Rabbi Moshe Feinstein on Brainstem Death: A Reassessment

Reifman – Rabbi Moshe Feinstein on Brainstem Death

1

Rabbi Moshe Feinstein on Brainstem Death: A Reassessment

From: Halakhic Realities: Collected Essays on Brain Death, ed. Zev Farber. Jerusalem: Koren, 2015.

Introduction

If there is one issue that unites virtually all sides in the fractious halakhic debate over brainstem

death, it is the critical significance of the position of R. Moshe Feinstein. R. Feinstein was one of

the earliest posqim to weigh in on this issue, and one of a very few with sufficient stature to

potentially resolve the debate. That his position has become the subject of intense dispute is

thus particularly unfortunate. Since his death in 1986, a remarkable amount of energy has been

exerted by proponents in both camps toward posthumously ‘recruiting’ R. Feinstein to their

side of the issue.

Despite the fact that R. Feinstein’s responsa have been picked over endlessly in the

course of the debate, there remain not only a number of persistent misconceptions about his

position, but also several passages that scholars on both sides have virtually ignored. In this

article, I will argue that R. Feinstein’s position is fully consistent with the standard of brainstem

death currently accepted by the medical community, and that the passages which scholars have

overlooked provide important conceptual grounding for that position. I will further propose

that the outsized attention accorded to Rabbi Feinstein’s position is justified not only by his

inestimable status as a poseq, but also by his extremely incisive analysis of this issue. Both in his

conceptual analysis and in his use of sources, R. Feinstein challenges the deeply ingrained views

that have that come to dominate the debate over brainstem death and medical halakha in

general.

Part 1 – “Truly the Murder of Two Individuals”

The simplest reason for the controversy over R. Feinstein’s position is that he refused to fully

explain himself. In a June 1968 responsum (Iggrot Moshe, YD 2:174), written just months after

the first successful human heart transplant in Cape Town, South Africa, R. Feinstein denounced

the procedure as “truly the murder of two individuals”— the donor whose heart is excised, and

the recipient whose functioning (if severely diseased) heart is exchanged with another of

dubious value. Clearly R. Feinstein considered the criteria that doctors were using to establish

the donor’s death to be inadequate.

However, rather than present the halakhic reasoning behind his position, R. Feinstein

insisted that the only response that should be published in his name is a brief statement

prohibiting the procedure and excoriating the doctors who were promoting it. He stated that

any attempt to explain his position might lead people to question some of his proofs, thus

opening the door to permitting a procedure that he considered outright murder. The

responsum continues with a lengthy analysis of various issues related to the determination of


2

death and end-of-life treatment, but at no point in that responsum or in any of his other

responsa relating to end-of-life issues does R. Feinstein explicitly relate his halakhic analysis to

his initial assertion prohibiting the removal of the donor’s heart.1

There is, of course, much more to discuss abut R. Feinstein’s position: despite his

stubborn silence on the issue of heart transplants, R. Feinstein subsequently wrote two

responsa, in 1970 and 1976, directly addressing the issue of how halakha determines death.

These texts form the main basis of the dispute over his opinion on brainstem death.

Nonetheless, the effect of R. Feinstein’s uncharacteristically opaque initial response is

considerable, particularly since he reiterated this assertion—again without elucidation—in a

brief 1978 responsum (Iggrot Moshe, ḤM 2:72), which postdates all his other responsa on this

matter. In the decade between 1968 and 1978, the medical community made considerable

advances in defining and standardizing the concept of brainstem death, and, as will be seen, R.

Feinstein’s writings—particularly his 1976 responsum—reflect some of their analysis. However,

opponents of brainstem death reason that had R. Feinstein accepted the brainstem death

standard, he would not have repeated in 1978 his initial assertion that heart transplants are

considered “double murder”.

This interpretation strikes me as an example of hindsight bias, the way our historically

conditioned expectations color our understanding of the text. Knowing as we do that the use of

new immunosuppressants would revolutionize organ transplantation in the early 1980s, we

read R. Feinstein’s 1978 responsum as though it related to that incipient phenomenon. Yet at

the time this responsum was penned, all but a handful of medical centers had issued a

moratorium on heart transplants due to the abysmal survival rate of the recipients, and few in

the medical community predicted that the procedure would be viable in the short term.

Indeed, the main thrust of the 1978 responsum—and the reason for its brevity—is that R.

Feinstein simply concurred with doctors’ concern for the welfare of the heart recipient, and for

that reason agreed that the procedure should still be off-limits.2

Hence, even as doctors continued to study the ramifications of brainstem death for

other purposes (such as removing the patient from life support), almost no one had reassessed

its implications for cadaveric organ transplantation. Whatever R. Feinstein meant in referring

to heart transplants as “double murder” in 1968, an issue we will consider presently, it is likely

that when he repeated this statement in 1978, he was merely expressing his continued

1 It is widely acknowledged that in later years, R. Feinstein gave oral approval to individuals seeking various

cadaveric organ transplants (R. Moshe Dovid Tendler, “Rabbi Moshe Feinstein and Brain Stem Death,” Le’ela [March, 1996], 31). However, these reports do not relay a clear explanation of what changed in R. Feinstein’s thinking and thus don’t help us understand precisely what he was objecting to in his initial rejection of the procedure. 2 On this point, see the interview with R. Binyamin Walfish in this volume. R. Walfish offers a very similar analysis

of the position of R. Joseph Soloveitchik, who initially opposed heart transplants as “double murder” but changed his position after the introduction of immunosuppressants.


3

opposition to the procedure without considering its precise implications for the status of a

brainstem-dead heart donor.3

In this article, I will not be discussing the “double-murder” responsa, but will focus

exclusively on the two responsa (1970 and 1976) in which R. Feinstein explains the reasoning

behind his position regarding the determination of death.

Part 2 – Rejection of the “Brain Death” Standard

If there is any passage in R. Feinstein’s subsequent responsa that could be understood as

clarifying his forceful 1968 statement, it is the opening paragraph of his 1970 responsum (YD

2:146), addressed to R. Chaim Dov Ber Gulevsky, where he refers to “what the doctors say—

that indications of life and death are found in the brain”. As in his initial statement, R. Feinstein

immediately rejects the doctors’ position:

חיות שסימני הרופאים שאומרים מה

לפי שאם בהמוח הוא ומיתה פעולתו פועל המוח אין השערותיהם

הוא שעדיין אף למת נחשב כבר הוא נושם...

Regarding what the doctors say that indications of life and death are found in the brain, that if according to their assessment the brain isn’t functioning [the patient] is considered dead even if he’s still breathing…

המוח שפסק זה שלא ודאי האמת שהוא זמן דכל מיתה הוא לפעול המוח שפסק זה רק, חי הוא נושם

שיביא דבר הוא פעולתו לפעול כיון ואפשר, לנשום שיפסוק למיתה סמים מיני שאיכא חי הוא שעדיין שעדיין או לאינשי מהידועים בעולם

יחזור שהמוח שיעשו ידועים אינם ...פעולתו לפעול

The truth is that cessation of brain function isn’t death, since as long as one is breathing he’s considered alive; rather the cessation of brain function is what causes death since [the patient] will stop breathing, and it is possible that since he’s still alive that there are types of drugs—either of those that are known to man or that are as-of-yet unknown—that would cause the brain to function again…

וחייב רוצח הוא שההורגו פשוט לכן' בגמ הוזכר לא מיתה... דהא

, במוח חיות סימן שיהיה ובפוסקים, בזה הטבעים נשתנו לומר שייך ולא פועל המוח היה ל"חז בימי דגם

האדם חיות וכל בזמננו כמו הפעולות

Therefore it is clear that one who kills such an individual is a murderer and liable for capital punishment… for neither the Talmud nor the posqim mention that indications of life are found in the brain, and it is not possible to say that nature has changed, for even in the time of the Sages the brain

3 Some opponents of brainstem death have also noted that the volume of Iggrot Moshe in which the 1978

responsum appears was published in 1985, when heart transplantation was quickly becoming an accepted procedure. Again, they suggest that had R. Feinstein endorsed removing organs from brainstem-dead patients, he would not have approved this responsum for publication (Rabbi J. David Bleich, “Of Cerebral, Respiratory and Cardiac Death,” Tradition 24:3 (1989), 59-60; Rabbinical Council of America [RCA], “Halachic Issues in the Determination of Death and in Organ Transplantation” [June 2010], 54; David Shabtai, Defining the Moment: Understanding Brain Death in Halakha [New York: Shoresh Press, 2012], 251).

