The Brain Death Wars

By Shlomo Zuckier
Thursday, September 13, 2012

When does a human life end?  A 2010 monograph by a rabbinic body, a recent book by an independent scholar, and a forthcoming book by another rabbinic organization are the most recent entries in what is among the most discussed halakhic debates of recent times.  “Brain death” occurs when patients have incurred brain damage that renders them unable to breathe independently.  Increasingly, ventilators can keep their hearts and lungs going.  If an absence of heart and lung function is the standard of death, these patients are still alive; therefore, their organs may not be harvested for donation to others.  Influenced by this new reality, a 1968 congressional report advocated accepting brain death as the standard of death. 

The stakes, on both sides of the issue, could not be higher.  If a brain-dead patient is in fact still living but we harvest his organs, we have killed him.  If the patient in fact dead but we wrongly fail to harvest his organs, a person in need of them may die on our account.  What do Jewish sources have to say about these questions?                                                                            

Perhaps unsurprisingly, the question has no agreed-upon answer.  The Talmud (Yoma 85) teaches that if there is any chance that a person under a collapsed building is alive, one must try to save him, even in violation of Shabbat.  However, as soon as the person’s breathing stops, there is no license to violate Shabbat in order to reach him.  Some say this means that human death occurs when breathing stops.  Others disagree, on the basis of Rashi’s comment that the distinction applies only if the person is not moving; if a person has motor function, he is still alive.

Those who would accept brain death as halakhic death point to the Mishnah (Oholot 1:6) saying, in the context of animal death, that a decapitated animal is considered dead.  If we analogize to humans and consider brain death a functional decapitation, a separation of the brain from the body, it follows that brain death does qualify as death in Jewish law, so that organs can be harvested at this stage.  But, of course, opponents of the brain death standard reject this analogy.  Neither position can consider itself proven on the basis of talmudic sources.

In the absence of clear precedent, how have halakhic decisors proceeded?  The approach taken is shaped by the decisor’s understanding of larger questions of how Jewish law works.  The Israeli Chief Rabbinate, following a Religious Zionist approach that seeks a state based on a halakhah applicable to real life and sees the need for a sufficient supply of organs in Israel, has been fairly accepting of the brain death standard; Religious Zionist Rabbis Avraham Shapira, Mordechai Eliyahu, and Shaul Yisraeli have supported it.  The most vocal opponents of the brain death standard are Haredi, including Rabbis Eliezer Waldenberg and Shmuel Wozner.

The American picture has been more complicated.  The Rabbinical Council of America (RCA), in a controversial 1991 vote, adopted the brain death standard, which America’s ultra-Orthodox Agudath Israel opposed.  But in 2010 the RCA published a 110-page brief effectively reversing its previous position.  Though the document declares that it is “not intended as a formal ruling,” its thrust is that an observant Jew should donate organs only after the cessation of breathing (by which time many organs are medically unusable).  The International Rabbinic Fellowship (IRF), a nascent rabbinic confederation to the left of the RCA, has already released a statement declaring that “brain stem death is a halakhically operational definition of death.”  IRF is preparing a book of its own on the subject; the editors have commissioned rabbis, doctors, and ethicists to provide what is meant to be a counterweight to the RCA position. 

In between the two organizations, Rabbi David Shabtai, a young doctor specializing in Jewish medical ethics, has published Defining the Moment: Understanding Brain Death in Halakhah, the most extensive treatment of the issue to date.  Shabtai examines the relevant classical halakhic texts.  He closely analyzes—and charitably constructs—many contemporary positions.  His skilled summation and analysis of the existing material will probably make this the book of record for some time.  But he does not take an overt position on the great question.

The uncertainty regarding brain death is in part due to the opacity of the great rabbis of the 20th century.  For instance, the position of Rabbi Moshe Feinstein, the 20th century’s pre-eminent decisor among the American Orthodox community, is bitterly debated by his disciples and interpreters.  Rabbi Moshe Tendler, Feinstein’s son-in-law and student, who holds a Ph.D. in microbiology, has strongly advocated the brain death standard and claims that Feinstein did as well.  But the great decisor’s son, Rabbi Dovid Feinstein, does not agree.  Shabtai’s book devotes five chapters to Feinstein’s somewhat obscure responsa on the subject, noting cases in which Tendler’s translations do not necessarily render the plain meaning of the text.

There is similar debate concerning Rabbi Joseph B. Soloveitchik (“the Rav”), the great talmudist and intellectual father of American Modern Orthodoxy in America, with the added complication that he did not write on the subject at all. Shabtai’s book—which, he explains, “omit[s] the opinions of those halakhists who have not left a written record”—does not discuss the Rav, leaving his position to be battled out between the RCA and IRF.  The IRF book will include interviews with RCA executive members of the 1970s and 1980s who claimed that the Rav endorsed the brain death standard; RCA’s publication cites close students of Soloveitchik who say he never took such a position.

There are four major reasons why the brain death issue continues to spur such controversy.  First, the issue has concrete life-and-death repercussions.  Second, it reflects the deeper question of whether halakhah should be understood as a formal set of rules or a more pragmatic system.  More, the positions of the great 20th century authorities of record are at stake, along with the related question of who will be the 21st century’s interpreters and inheritors of their legacies.  Finally, we can anticipate that technological and medical advancements will present more of these questions of medical ethics; the brain death debate will set important precedents for the way they are determined.

Shlomo Zuckier is a rabbinical student and Wexner Fellow at Yeshiva University.  He was a 2011-2012 Tikvah Fellow.

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