May 4, 2023|י"ג אייר ה' אלפים תשפ"ג The brain death controversy in light of recent events By Rabbi Jonathan Muskat

Yesterday, I choked up watching a very moving video that went viral. It was a video of the Dee family meeting the patients whose lives were saved by the organ donations of Lucy Dee, who, along with two of her children, were murdered a few weeks ago. Out of this horrific tragedy, Lucy Dee saved five lives through her posthumous organ donations.

One of the most powerful parts of the video was when the daughters of Lucy Dee listened to their mother’s heart with the aid of a stethoscope in the body of Lital Valencia, the woman that they saved. Lital hugged and comforted Keren Dee as she cried.

The halachic propriety of heart donations has been and continues to be the subject of so much discussion. As a student of halacha, I have found that this issue is one of the most challenging issues that we face because the stakes are great in either direction. Since the heart can only be donated in a case of brain-death when the heart is still beating with the help of a ventilator, the permissibility of organ donation in this case depends on whether someone who is brain-death is halachically classified as dead. If we assume that someone who is brain-dead is halachically alive as long as his heart is beating, then harvesting his heart would not be permitted because it would be considered killing the person. If we assume that someone who is brain-dead is halachically dead even if his heart is beating, then donating organs to save a life would be a mitzvah of the highest order.

It’s one thing to study this topic in the beit midrash and the halachic sources that point in either direction. It’s another thing to see the implications of this ruling in action. When I see that someone is brain-dead and is not coming back to life under any circumstances and someone else’s life can be saved by organ donation, I very much would love to see brain-death criteria for the determination of death to become the mainstream ruling such that many more lives are saved.

At the same time, I am aware that sometimes halachic authorities may not be able to rule according to what they feel intuitively would provide the best outcome for society if it is inconsistent with their interpretation of halacha. Dr. Elana Stein Hain, Senior Fellow at the Shalom Hartman Institute of North America, wrote her doctoral dissertation in Religion at Columbia University on the topic of “Rabbinic Legal Loopholes; Formalism, Equity and Subjectivity.” In this paper, she compared deontologists to utilitarians. Utilitarians are only concerned with what is right and equitable, whereas deontologists value the law itself and are constrained by the law and may not change the law even when they feel that it is equitable to do so.

I would imagine that there are a number of issues where halachic authorities feel constrained from doing what they feel is equitable because they defer to the halachic system which tells them that even if a course of action seems equitable, it would violate halachic principles. In the case of brain death, it seems to me that most of the leading poskim in America either believe that brain death is not halachic death or they are uncertain if it is halachic death. Based on either position, they would rule against harvesting organs from a brain-dead patient because by doing so they might be considered as if they halachically killed the person.

A rabbinic colleague told me that in Israel, virtually all of the leading poskim in the religious Zionist camp support the brain-death criteria for the determination of death. What Rabbi Leo Dee did was consistent with the psak of his rav and the rabbinic community in which he finds himself and therefore, what he did was a mitzva of the highest order.

When does life end? To what extent is that a mystical question, i.e., when the soul leaves the body, and to what extent is that a scientific question? I wonder if the halachic position of brain death may evolve over time. For example, another rabbinic colleague told me with regard to abortion, the previous generation of poskim tended to side with the more restrictive position of Rav Moshe Feinstein, whereas the current generation of poskim tends to side with the more permissive position of Rav Eliezer Waldenberg. Will the same thing happen with brain death? Or will scientific advances in transplanting pig hearts into human beings eventually render this halachic question moot?

Whatever the future holds, I confess that on a number of issues I may feel like a deontologist, confined to certain halachic positions that may sometimes challenge my moral sensibilities and yet I defer to these rulings as a sign of faith in the halachic system. At the same time, I am grateful that the brain-death issue in Israel at the very least in my community has been decided in favor of organ donation and the powerfully moving video that I watched a few days ago was a powerful testament to my gratitude.