This objection ignores the fact that by 1985, R. Feinstein’s responsum was out of date in a much more important way: the medical consensus against the procedure that the responsum prominently cites had evaporated. Moreover, most scholars acknowledge that by 1985, R. Feinstein himself had given oral approval to potential heart recipients, indicating at the very least that his stated opposition to receiving heart transplants was no longer valid (see n. 1). One can only conclude that R. Feinstein did not revise his responsa for publication, so that the publication date offers no evidence as to his intention.


4

מת נחשב היה לא מ"ומ ממנו בא היה הוא כן וכמו, המוח פעולת בפסיקת

.כן הוא בזמננו שגם ברור

worked as it does now and all human life depended on it and even so one wasn’t considered dead upon cessation of brain function, and so it is clear that the same is true in our time.

The central point that emerges from this passage is that R. Feinstein’s objection to the

doctors’ use of loss of brain function to determine death is that the patient is still breathing. On

a purely technical level, then, if the doctors’ position that R. Feinstein presents here is the same

one he was referring to in his 1968 statement, it is clear that he was objecting to the diagnosis

of death based on partial loss of brain function (e.g., cerebral function), since complete loss of

brain function—specifically the loss of brainstem function—is inconsistent with continued

autonomous respiration.4 The notion of “brain death” that he rejects here is thus distinct from

the standard of brainstem death that has become widely accepted in the medical community.

On a more conceptual level, R. Feinstein rejects the notion of “brain death” in the sense

that he does not regard brain function as the definitive indicator of life and death; that is to say,

he rejects the notion espoused by the secular medical community that death is defined as the

cessation of neurological functions. Rather, he asserts that halakha regards autonomous

respiration—over and above all other physiological functions—as the definitive indicator of life

and death, a tenet that he reiterates repeatedly in both of his responsa on this topic. His

rationale is purely textual. The Talmud in b. Yoma (85a) (a source he analyzes at length later in

the responsum) establishes that regardless of how a victim located in the rubble of a fallen

building is uncovered, it is both necessary and sufficient to examine his nose for signs of

breathing. Neurological function, on the other hand, does not feature in halakhic literature as

an indicator of death.

4 This point has been made repeatedly by R. Feinstein’s son-in-law, R. Moshe Dovid Tendler. See “Kevi’at Rega ha-

Mavet ve-Hashtalat Eivarim: ‘Hatazat Rosh’ Phisiologit,” Emek Halakha (Jerusalem: Dr. Falk Schlesinger Institute of Medical-Halachic Research, 1989), 215; “Halakhic Death Means Brain Death,” Jewish Review (Jan.-Feb. 1990), 20.

There is no reason to assume that R. Feinstein’s statement here— חי הוא נושם שהוא זמן דכל (“for as long as he is breathing he is alive”)—is referring to anything other than autonomous respiration. Nowhere in this responsum does he mention mechanical ventilation, and when he does address it in his 1976 responsum, he explicitly states that it does not render the patient alive:

לנשום יכלו שלא גדולים חולים איכא אבל

י"ע שנושם מכונה בפיהם הרופאים והניחו שהוא אף שינשום שייך הא המכונה י"שע, זה

כחי. מחשיבו לא הא כזו דנשימה מת כבר

However, there are critically ill individuals who cannot breathe and the doctors place in their mouths a machine that allows them to breathe, such that by use of this machine it is possible for [an individual] to breathe even if he is dead, since this sort of breathing doesn’t render him alive.

Contrast with Bleich, bi-Netivot ha-Halakhah, vol. 3 (New York: Ktav Publishing, 2000), 108; and Shabtai, 367-9, who suggest that even if a patient is incapable of autonomous ventilation (i.e., actively drawing air into the body), the passive process of gas exchange in his lungs should qualify as “breathing”.


5

Needless to say, many scholars interpret this passage to mean that R. Feinstein

considered neurological criteria irrelevant to the determination of death.5 They then

acknowledge that this seems to conflict with R. Feinstein’s 1976 responsum (Iggrot Moshe, YD

3:132), where he explicitly endorses the use of a cerebral blood flow scan to allow removing a

patient from a ventilator. We will address this responsum—and these scholars’ interpretations

of it—below. But a more serious problem with this understanding of R. Feinstein’s position is

that it ignores the continuation of his 1970 responsum.

Just a few paragraphs after the above passage, R. Feinstein writes:

האבר החוטם שאין ופשוט ברור אבל

אינו וגם, בהאדם החיות נותן שהוא, כלל בו תלויה שהנשמה מאברים

הנותנים אלו הם והלב דהמוח אלא שייך לו שיהיה וגם להאדם חיות

האבר הוא ורק, ]ח[וטמו6 י"ע לנשום הנשימה מעשה נעשה שם שדרך

לנו ואית, והלב המוח י"ע שבאין שלא אף החוטם י"ע רק חיות הסימן

שאין משום, הנשימה ענין הנותן הוא ש"וכ ובטבור בלב היטב מכירים אנו

הקרא וכוונת, במוח מכירין שאין עצם על לא באפיו חיים רוח דנשמת

, בחוטם ליכא ודאי שזה החיים רוח איכא רואין שאנו חיים הרוח אלא

באברים נראה שלא אף באפיו אחר וגם, התנועה אברי הגדולים

ניכר ולא הלב בדפיקת גם ניכר שלא הגל פקוח שלענין נמצא שלכן, בטבור .בחוטם רק תלוי בשבת

However, it is abundantly clear that the nose is not the organ that gives life to a person, nor is it the organ on which life depends. Rather the brain and the heart are the organs that give life to a person and enable him to breathe via the nose, and the nose is only the organ through which occurs the respiration that comes from the brain and the heart, and we have no indication of life other than nasal [activity]—even though the nose isn’t what generates respiration—since we cannot easily detect activity in the heart or abdomen and all the more so in the brain. And the verse (Gen. 7:22), “All that has the breath of life in its nostrils,” isn’t referring to the [source] of the breath of life—for that’s definitely not in the nose, but rather [it is saying that] the breath of life that’s visible to us is located in the nostrils, even if it is not visible in the larger, moving organs or in the heartbeat or abdomen; and therefore the matter of clearing the heap on Shabbat depends only on nasal [activity].

The same idea is restated twice later in the responsum:

חיותא עיקר הרי ע"לכו ודאי ...דהא ועיקר, בחוטמו הוא רואין שאנו

בהאברים והכח החיות ליתן חיותא והמוח... הלב הוא

…for surely everyone agrees that the primary manifestation of life that we see is nasal [activity], and the primary manifestation of life that gives life and strength to all the limbs is the heart and the brain…

, החיות נותן עיקר הוא הלב ...שודאי נותן עיקר הוא נמי המוח ודאי וכן

הנשימה גם הוא זה שבכלל החיות .החוטם.. דרך

…for it is certain that the heart is the main provider of life, and so, too, it is certain that the brain is also the main provider of life—which includes breathing via the nose.

5 For example, see Steinberg, “Kevi’at Rega ha-Mavet ve-Hashtalat ha-Lev,” Or ha-Mizrah 36 (1987), 61; Bleich,

“Cerebral,” 59; and RCA, 49. 6 The text has פוטמו but this is clearly a typo.


6

These passages, typically given short shrift by expositors of R. Feinstein’s position,

clearly establish that he regards all three factors—heart function, brain function, and

respiration—germane to halakha’s understanding of life and death. Obviously when R.

Feinstein rejects the secular medical notion of “brain death”, he does not mean that

neurological criteria are irrelevant to the determination of death.

