Judaism and organ donation: Is respiratory brain death considered death?

The families of several recent Israeli terror victims bravely chose to donate the organs of their loved ones.

When Lucy Dee was declared brain dead, her family donated her organs and saved five lives. Similarly, Or Eshkar’s family donated his organs and saved five lives.

Their high-profile deaths and the publicity given to these donations have brought renewed attention to posthumous organ donation, which can be done in Israel only following a medical declaration of respiratory brain death.

This involves a series of intensive clinical examinations to determine that the patient is unresponsive to outside stimuli; an apnea exam to determine that the patient has suffered irreversible loss of spontaneous respiration; and a secondary exam (usually a scan) that shows loss of blood flow to the brain. At this stage, almost all Western doctors will declare a person dead.

However, does Judaism recognize respiratory brain death as the legal criterion for death? 

WHILE DEFINING death might seem like a purely scientific issue, it involves a complex set of moral, religious and legal factors. Scientists delineate the process of death by quantifying the increasing dysfunction of an organism. They can describe how the cerebellum, which controls muscle functions, ceases to operate; when a damaged cerebrum causes memory loss; how respiration desists when the nerves in the brain stem cease functioning; or when the heart irreversibly stops beating. Science, however, cannot decide which form of dysfunction defines an organism as “dead.” This is ultimately a cultural decision that demands a legal criterion with an ethical justification.

Historically, how to define death was not a major issue, since the different signs of dysfunction – including cessation of respiratory and cardiac activity – largely coincided. Modern medical advances, however, prevent the domino effect that causes an entire body to shut down. In particular, respirators can provide oxygen to the heart even if the lungs have stopped functioning independently.

In 1968, a Harvard Medical School committee declared a person dead when the lungs no longer function spontaneously because of irreversible neurological damage, even if the heart continues beating through artificial respiration. Physiologically, this “brain stem death” differs greatly from a coma or a persistent vegetative state, and there are no documented cases of a “brain dead” patient recuperating. The Harvard criterion made way for transplants, since doctors could remove body parts from a “brain dead” patient whose organs continued to receive blood from an artificially supported heart. Organ donation is only possible, as such, when a person dies in the hospital and is attached to a ventilator.

While this definition has received almost universal endorsement, Jewish legalists continue to debate whether Halacha recognizes this criterion. The Sages do not provide us a clear criterion for death but do give us a test to help us determine whether a person is living or dead when we find him/her totally unresponsive. They assert that we should examine the nostrils for signs of breathing, otherwise known as the “feather test.” Respiration is a sign of life, since God created Adam by “breathing into his nostrils the breath of life” (Gen. 2:7). Does this Talmudic passage teach us that irreversible cessation of respiration is the criterion for death?

In the late 18th and early 19th centuries, European doctors were concerned that scientists could not accurately determine death. Many governments demanded the delay of burial for two to three days until there were physical signs of decomposition, to ensure that the “corpse” was really deceased. The great decisor Rabbi Moshe Sofer saw no need for such precautions, since cessation of respiration clearly indicates death.

Based on this ruling, Rabbi Moshe Feinstein declared in 1976, in a public statement promulgated by his son-in-law Rabbi Moshe Tendler to a national Orthodox scientist group, that irreversible cessation of the respiratory system fulfills the halachic criterion of death, even if the heart continues beating due to artificial respiration. A heartbeat is not a sign of life when we know it is only occurring because the body is attached to a ventilator. While some have deemed this responsum ambiguous, Rabbi Feinstein’s family, along with several doctors that spoke with him on the topic, have affirmed that such was indeed his opinion (Assia 7).

In 1987, the Chief Rabbinate of Israel endorsed this position and pronounced conventional, nonexperimental organ transplants a great mitzvah. Following increased coordination between the medical and rabbinic communities regarding appropriate testing for brain stem death, organ donation has gained basically universal acceptance in the Israeli religious-Zionist community. Contemporary rabbinic decisors who support organ donation include rabbis Yaakov Ariel, Shlomo Aviner, Yosef Rimon, Aryeh Stern, Shlomo Amar, Shmuel Eliyahu, Dov Lior, Yosef Carmel, Eliezer Melamed and Re’em Hacohen.

However, numerous decisors, including rabbis Shmuel Wosner, Eliezer Waldenburg and Yosef Elyashiv, oppose “brain stem death.” They contend that the Talmud used respiration as a test for death only when there were no other signs of life; however, if the heart continues beating, the person is halachicly alive, and removing his/her organs constitutes nothing less than murder. This position has become the dominant one in the Israeli haredi community. In the Diaspora, different rabbinic groups have become internally divided over the issue.

The approach of the Option 18 initiative run by the Ematai organization follows the lead of mainstream rabbis in each sector. Within the Israeli religious-Zionist community, we strongly encourage organ donation and signing an Israeli organ donation (“Adi”) card; we don’t expect haredi members to donate against their rabbinic position.

In the Diaspora, we follow the lead of the Beit Din of Sydney (led by senior Chabad poskim), the Beit Din of Johannesburg (led by haredi and Mizrachi dayanim), and the Office of the UK Chief Rabbi, to give people the option to donate after discussing the issue with their rabbi and family members. Jews who have lost their loved ones, frequently suddenly and unexpectedly, should be embraced by the community and provided with full emotional and halachic support regarding any decisions made on organ donation. To learn more about halachic organ donation, visit Option18.org ■

The writer is executive director of Ematai and author of A Guide to the Complex: Contemporary Halakhic Debates. www.ematai.org