it should have been overturned due to new knowledge.
3) The Mixed Up Medical Principle - Most contemporary poskim consult physicians or other experts when they render halachic decisions today. While this is clearly appropriate, this also creates a confusing mix of ancient and modern scientific knowledge when the halachic decision is rendered. clearly the ancient torah knowledge SHOULD be applied, but ancient medical knowledge is often confused with ancient Torah knowledge, which leads to some very hard to understand conclusions.
4) The Common Sense Principle - Some Halachic decisions seem to go against common sense. In many cases, this is simply a result of not appreciating true Torah values in contrast with the values of the rest of the modern world. In these cases we are clearly obligated to try and understand the Torah values, and implement them into our lives, in contrast with the whims of modern society. However, sometimes simple common sense should lead you to understand that the psak halachah you may have received is wrong. If an analysis of the sources based on our principles leads one to conclude that the Torah and common sense actually do agree, then one should live by common sense, and not according to what is obviously an erroneous psak halacha.
5) The Halacha is Moral Principle - Halacha is more than just a bunch of meaningless legal requirements. it is also a moral code that contains lessons for all of us, even non-Jews. If it seems to you that what the halacha is in conflict with what you understand to be basic morals, then you should seriously consider if your understanding of the halacha is correct.
The first topic we will discuss is the time of death in halacha. I will try to stick to a consistent format with every topic. First I will discuss the basic issue at hand, and will summarize the various contemporary halachic approaches on the issue. I will then give a brief explanation if how these opinions were rendered through the contemporary halachic process. We will then analyze the sources using the five principles of rationalist Medical halacha, and determine if our approach leads to the same conclusions as the mainstream contemporary poskim. As much as possible, i will give sources and references and links for you to do your own research. I love comments, both supportive one's and critical one's, and I will try my best to respond to comments whenever possible.
Indeed, there are many poskim that are genuinely expert in many areas of medical halacha, and faithful Orthodox Jews rely on these fine Rabbanim to guide them through the complicated details of thousands of shaalot that come up in our lives. The shaalot are related to so many areas, such as end of life issues, Shabbat issues, Pregnancy issues, and on and on. However, the purpose of this blog is to present a consistent and rationalist way to analyze ALL of these topics. I am warning you now though, that your local Orthodox rabbi may not endorse some of the conclusions we make here, even though I hope you will be convinced when you read my presentation of each topic. We will be treading on dangerous halachic ground, so if that scares you, read another blog.
As we develop each topic, you will come to understand how these principles are used by the rationalist system, and you will appreciate the value of each one and why they are important. Admittedly, these can be applied to many areas that are not related to medicine, and while you should feel free to apply them wherever you want, this blog will be devoted to medicine.
The basic assumptions and rules of rationalist medical halacha are as follows:
1) The Medical Basis of Halacha Principle - The Halachic decisions made by the rabbis throughout the ages, from the Talmud until this day are ALL based on their understanding of medical reality. As an Orthodox Jew, we do believe that the halachic PRINCIPLES used to make these decisions are of divine origin, as part of Torah Shebaal Peh. However, the medical understanding that led to the halachic decisions in specific cases is not of divine origin, but rather it was based on the medical knowledge of the person/people who are writing the decision.
2) The Historical Corruption Principle - As history took its course, many poskim used the precedents as found in the previous literature when they made their decisions. Sometimes, they took into account the changes in medical understanding when they made this decision, but in other instances the poskim did not understand how the medical understanding of their predecessors affected the decisions that they made. This created a situation where a precedent was set based on erroneous medical understanding, and then it became reinforced by the subsequent halachic literature, although it should have been overturned due to new knowledge.
3) The Mixed Up Medical Principle - Most contemporary poskim consult physicians or other experts when they render halachic decisions today. While this is clearly appropriate, this also creates a confusing mix of ancient and modern scientific knowledge when the halachic decision is rendered. clearly the ancient torah knowledge SHOULD be applied, but ancient medical knowledge is often confused with ancient Torah knowledge, which leads to some very hard to understand conclusions.
4) The Common Sense Principle - Some Halachic decisions seem to go against common sense. In many cases, this is simply a result of not appreciating true Torah values in contrast with the values of the rest of the modern world. In these cases we are clearly obligated to try and understand the Torah values, and implement them into our lives, in contrast with the whims of modern society. However, sometimes simple common sense should lead you to understand that the psak halachah you may have received is wrong. If an analysis of the sources based on our principles leads one to conclude that the Torah and common sense actually do agree, then one should live by common sense, and not according to what is obviously an erroneous psak halacha.
5) The Halacha is Moral Principle - Halacha is more than just a bunch of meaningless legal requirements. it is also a moral code that contains lessons for all of us, even non-Jews. If it seems to you that what the halacha is in conflict with what you understand to be basic morals, then you should seriously consider if your understanding of the halacha is correct.
The first topic we will discuss is the time of death in halacha. I will try to stick to a consistent format with every topic. First I will discuss the basic issue at hand, and will summarize the various contemporary halachic approaches on the issue. I will then give a brief explanation if how these opinions were rendered through the contemporary halachic process. We will then analyze the sources using the five principles of rationalist Medical halacha, and determine if our approach leads to the same conclusions as the mainstream contemporary poskim. As much as possible, i will give sources and references and links for you to do your own research. I love comments, both supportive one's and critical one's, and I will try my best to respond to comments whenever possible.
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