Part 3 – The Relationship between Breathing and Brain/Heart Function

This is not to say that R. Feinstein’s manner of integrating these three factors is clear. First, he

systematically refuses to single out either the heart or the brain as the primary source of life,7

undermining the simple dichotomy that has framed the contemporary debate. More

problematic, however, is the way his description of the relationship between breathing and

heart/brain function seems deeply counterintuitive: if the brain and heart are the sources of

life, why is breathing the definitive indicator of life?

One possible explanation is that respiration is not inherently significant, but merely

serves as a reliable external indicator: because we lack the necessary tools to detect heart and

brain activity, we use respiration as a litmus test. This interpretation is suggested not only by R.

Feinstein’s language in the above passage (“…we have no indication of life other than nasal

[activity]… since we cannot easily detect activity in the heart or abdomen and all the more so in

the brain”), but also by the well-known responsum of R. Tzvi Ashkenazi (Ḥakham Tzvi, 77)

regarding a case in which the heart of a slaughtered chicken could not be located.8

R. Ashkenazi argues that the chicken should not be considered a ṭreifah, since the heart

must have gone missing after it was killed. His reasoning is simply that the heart is essential for

life, so that had the heart gone missing beforehand, the chicken could not have been alive at

the time of slaughter. In explaining why the Talmud in Yoma rules that death is determined by

the absence of breathing rather than heartbeat, R. Ashkenazi explains that breathing is always

perceptible, whereas a weak heartbeat may not be. Based on this approach, would we possess

more advanced means of detecting brain and heart activity, respiratory activity would be

irrelevant.

However, in another oft-overlooked section of this responsum, R. Feinstein himself

dismisses this understanding of the relationship between heart activity and respiration:

שפעמים צ"החכ להסבר צורך ואין

שהלב מפני הלב דפיקת לשמוע א"א להכיר א"א חולשה ובומר החזה תחת

מפני וכוונתו, בחיים עודנו אם

And there’s no need to invoke the Ḥakham Tzvi’s explanation that sometimes it is not possible to hear the heartbeat since the heart is beneath the chest and due to its

7 Contrast with Bleich (“Cerebral,” 60), who cites the first passage in which R. Feinstein identifies both the heart

and the brain as life-giving organs and then incongruously concludes that “[t]hose comments certainly reflect a clear recognition that the primary vital force in the human organism is the beating of the heart.” 8 See Appendix 3 of this book for the text of the responsum.


7

אם דאף, ביותר נמוכה היא שהדפיקה הוא עדיין ממש הדפיקה שנפסק נימא הוא דלכן להגוף מעט חיות כח נותן

ם"הרמב כ"ומש. עדיין בחוטמו נושם ויבטלו ימות עין כהרף הלב ינוח דאם

על ם"הרמב כוונת אין, תנועותיו כל עבודתו הפסק על אלא דפיקה הפסק הוא שהדפיקה, להאברים חיות ליתן

שעובד ואירע הלב לעבודת סימן רק זה סימן ניכר ולא עבודתו הלב

והפסק, בחולשה הוא כשהלב דדפיקה הנשימה בפסיקת ניכר לגמרי עבודתו

.מהחוטם

weakness it is not possible to tell if it is still alive—meaning that the heartbeat is very faint; for even if we assume that the heart had actually stopped beating, it would still be providing minimal life force to the body which is why the individual is still breathing. And regarding that which Rambam wrote, that if the heart stops the individual will die instantly and all his movements will cease, he is not referring to the cessation of the heartbeat but rather to the cessation of [the heart’s] function in providing life to the limbs, for the heartbeat is only an indication of the heart’s functioning, and when the heart is weak it may happen that it is performing its function without this indication being discernible, but the complete cessation of heart function is discernible in the cessation of breathing through the nose.

לסברתו צ"החכ שהוצרך מה ואולי לא הלב אך דאם שסובר מחמת הוא נשמע ודאי היה עבודתו יקהפס

שנושם זמן שכל כתב לכן, הדפיקה אבל בלב דפיקה ודאי איכא בחוטמו

קול הוי בחולשה שעובד מאחר נשמע שלא עד מאד נמוך הדפיקה

ואף, החזה תחת שהוא מאחר כלל וזהו. כן שהוא אפשר לזה הכרח שאין צ..."החכ כוונת

And perhaps what drove the Ḥakham Tzvi to his explanation is his assumption that unless the heart stopped functioning, the heartbeat would still be audible; therefore he wrote that as long as the individual breathes through his nose the heart is certainly still beating, but since the heart is weak, the sound of the heartbeat would be very faint to the point where it is imperceptible since it is beneath the chest; and even if this isn’t necessarily the case [that the heart would still be beating imperceptibly], it is possible that it is so. That’s what the Ḥakham Tzvi meant…

There’s no question that R. Feinstein’s assumptions in this passage are a bit unsettling.

He seems to say that the heart’s physiological function—providing life force to the body—is not

dependent on its beating, an idea that modern medicine utterly rejects. That having been said,

we should note that this assumption is not integral to R. Feinstein’s approach; he freely

concedes (in the second paragraph of this passage) that the Ḥakham Tzvi may be correct in

assuming that the heart continues to beat as long as it functions. Whether or not there is ever

an actual (i.e., biological) divergence between heartbeat and heart function, R. Feinstein insists

on making a conceptual distinction between the two when it comes to determining death. The

aspect of cardiac function that is relevant to the determination of death is not the heartbeat

per se but rather the heart’s ability to provide life force to the rest of the body; respiration is

the final manifestation of that life force.9 Thus when we conclude from the Talmud that

absence of breathing is the definitive indicator of death, what we mean is that the heart’s

9 R. Shlomo Goren makes the same distinction (Hafsakat Mikhshorei Haḥaya’ah le-ḥoleh Enosh, in Torat ha-Refu’ah

[Jersualem: ha-Idra Rabbah, 2001], 63).


8

inability to provide life force to the body is determined—not merely indicated—by its failure to

support autonomous respiration.

R. Feinstein’s understanding of R. Ashkenazi’s responsum stands in stark contrast with

the approach taken by numerous opponents of brainstem death, who equate R. Ashkenazi’s

insistence that life depends on the heart with the notion that the heartbeat is a dispositive sign

of life, even in the absence of autonomous respiration.10 Some have gone so far as to impart

such an understanding to R. Feinstein himself,11 ignoring that the fact that he explicitly rejects

just such an interpretation, which R. Gulevsky had proposed in his question:

מה ה"כתר ראה היכן לי מובן ולא

סימן ישנו צ"שלהחכ נמצא, שמסיק אדם ז"ולפ הלב וזה חיות של אחד

שהלב ואדם כחי דינו פועם שהלב הלב נשימה בלי אולם כמת דינו נפסק זה דאין, תיכף מת והוא פועל אינו

שהחיות כדכתבתי אלא צ"החכ כוונת מזוהר כדהביא הלב נותן האברים לכל

ענין שאיכא זה וגם, נ"במו ם"ומרמב, מהלב הוא החוטם י"ע הנשימה

נפסק לגמרי מלעבוד הלב וכשפוסק הנשימה וגם האברים כל תנועת

שעובד זמן כל אבל, נפסק מהחוטם ששאר באופן גדולה בחולשה אף הלב

עדיין איכא מתנוענעים לא אברים אבר שהוא דהחוטם בנשימה חיות

מלהפסיק... האחרון

And I don’t understand on what basis you [i.e., R. Gulevsky] concluded: “It emerges that for Ḥakham Tzvi there is but one indication of life and that is the heart, so according to this an individual whose heart is beating is considered alive and an individual whose heart has stopped is considered dead, though without respiration the heart cannot function causing [the individual] to die immanently.” For this isn’t the intention of the Ḥakham Tzvi, but rather as I wrote above that the heart provides life force to all the organs, as he cited from the Zohar and Rambam in the Guide to the Perplexed. And even nasal respiration is [enabled by] the heart, and when the heart stops functioning completely all limbs stop moving, and breathing through the nose stops as well. But as long as the heart is functioning—even with great weakness such that the rest of the limbs aren’t moving—life is still present in respiration, since the nose is the last organ to cease…

Based on R. Gulevsky’s understanding of the Ḥakham Tzvi, absence of respiration

functions as an indicator of death only because heart function will quickly cease without it. R.

