Does Jewish law allow the donation of organs from brain-dead patients in order to save lives? The recent report by the Rabbinical Council of America’s Vaad Halacha, or committee on Jewish law, suggests that new medical information should cause us to answer “no.”
Even though the RCA’s leadership has since clarified that the organization has no official position on this question — given the plurality of opinions within the Orthodox rabbinate on this decades-old debate — the report nevertheless has the potential to discourage organ donation within our community. This would be a great shame, since the report misconstrues the fundamental medical and halachic claims that support organ donation. In truth, the case for organ donation within Jewish law remains as strong as ever.
Before examining the report’s claims, it is important to clarify terminology. The term “brain death” depicts patients who have suffered significant damage to their brain stem — the part of the nervous system that controls respiration — to the point that they will never be able to breathe again without artificial assistance. The term “respiratory death” more accurately describes this stage when the body has irreversible cessation of spontaneous respiration.
Many halachists, including Israel’s Chief Rabbinate, believe respiratory death should be considered the key criterion in determining the moment of death under Jewish law. This definition draws support from the Torah, in which God creates (Genesis 2:7) and destroys (7:22) humans by granting and depriving the power to breathe.
The Halacha committee’s paper, however, advocates “circulatory death” as a standard, insisting that one remains alive as long as one’s heart continues to beat, even when artificially supported. This alternative criterion for determining death — which also has enjoyed the support of many halachists — would preclude most cases of post mortem organ transplantation. The authors of the report do not offer much in the way of new arguments to support their preferred criterion, instead focusing most of their energy on presenting four unconvincing objections to the respiratory account of death.
First, the report notes that when the brain stem has died, the entire brain has not ceased functioning. Yet this in no way disproves the respiratory account of death, which does not require the end of activity in the whole brain, just the irreversible cessation of spontaneous breathing. Many believe, with good reason, that the irreversible loss of this vital system indicates a level of bodily dysfunction that should constitute the central criterion for determining a human is no longer living.
The second objection offered to the respiratory criterion for death is that many patients who cannot breathe without artificial support because their lung muscles no longer work remain alive because they are responsive to their environment. Yet the report’s own suggested criterion, circulatory death, faces the same problem. There are advanced heart-failure patients whose hearts can no longer function at all, and require total artificial heart pumps, yet these patients remain clearly alive because they are responsive to their environment. One of us accompanied such a patient, who lived that way for several months, as he walked 200 steps!
Technological developments mandate that any criterion for death — whether circulatory, respiratory or another — apply only when patients are not responsive to their environment. This stipulation is included in the Israeli Chief Rabbinate’s endorsement of the respiratory criterion. Yet a body with a respiratory system that will never function independently again, and that remains unresponsive to its environment, is no longer a living person — even if the heart continues to pump because of artificial medical support.
The report’s third objection relates to a famous talmudic passage that demands examining the nose of people pinned under rubble for signs of respiration to determine if they have died, since “the essence of life is in the nose.” To many, this is a clear statement that respiratory death is the halachic criterion for death. “The sole criterion of death is the total cessation of spontaneous respiration,” wrote Rabbi Moshe Feinstein in a 1976 letter to a New York State health commission. “In a patient presenting the clinical picture of death, i.e., no signs of life such as movements or response to stimuli, the total cessation of independent respiration is an absolute proof that death has occurred.”
To question the authority of this interpretation, the Halacha committee’s report repeatedly interprets a statement of the 11th-century commentator Rashi as suggesting that one might additionally detect life through the heart. Yet Rabbi Edward Reichman — himself a doctor and a historian of medicine — has shown from Rashi’s other writings that this great commentator was relying on a long-since debunked medical theory that the beating of the heart is a sign of respiration, which remained for Rashi the ultimate sign of life. This critical point is omitted from the Halacha committee’s analysis, even as other elements of Reichman’s article are cited elsewhere. When applying rabbinic literature to contemporary medical ethics, one must be sensitive to the history of medicine.
The report’s final argument is that studies show physicians vary greatly in standards and oversight when declaring the moment of death. This concern, while legitimate, does not integrally challenge the respiratory account. It does suggest that families should insist on arrangements to ensure that adequate testing is done in determining that a patient has died. Basic patient advocacy can make certain that hospitals perform their own legally required protocols for organ procurement. The hundreds of RCA members who recognize respiratory death should establish local committees to help facilitate the important mitzvah of saving lives while adhering to halachic standards.
Houston’s Orthodox community, with which we are affiliated, recently celebrated the first anniversary of a beloved member receiving a heart transplant. Indeed, many of us know someone who has received the gift of life from cadaveric organ transplants. Misinformation may cause others like them to die, and that would be an unnecessary tragedy.
Baruch A. Brody is the Leon Jaworski Professor of Biomedical Ethics and director of the Center for Medical Ethics and Health Policy at Baylor College of Medicine. Rabbi Shlomo M. Brody, a member of the RCA, teaches at Yeshivat Hakotel in Jerusalem and writes the “Ask the Rabbi” column for The Jerusalem Post. They are father and son.