Feinstein counters by reversing the direction of causation: what’s important is not that absence

of breathing causes the heart to stop beating, but rather that the absence of heart function

10

For instance, see R. Eliezer Waldenberg, Tzitz Eliezer, 9:46; and R. Shmuel Wozner, “Al Hashtalat Lev”, Assia 42-43 (1997), 92-94. See also Bleich, “Establishing Criteria of Death,” Tradition 13:3 (1973), 96; “Survey of Recent Halakhic Periodical Literature,” Tradition 16:4 (1977), 133, 137; “Simanei Mitah,” ha-Pardes 51:4 [1977], 16; and “Cerebral,” 57. 11

Abraham Sofer Abraham, “Kevi’at Zeman ha-Mavet,” 82-83; Bleich, “Cerebral,” 60; Joshua Kunin, “Brain Death: Revisiting the Rabbinic Opinions in Light of Current Medical Knowledge,” Tradition 38:4 (2004), 49; RCA, 27, 29; Shabtai, 226. Elsewhere (p. 259), R. Shabtai asserts that, “R. Feinstein does not, however, explain how he understood [the Ḥakham Tzvi’s] ruling,” even though R. Feinstein clearly does just that in offering an alternative to R. Gulevsky’s interpretation. Among these scholars, only Abraham takes note of R. Feinstein’s explanation of the R. Ashkenazi’s position, but concedes that he doesn’t understand his point.


9

invariably causes cessation of autonomous respiration (along with all external bodily

movement).

The difference between these two formulations is crucial. If autonomous respiration is

significant only in as far as it sustains the heartbeat, then any alternate means of sustaining

heart function—such as providing mechanical ventilation and parenteral nutrition (the heart

will continue beating autonomously when supplied with oxygen and nutrients)—would be just

as effective at keeping the patient “alive”. But according to R. Feinstein’s explanation,

autonomous respiration is that which defines heart function: because respiration is necessarily

the last physiological function to cease, it determines what it means for the heart to provide life

force to the rest of the body.

This explanation of the relationship between breathing and heart function suggests that

the absence of observable autonomous respiration is an indication that meaningful—i.e., life-

giving—heart function has ceased, and that any heart activity observed henceforth would not

be an indication of life.

Part 4 – Heart Activity in the Absence of Autonomous Respiration

Before reaching any firm conclusion, however, we need to consider an earlier passage in this

responsum, in which R. Feinstein directly addresses a case in which residual heart activity is

detected in the absence of respiration:

לומר מיתה חשיבות לזה לדמות אבל

הרופאים שרואים שאף לומר דהאדם שאיכא ראדיאגראם עלעקטריק י"ע

ד"לע נראה, מת נחשב לב תגובות הובא בתשובה ס"דהחת. כן שאינו

דהא כתב א"סק ז"שנ סימן ד"יו ת"בפ א"ה ח"פ שמחות במסכת דאיתא ומעשה ימים' ג עד המתים על פוקדין הוא, שנים ה"כ וחי אחד שפקדו אין דלכן מאד רחוק מציאות שאיכא

הוא אבל, האמורי דרכי משום בזה דלכן דמיעוטא ממיעוטא אפילו רחוק

תיכף לקוברו ומותר לזה לחוש אין ענין שהוא דאף נשימתו כשפסקה

. כזה רחוק לדבר לחוש לנו אין נ"פק

But to compare this to the determination of death to say that an individual is considered dead even if the doctors see cardiac activity on an electrocardiogram [ECG], in my humble opinion it seems that this is incorrect. For the Ḥatam Sofer—in a responsum cited in Pitḥei Teshuvah, YD 357:1—interpreted that which it says in Semaḥot 8:1—”One should examine the dead for three days, and there was a case where they examined [one individual who was thought to be dead and found that he was alive] and he survived for another twenty-five years”—to mean that there’s a very remote possibility that [a person could survive without breathing for up to three days]… but it is so remote that we need not be concerned for it and one may bury a person as soon as he stops breathing, for even though there’s a concern for saving a life we need not worry about such a distant possibility.

העלעקטריק שרואין במי כ"וא הרי חיות איזה לו שיש ראדיאגראם

רוב אפילו שוב ליכא זה אופן על מיעוט גם ואולי, מת שהוא לומר, נושם שאינו אף ממש החי והוא ליכא

If so, in the case of one who shows signs of life on an electrocardiogram, there’s no majority—or even significant minority—of such people who are considered dead, and therefore he’s considered to be alive even though he’s not


10

מחמת בהכוך שנקבר ההוא כאיש, שנה ה"כ כ"אח וחי נשימתו שפסקה

, מציאות איזה פ"עכ דאיכא מאחר. זה במציאות דאיכא היחידי כ"ג וזהו כזה לאיש לקבוע אסור יהיה ולכן

להשתדל מחוייבים יהיו ואדרבה שגם ומסתבר אפשר אם ברפואות

.בשבת

breathing—like the individual who was buried in the crypt because he had stopped breathing and went on to live for another twenty-five years—since there was such a case, even if this is the only such case that ever occurred. Therefore it is forbidden to determine [death] for such a person; on the contrary: they must try to treat him medically, if possible, even [if it involves violating] Shabbat.

In this passage, R. Feinstein grapples with a problem addressed by earlier authorities,

including R. Moshe Sofer (Ḥatam Sofer, YD 338): despite the conclusion of the pericope in b.

Yoma (85a) that the absence of breathing is a necessary and sufficient condition to establish

death, a few halakhic sources—most prominently Semaḥot 8:1—suggest that individuals can

survive for extended periods of time without breathing.12 Like R. Sofer, R. Feinstein dismisses

these instances as so rare that in routine cases, they need not be taken into account. However,

he insists that if there are other signs of continued vitality, such as heart activity detected on an

electrocardiogram, the possibility that the individual might survive becomes far more plausible,

and hence he must be treated as living.

At a minimum, this passage establishes that the tentative conclusion we drew above is

not completely correct: even though R. Feinstein considers cessation of breathing to be the

decisive indicator of death, we cannot categorically dismiss all subsequent heart activity as

inconsequential. However, the question remains: what is the significance of such residual heart

activity? This issue is of paramount significance within the debate over brainstem death, since,

as we mentioned, artificial ventilation of a brainstem-dead patient (along with parenteral

nutrition) allows the heart to continue beating independently. Would R. Feinstein consider this

continued heartbeat sufficient reason not to declare death? Several scholars have inferred as

much, reasoning that if R. Feinstein hesitates to declare death due to heart activity so minimal

that it is detectable only on an ECG, all the more so that the regular heartbeat of a brainstem-

dead individual would be cause for concern.13 A few scholars have even presented this not as

an inference, but as the explicit meaning of R. Feinstein’s words.14

Regarding this latter interpretation, there is little to say. This passage is clearly not

addressing the case of a patient on a ventilator: not only would this make an ECG utterly

extraneous (since artificial ventilation allows the patient to maintain a regular heartbeat and 12

Likewise, R. Meir (m Yebamot 16:3) cites a case in which “a man fell into a large cistern and emerged after three days”; Rashi (b Yebamot 121a, s.v. Ishto asurah) explains that R. Meir considers the possibility that an individual might be able to survive in water for a day or two. These sources are obviously inconsistent with the findings of modern medicine, which asserts that depriving the brain of oxygen almost invariably results in death within a matter of minutes. 13

Bleich, “Survey,” 132-3; Shabtai, 226, 241; and Naftali Moses, Really Dead?: The Israeli Brain-Death Controversy (2011), 164-5. 14

Abraham, “Kevi’at Rega ha-Mavet,” 83; and RCA, 49.


11

pulse), but nowhere in this responsum does R. Feinstein address the issue of mechanical

ventilation, a topic he takes up with regard to the determination of death only in his 1976

responsum.15 However, the suggestion that we should infer from R. Feinstein’s case of minimal

heart activity to all other instances of continued heart function also presents difficulties. First,

it puts this passage at odds with the passage we cited above, where R. Feinstein rejects R.

Gulevsky’s suggestion that heart activity is a definitive indicator of life. More importantly, in the

very same paragraph, R. Feinstein explains that halakha does not impart significance to

phenomena below the level of unaided human perception. (Thus, for example, the presence of

microscopic nicks in the blade of a knife does not render it unfit to use for ritual slaughter, and

there is no problem with the fact that we constantly ingest microorganisms which lack the

criteria of kosher animals.) Based on this logic, heart activity that is detectable only by an ECG is

not halakhically comparable to a full-fledged heartbeat or pulse; even if R. Feinstein considered

heart function an independently sufficient sign of life, such faint heart activity would not

qualify.

If so, what is the rationale behind R. Feinstein’s ruling? The simplest explanation is

suggested by the very source R. Feinstein cites: we are concerned that this patient could, like

the individual referred to in Semaḥot, turn out to be the rare individual who recovers from his

current condition. However, this concern is prompted only by the fact that a positive ECG

reading is so out of the ordinary for a non-breathing patient: the highly unexpected nature of

this result suggests that the observable absence of other vital signs may not tell the whole

story, and that our diagnosis of death may not be correct.16 This cannot be said of the heartbeat

of a brainstem-dead patient, which is perfectly consistent with our expectations for someone in

this condition. To the extent that we hope against hope that a patient diagnosed as brainstem

dead might make a miraculous recovery (there are, after all, a handful of well-publicized

instances of this happening), it is based on the possible inaccuracy of the diagnostic tests that

were administered, not on the persistence of his heartbeat.17

15

R. Feinstein also refers implicitly to mechanical ventilation in his 1968 responsum (§3), where he addresses whether one may use “artificial means” to prolong the life of a terminally ill patient. 16

Rabbi Feinstein’s concern in this passage appears virtually identical to that expressed by R. Shalom Mordechai Schwadron in his responsa, Maharsham 6:124. This responsum addresses a case in which members of the Jewish burial society (ḥevra qadisha) were concerned that they had not conclusively established an individual’s death in their haste to bury him before Shabbat. Initially R. Schwadron validated their concern based on their report that the individual emitted some sort of sound during the purification process: he explains that one may not rely on the cessation of breathing to establish death when the individual exhibits a symptom “not commonly found among deceased individuals.” (Ultimately he reassured them that they had acted appropriately, since they observed no further indications of life during their subsequent handling of the body.) For the text of this responsum, see Appendix 3 of this book. 17

For more discussion on possible recovery and what functionality, if any, could be recovered, see Howard Doyle’s article in this volume.


12

According this explanation, R. Feinstein’s ruling regarding heart activity detected in a

non-breathing and non-ventilated patient represents the exception, not the rule, and does not

reflect the idea that heart activity in-and-of itself is a dispositive sign of life. Rather, residual

heart activity is significant precisely because it suggests that the cessation of other vital signs,

such as respiration, may be temporary, just as they were for the individual in Semaḥot. This

point brings us to R. Feinstein’s 1976 responsum (Iggrot Moshe, YD 3:132) in which he directly

addresses the question of how to determine whether autonomous respiration has ceased

irreversibly.

Part 5 – The Purpose of Assessing Brain Activity

As we mentioned above, R. Feinstein’s 1976 responsum, addressed to his son-in-law, Rabbi Dr.

Moshe Dovid Tendler, deals with the problems in diagnosing death raised by mechanical

ventilation. Here, too, his point of departure is that death is diagnosed by the absence of

autonomous respiration, but this poses a difficulty in individuals connected to a ventilator. R.

Feinstein maintains that the general practice of removing the ventilator in order to assess the

patient’s autonomous respiratory ability is forbidden, presumably because the act of

disconnecting a still-living patient might inadvertently cause his death.18 As a result, R.

Feinstein allows such an assessment to be done only when the ventilator must be removed for

other reasons, such as maintenance or the replacement of the oxygen tank.19

The problem is compounded, however, in cases where the patient’s condition is the

result of an accident or other sudden event:

שמים בידי שנחלו באינשי זהו אבל

שהוכו באלו אבל שהיא מחלה באיזו י"ע בעקסידענט) דרכים בתאונת וכדומה מחלונות נפילה י"וע( הקארס העצבים התכווצות י"שע שאירע להריאה הסמוכים מקומות באיזה לנשום יכולין אינם הנשימה ולכלי

רק אף שינשומו זמן איזה וכשיעבור מקומות יתפשטו המכונה י"ע

בעצמם לנשום ויתחילו הנכווצים בעצמן לנשום יכולין שאין אף שאלו

But all this is in reference to people suffering from a disease, but regarding those who were injured in a car accident or a fall from a window and the like, it may occur that they can’t breathe due to the contraction of the nerves near the lungs and respiratory organs, but after breathing for some time by means of a machine (i.e., respirator) these contracted nerves will expand and they will begin to breathe independently. Regarding these individuals, even if they can’t breathe independently and no other indicia of life are

18

R. Feinstein does not elaborate on this point. R. Shabbtai Rappaport suggests that R. Feinstein considers oxygen to be an essential substance that one may not withdraw from a goses (an individual in the throes of death), lest its removal bring about his death; see: Shabbtai Rappaport, “Bei’ur Da’at ha-Gaon Rav Moshe Feinstein be-Sugyat ha-Mavet ha-Mohi,” Assia (book), vol. 7: 148e-148g. 19

Obviously this recommendation is not relevant to contemporary ventilators, which do not rely on oxygen tanks and do not normally need to be removed for servicing. However, there are other ways for doctors to assess the patient’s ability to breathe independently while complying with R. Feinstein’s restriction, such as providing oxygen through a thin tube inserted into the trachea while disconnecting the main tube of the ventilator (Edward Reichman, personal communication). Contrast with Bleich, “Survey”, 133.


13

אחרים חיות עניני בהם ניכרין לא וגם , מתים עדיין שאינם אפשר

visible, it is possible that they’re still not considered dead.

נסיון איכא שעתה אומר שאתה וכיון י"ע לברר יכולין גדולים שרופאים

י"ע בהגוף לחלוחית איזו זריקת שיש הקשר שנפסק לידע הגידים זה יבא לא שאם הגוף כל עם להמוח שוב להמוח שאין ברור הוא להמוח

נרקב שכבר וגם להגוף שייכות שום, בכח הראש כהותז והוי לגמרי המוח

שאף באלו להחמיר לנו יש כ"שא י"ע לא אף בכלום כבר מרגיש שאינו כלל נושם שאינו ואף מחט דקירת

מת שהוא יחליטו שלא המכונה בלא שיש יראו שאם זו בדיקה שיעשו עד

נושם שאינו אף הגוף עם להמוח קשר ורק, גדול זמן אף בפיו המכונה יתנו

קשר שאין הבדיקה י"ע כשיראו שאינו זה י"ע יחליטו הגוף עם להמוח . למת נושם

And since you (i.e., R. Tendler) say that there’s now a test with which expert doctors can determine—by means of injecting [a radioactive nucleotide solution] into the blood vessels—whether the connection between the brain and the body has been severed, for if [the radioactive solution] doesn’t reach the brain, it is clear that the brain has no more bearing on the body and also that the brain has rotted completely, and it is as if the head was forcibly severed from the body; if so, we must be stringent with such a patient such that even if he’s completely unresponsive—even to a pinprick—and even if he doesn’t breathe independently at all, we may not determine that he is dead until they perform this test. For if they see that there is a connection between the brain and the body—even if he’s not breathing—they should put the ventilator in this mouth, even for a long time; and only when they determine by means of this test that there is no longer a connection between the brain and the body, then they may determine—based on lack of independent respiration—that he is dead.

סם מיני שלקחו דבאלו הערת וגם שיצא שעד שינה כדורי הרבה וכגון שלכן, לנשום יכולין אינם מהגוף הסם

זמן בפיו תהיה שהמכונה להצריך יש הסם אין שכבר ברור שיהיה עד ארוך זה לבדוק הרופאים שיכולין בגוף

יוכלו ואז, ממנו שיוציאו דם בטפת עוד לפיו המכונה את להחזיר שלא

כלל נושם אינו שאם ויראו הפעם הוא בקושי רק אף נושם ואם מת הוא

.הפעם עוד לפיו המכונה ויחזירו חי

You also noted that there are those who have taken types of drugs, such as an overdose of sleeping pills, who cannot breathe until the drugs leave their body. Therefore one must require that the [respirator] remain in their mouth for an extended period until it is clear that the drugs are no longer present in his body, which the doctors can check by extracting blood. And then they may refrain from returning the [respirator] to his mouth [once it is removed for servicing] and observe him, for if he doesn’t breathe at all he is dead, but if he breathes—even if only with difficulty—he is alive, and they must return the [respirator] to his mouth once again.

R. Feinstein is aware that there are numerous conditions that may cause cessation of

autonomous respiration, not all of which are permanent. If there is reason to suspect that the

condition preventing autonomous respiration is temporary (e.g., the thoracic cavity may be

compressed, the patient has overdosed on barbiturates or other drugs), R. Feinstein insists that

additional tests have to be performed to confirm the individual’s death. It is here that R.


14

Feinstein introduces the notion of testing for brain activity, specifically the use of a radionuclide

cerebral blood flow scan.20

Some scholars conclude that this position is a departure from R. Feinstein’s stance in his

1970 responsum, where he ostensibly rejects the “brain death” standard espoused by the

medical community.21 But as we emphasized above, what the 1970 responsum actually says is

that brain and heart function are the sources of life, while respiration is the definitive indicator

of when the heart and brain stop providing life force to the body. Hence the most cogent

explanation for R. Feinstein’s requirement of the blood flow scan is to clarify whether cessation

of breathing is the result of the brain not providing life force to the body or of another,

peripheral condition. Not only does this explanation make his ruling here consistent with the

premises laid out in his previous responsum, but it is also the straightforward meaning of his

language in the above passage, where he states that even once the test establishes a lack of

blood flow to the brain, death is only determined only “based on lack of independent

respiration.”

This responsum also bolsters my conclusion regarding the significance of cardiac

activity: nowhere in this responsum does R. Feinstein mention heart activity, even though he is

addressing the case of an artificially ventilated patient. Since there would be no reason to

continue ventilating a patient whose heart had already stopped, R. Feinstein’s omission of any

reference to heart function strongly suggests that he does not consider heart activity after the

cessation of autonomous respiration to be a dispositive sign of life. Were this merely an

argument from silence, one could argue—with considerable difficulty—that R. Feinstein is

referring to an idiosyncratic case where, for some reason, doctors have continued to ventilate a

non-heart-beating patient, and he makes no mention of this fact because he takes for granted

that any heart activity would indicate of life.22 However, R. Feinstein’s endorsement of the

20

For more on this test and how it works, see Zelik Frischer’s article in this volume. 21

Steinberg, 61-2; and Kunin, 49. 22

Abraham (“Kevi’at Rega ha-Mavet,” 83) suggests this interpretation of R. Feinstein’s ruling, in part because it makes this responsum consistent with the way he understands R. Feinstein’s 1970 responsum (see above, n. 11). However, while Abraham finds it incredible that R. Feinstein would contradict an earlier responsum, he finds it equally incredible that R. Feinstein would require neurological confirmation—even as an added stringency—for the death of an accident victim with no autonomous respiration and no heartbeat.

In contrast, R. Bleich (“Cerebral,” 59-60) does find this a reasonable understanding of R. Feinstein’s ruling. Likewise, both the RCA Va’ad Halacha (RCA, 53) and R. Shabtai (pp. 240-241) propose that R. Feinstein is referring to a non-heart-beating patient, and that R. Feinstein’s position here correlates with the notion he expressed in his 1970 responsum that the heart may continue to provide life force to the body even after it has stopped beating. However, none of these authors explains how the radionuclide scan would be expected to work were the heart not pumping blood through the body. (R. Bleich also suggests an alternative explanation for R. Feinstein’s ruling—see the appendix to this article.)


15

radionuclide scan confirms that he is referring to a typical case where the patient’s heart is

beating, since this test relies on blood flow from the heart.23

On the other hand, some opponents of brainstem death draw on the language of this

responsum to formulate another argument. They note that R. Feinstein assumes that the blood

flow scan establishes “that the brain has no more bearing on the body and also that the brain

has rotted completely, and it is as if the head was forcibly severed from the body.” This wording

echoes a claim that R. Tendler himself articulated elsewhere, that the medically accepted

standard of “whole-brain death”—defined as the complete destruction of the entire brain (i.e.,

including the brainstem) and established by the complete cessation of all brain functions—

should be considered a halakhically acceptable standard of death because it constitutes

“physiological decapitation”.24

However, some of the medical assumptions behind this claim have now been called into

question. In the past two decades, research has shown that the brain may retain significant

structural integrity even after clinical brainstem death, and that the hypothalamus often

continues various homeostatic functions, such as regulation of body temperature, occasionally

for extended periods of time. Hence opponents of brainstem death argue that the standard

medical tests used to establish this condition can no longer be said to meet the bar that R.

Feinstein sets, and that his endorsement of the radionuclide scan may no longer be relied

upon.25

This argument has been challenged by R. Dr. Edward Reichman,26 who notes that it is

premised on the assumption that R. Feinstein considers brain criteria as an independent

indicator of death, distinct from cessation of breathing. As we’ve already noted, this

assumption takes R. Feinstein’s endorsement of the radionuclide scan out of the context of the

rest of his writings on this topic. Whereas R. Tendler himself frames his analysis as a defense of

a brainstem-death standard, of which cessation of respiration is only one component, R.

Feinstein repeatedly states that cessation of respiration—not cessation of brain function—is

the definitive indicator of death. Hence, according to R. Feinstein, the only fact that the

radionuclide scan need confirm is that the brain is incapable of supporting autonomous

respiration. Any aspect of brain function or integrity that doesn’t relate to the patient’s ability

to breathe independently would not be considered life giving, and would therefore be

irrelevant to the halakhic determination of death.

23

Mordechai Halperin, “Al Da’ato shel ha-Gaon Rav Moshe Feinstein zt”l be-Sugyat ha-Mavet ha-Mohi,” Assia (book), vol. 7, 69. 24

Frank J. Veith et al., “Brain Death: I. A Status Report of Medical and Ethical Considerations,” Journal of the American Medical Assoc. 238:15 (October 10, 1977): 1651-1655; and Fred Rosner & Moshe Dovid Tendler, “Definition of Death in Judaism,” Journal of Halacha and Contemporary Society 17 (1989), 24-25. 25

Abraham Sofer Abraham, Nishmat Avraham, Yoreh Deah 339:2; Bleich, “Brain Death: Medical Myth and Semantic Sleight of Hand,” Le’ela [March 1996], 36-37; and Kunin, 55-56. 26

Edward Reichman, “Don’t Pull the Plug on Brain Death Just Yet,” Tradition 38:4 (2004): 63-69.


16

Based on this, Reichman maintains that the explanation that R. Feinstein offers for the

significance of the blood flow test—“that the brain has no more bearing on the body and also

that the brain has rotted completely”—should not be considered an essential aspect of his

ruling, even if he originally intended these words literally. As far as R. Feinstein’s position is

concerned, the medically accepted criteria used to establish brainstem death would be

sufficient, since the new medical findings uphold the fact that patients diagnosed as brainstem

dead are—without exception—incapable of autonomous respiration.27

Part 6 – The Conceptual Complexity of Rabbi Feinstein’s Position

We have suggested that the central aspect of R. Feinstein’s position is the way that he situates

three distinct physiological phenomena—respiration, heart function and brain function—in

relation to one another: cessation of autonomous respiration is the definitive indicator of when

the heart and the brain have stopped providing life force to the body. Not only have we

documented this aspect of his position from within the text of his responsa, we have also

shown how this accounts for the cases in which he considers heart or brain function significant

even in the absence of autonomous respiration.

Nonetheless, it would seem that this is the element of R. Feinstein’s responsa that has

caused the most confusion about where he stands on brainstem death. Simply put, R. Feinstein

does not recognize any one organ or bodily function as significant in-and-of itself. Cessation of

autonomous respiration is significant only in as far as it reflects the cessation of heart/brain

function, but heart/brain function is significant only as so far as it is manifest in autonomous

respiration. Given the obvious circularity of this position, it is understandable that it would

strike many readers—consciously or unconsciously—as illogical. I suggest that it is scholars’

discomfort with this aspect of R. Feinstein’s position that has drawn them to passages in his

responsa which focus on only one of these bodily functions (such as his ruling in the case of

cardiac activity detected on an ECG), and caused them to overlook or misconstrue other

passages (such as his interpretation of the Ḥakham Tzvi) which describe the complex,

interdependent relationship between these functions.

The difficulty scholars have had absorbing Rabbi Feinstein’s logic is also evident in other

aspects of the brainstem death debate. Some scholars have maintained that defining death as

cessation of respiration precludes taking any brain or heart activity into account. Thus Rabbi J.

David Bleich challenges the respiratory definition of death by citing the example of a polio

victim dependent on an iron lung, an individual who is permanently incapable of breathing and

yet is obviously not dead. In a similar vein, he cites Shmuel’s statement in Gittin (70b) that a

man whose trachea and esophagus have been severed has the legal capacity to issue a get for

27

Ibid., 65-66.


17

his wife: despite his presumed inability to breathe (and impending death), he is still considered

to be alive.28

Yet all that these examples prove is that the inability to breathe—even as a permanent

condition—is relevant to the determination of death only in so far as it reflects the failure of

the heart and the brain. In that sense, these cases are no different than the cases R. Feinstein

addresses in his 1976 responsum, where the patient’s inability to breathe is caused by a

mechanical or chemical problem rather than a neurological one. R. Tendler puts this point

succinctly: “The question isn’t whether a person can or cannot breathe, but only why he can't

breath[e].”29

Scholars’ failure to grasp R. Feinstein’s logic is also apparent in a second common

argument against the respiratory determination of death. Many scholars have suggested that

sources which refer to cessation of breathing, such as the Talmud in Yoma, establish it only as

an indicator of death, leaving open the possibility that death is defined by the cessation of other

bodily functions, such as heart function or other lifelike muscle movement.30 In light of R.

Feinstein’s responsa, this point becomes both self-evident and irrelevant. It is self-evident

because (in R. Feinstein’s words) “it is abundantly clear that the nose isn’t the organ that gives

life to a person, nor is it the organ on which life depends; rather the brain and the heart are the

organs that give life to a person and enable him to breathe via the nose…” It is irrelevant

because the pertinent question is whether or not cessation of breathing constitutes the

definitive indicator of death, to which R. Feinstein answers—repeatedly and consistently—in

the affirmative.

Thus the importance of R. Feinstein’s responsa goes beyond his position on the specific

issue of brainstem death: he establishes a conception of life and the human body that is

profoundly different than the one which prevails in much of the scholarship on this topic. Many

scholars (mostly those who oppose of brainstem death, but also some who support it) conceive

28

“be-Inyan Mavet Mohi u-Kevi’at Zeman ha-Mavet be-Halakha,” Or ha-Mizrah 36 (1987), 73-74; and “Cerebral,” 54, 57-58. R. Bleich insists that the only plausible reason why a polio victim or an individual with a severed trachea would be considered alive is that he presents a heartbeat or other vital movement. He dismisses an equally plausible reason—the fact that these individuals are fully conscious—by saying that “[n]owhere in rabbinic literature is there the slightest hint that consciousness is an indicator of life” (“Cerebral”, 54; see also: Bleich, “Kevi’at ha-Mavet al yedei Hafsakat Pe’ulat ha-Mo’ah (Teshuvot le-Hasagot),” Or ha-Mizrah 37 [1988], 82). Even if we accept R. Bleich’s assertion that consciousness cannot be considered a factor in determining life and death unless it is explicitly identified as such in halakhic literature (a point we will address in more detail below), we might suggest that this is precisely what the Talmud in b Gittin (70b) is doing—establishing consciousness as a dispositive sign of life! 29

“Halakhic Death,” 7. 30

The earliest articulation of this argument may be Bleich, “Establishing,” 95-96. However, this argument has become so central to the rejection of brainstem death that it is made by almost every scholar who espouses that position.


18

of life being “located in a particular part of the body”31 or speak of a particular process as “the

primary vital force in the body”.32 R. Feinstein, however, indicates that the significance of any

physiological phenomenon is fundamentally dependent on context: it is significant only in as far

as it fulfills its role in sustaining the other organs.

What prevents this logical circularity from being problematic is the realization that all

biological systems are necessarily circular in this way. Just as we do not accord the status of

“life” to disembodied organs, we should not consider heartbeat or brain function significant

unless it provides life force to the body as a whole. Again, R. Tendler’s formulation is apt: “The

fact that a polio patient cannot breathe, but is yet alive, is based precisely on the fact that he is

an organized system.” 33 This is the black box we refer to as “life”: an amalgam of biological

functions that is somehow more than the sum of its parts.

Part 7 – Halakhic Sources and Modern Science

No less than his conceptual analysis, R. Feinstein’s use of halakhic texts diverges from the way

most scholars approach this issue. Proponents of a cardiac definition of death emphasize

references to heart function in Rashi’s commentary in Yoma and in the responsa of R.

Ashkenazi and R. Sofer. Proponents of brainstem death, too, point to sources that seem to

establish the brain as the decisive organ by which death is determined, particularly m Ohalot

6:1, which establishes that a decapitated animal is considered dead even if it exhibits

movement.34 R. Feinstein cites all of these sources at some point in his responsa, yet none of

them serves as a basis for his position on how halakha determines death.

R. Feinstein’s analysis of the mishna in Ohalot occupies an entire section of his 1968

responsum (where he explains why the mishna’s ruling regarding decapitation in animals would

apply to humans, as well), yet as we noted above, in his 1970 responsum he insists that brain

function is never mentioned as an indicator of death within halakhic literature.35 Likewise R.

Feinstein cites R. Sofer’s responsum in both his 1970 and 1976 responsa, yet never mentions R.

31

Noam Stadlan, “Conceptual and Logical Problems Arising from Defining Life and Death by the Presence or Absence of Circulation,” Meorot 8 (Tishrei 5771), 67. See also Noam Stadlan’s article in this volume for further discussion of his position. 32

Bleich, “Cerebral,” 60. 33

“Halakhic Death,” 20. 34

This source was first cited in reference to this issue by R. Gedaliah Aharon Rabinowitz and Mordecai Koenigsberg, “Hagdarat ha-Mavet u-Kevi’at Zemano le-Or ha-Halakha,” ha-Darom 32 (1970): 59-76. It also informs R. Tendler’s notion of “physiological decapitation”. 35

As noted above, R. Feinstein does state in his 1976 responsum that an absence of blood flow to the brain renders the patient “as if the head was forcibly severed from the body”—an oblique reference to the mishna in Ohalot. However, as noted about as well, this does not seem to be R. Feinstein’s main rationale for using lack of brainstem function to determine the patient’s death.


19

Sofer’s statement that cessation of heart function is needed to establish death.36 Even the

responsum of R. Ashkenazi, which figures prominently in his 1970 responsum, enters R.

Feinstein’s analysis only because he feels the need to correct R. Gulevsky’s interpretation; he

relates to R. Ashkenazi’s responsum not as a basis for his position but as a source to be squared

with it. In the end, the only halakhic sources that inform R. Feinstein’s position are those that

establish cessation of respiration as the definitive indicator of death, most prominently the

Talmud in b Yoma (85a).

In-and-of itself, a disagreement about the relevance of certain sources is hardly

noteworthy; it is, in fact, an integral part of normative halakhic discourse. We can well

understand why these other scholars try to ground their positions in earlier sources, and we

can also understand why R. Feinstein might find their inferences wanting. What is remarkable is

the way R. Feinstein recognizes both the heart and the brain as the sources of life, yet bases it

on nothing more than common sense. Again we refer to what is arguably the central point in R.

Feinstein’s 1970 responsum (inasmuch as he asserts it three times): “However, it is abundantly

clear [barur u-pashuṭ] that the nose isn’t the organ that gives life to a person, nor is it the organ

on which life depends; rather the brain and the heart are the organs that give life to a person

and enable him to breathe via the nose…” 37

Upon further reflection, we might question whether the central importance of both

heart and brain function is as obvious as R. Feinstein makes it out to be. Our conception of the

body has changed radically and repeatedly since the time of Sages, so that demonstrating

timeless agreement on this point would seem to require a more rigorous and nuanced

examination of the halakhic literature than R. Feinstein provides. One might even argue that R.

Feinstein's conviction is a bit disingenuous: if the primacy of the heart and the brain is so

obvious, why doesn’t it figure explicitly in the traditional sources?

I propose that R. Feinstein’s argument is motivated by a subtle agenda, which

discourages him from delving into this point in more depth: he wants to avoid a contradiction

between halakha and modern science. R. Feinstein is aware that the halakhic sources do not

attest to the significance that modern science accords to heart and brain function; however,

given the lack of contradictory evidence, he would rather assume that what we regard as

common sense was just as commonsensical in the eyes of the Sages. As he writes at the start

of his 1970 responsum (in the first passage cited above): “…it is not possible to say that nature

36

In his 1970 responsum, R. Feinstein cites R. Sofer’s analysis of Semaḥot 8:1 but not his reference to the cessation of pulse, even though R. Feinstein cites him specifically in the context of a case of residual heart function. In his 1976 responsum, R. Feinstein refers generally to R. Sofer’s responsum as support for the notion that, in most cases, death may be established by repeatedly confirming that breathing has ceased. Contrast with Bleich, Time of Death, 174; and RCA, 49 (n. 111). 37

This point severely challenges R. Bleich’s assertion cited above that obvious signs of life, such as consciousness, cannot be halakhically valid unless they are explicitly attested to in halakhic literature.


20

has changed, for even in the time of the Sages the brain worked as it does now and all human

life depended on it…” In context, the point of this statement is to reject doctors’ use of brain

function instead of respiration to determine death. However, based on R. Feinstein’s

subsequent exposition, it is clear that the logic of this statement cuts both ways: if the nature of

the human body has not changed, then just as the legal dicta of the Sages are pertinent today,

so, too, the scientific principles of modern medicine must be pertinent to our understanding of

the Sages’ rulings.

Yet as this passage indicates, R. Feinstein still makes a sharp distinction between truths

learned from contemporary science and those grounded in halakhic sources. Ultimately death

is determined solely by cessation of respiration, the only standard of death that is

unambiguously attested in halakhic literature; we may not introduce a new independent

parameter based on the perspective of contemporary medicine. But in a modern medical

context, the very meaning of “cessation of respiration” becomes much more complex. The

most significant aspect of R. Feinstein’s position is not that he identifies cessation of respiration

as the definitive indicator of death, but that he reinterprets what this standard means by

situating it within the paradigm of modern medicine. Based on modern medicine’s

understanding of the interdependence of respiration and both heart and brain function, R.

Feinstein effectively translates the traditional halakhic position—“Death is determined by

cessation of respiration”—into modern medical terms: “Death is determined by the permanent

cessation of heart and brain activity capable of supporting autonomous respiration.”

Appendix: Alternate interpretations of R. Feinstein’s 1976 responsum

In the main article, I cited R. Bleich’s suggestion that R. Feinstein endorses the use of the

cerebral brain scan to determine death only when the patient’s heart has already stopped

beating. Perhaps in light of the practical difficulty of this explanation (the brain scan relies on

blood flow from the heart), R. Bleich also offers an alternate explanation of R. Feinstein’s ruling.

In a 1977 essay, he explains that in the cases where R. Feinstein permits not reattaching the

patient to the respirator, his reasoning is based on a position expressed in his 1968 responsum

that it is not necessary to prolong the life of a goses (i.e., an individual in the last throes of

life).38 Commenting on this statement of R. Feinstein, R. Bleich writes:

If not only medicaments but also oxygen need not be administered to a goses, it

would follow that a goses need not be attached to a respirator. This

38

R. Feinstein explains that in general, prolonging a dying person’s life prolongs his or her agony (“ יציאת עכוב סתםביסורים הוא בגוסס הנפש ”).


21

consideration is, however, germane only in the case of a patient actually in a

state of gesisah.39

R. Bleich elaborates on this approach in a 1991 essay, where he seems to concede that

R. Feinstein’s 1976 responsum is addressing a case in which the patient’s heart is still beating,

but insists that the responsum “addresses, not determination of death, but criteria for

withholding treatment from a terminally ill patient,” in other words, the question of when the

patient is considered a goses such that one may withhold (though not withdraw) the supply of

oxygen.40

R. Bleich does not offer a line-by-line exegesis of the responsum, but it is genuinely

difficult to see how this approach, as he presents it, could possibly be sustained. Contrary to R.

Bleich’s assertion that the responsum doesn’t address the determination of death, R. Feinstein

titles the responsum, “Establishing the time of death,” and opens with the words, “On the

matter of determining when an individual is considered dead…” In each of the cases he

addresses, R. Feinstein states that cessation of autonomous renders the patient dead; the term

“goses”, in fact, does not appear in the entire responsum. The reason that R. Feinstein gives for

not reattaching the ventilator when the patient exhibits no autonomous respiration for fifteen

minutes is that we are “certain that he is dead,” not that he is a goses. If the category of goses

applies to any case in this responsum, it is to the patient who does exhibit autonomous

breathing when the ventilator is removed for servicing. If this categorization is correct, then it

would demonstrate that R. Feinstein does consider oxygen a necessary component of

treatment even for a goses.

The implausibility of this explanation suggests that R. Bleich may have in mind

something closer to the interpretation suggested by R. Shlomo Zalman Auerbach in his

assessment of R. Feinstein’s letter to Dr. Eliot Bondi,41 which clarified his 1976 ruling. R.

Auerbach suggests that when the letter states that a patient who cannot breathe

independently is “considered to be dead”, it is relating only to the permissibility of not replacing

the ventilator.42 In other words, we are willing to rely on our diagnosis of death enough to

discontinue treatment, but not enough to actively harvest the patient’s organs.

According to this interpretation, a patient who could not breathe independently would

not be considered a goses, a category that is considered fully alive, but rather would fall within

the range of a safeq ḥai/safeq meit—someone whose death is legally indeterminate. Hence,

following R. Auerbach’s understanding, the reason one need not reattach the ventilator when

39

Bleich, “Survey,” 132. 40

“The Halakhic Status of Brain Death Criteria: Further Observations,” in Time of Death, 173. 41

A photocopy of this letter appears in Assia [book], vol. 7, 148-148a. 42

Abraham, Nishmat Avraham, Yoreh Deah 339:2.


22

the patient cannot breathe independently is not that he is considered a goses, but that with

regard to the issue of withdrawing treatment, he is considered to be dead.

This explanation is certainly less problematic than R. Bleich’s formulation, but still, there

is nothing in R. Feinstein’s language to indicate that he has any hesitancy about considering

such patients to be dead. R. Auerbach acknowledges that this is not the simple meaning of the

responsum; he proposes it only because he finds it hard to believe that R. Feinstein would

approve of harvesting the patient’s organs without saying so explicitly, given that this was such

a “hot” topic in 1985, when the letter to Dr. Bondi was written. To this there is little more to

say: R. Auerbach’s assessment of R. Feinstein’s mindset may be correct, but to my mind it says

more about his own, more stringent position on this issue.

R. Daniel Reifman

Lecturer – Midreshet Lindenbaum

Rabbi Moshe Feinstein on Brainstem Death: A Reassessment

Documents