Death: Biological State or Halachic-Legal Status?

A Review of Really Dead?, by Naftali Moses, PhD

The determination of the moment of death is one of the most perplexing issues in modern medicine. Perhaps the primary reason for this is the fact that defining death is not only a medical issue. In fact, the debate over what constitutes “death,” and at what point (if any) organs can be taken from “deceased” donors, has included not only medical professionals, but lawyers, religious leaders, and politicians as well.

In the state of Israel, though, the discourse has been unique, in large part due to the inclusion of the views of Jewish law and the participation of the Israeli Rabbinate. In Really Dead?, Naftali Moses, who holds a PhD in medical history, explores the relationship between the secular-scientific and rabbinic groups in Israel over a twenty-year period (1967-1986). On that backdrop, he analyzes in great detail the events surrounding the Rabbinate’s issuance and withdrawal of support for heart transplants in Israel. This review will first briefly summarize the book’s structure. It will then focus on the author’s explanation of why there was discord between the Rabbinate and the medical professionals who sought their halachic approval to perform heart transplants in Israel.

In the first section of the book, Moses describes the responses to the first heart transplant performed in Israel in 1968. He thoroughly details the discourse among doctors, politicians, and rabbis. At the same time, the author explores the halachic literature on the subject of determining the moment of death according to Jewish law published subsequent to the transplant. The analysis includes Talmudic sources, responsa from leading halachic authorities of the time, and articles published by scholars of both medicine and Jewish law. Throughout the discussion, Dr. Moses quotes directly from many of the primary sources, responsa and articles, which allows the reader to experience the dialogue first-hand and participate in analyzing the issues.

In the second section, Moses discusses the efforts of the Israeli Health Ministry and Hadassah Medical Center in getting the Israeli Chief Rabbinate’s halachic approval to perform heart transplants. Once again, the author goes into detail regarding the historical events, and he carefully analyzes the language of the Rabbinate’s psak (decision) in light of the role of the Rabbinate in Israeli society, its relationship with those in the field of medicine, and the prevailing halachic and scientific opinions.

Dr. Moses is particularly concerned with the fact that the Rabbinate seemed determined to be actively involved in the declaration of an organ donor’s death.  He argues that besides for the Rabbinate’s mistrust of the medical establishment, there was a more fundamental reason why the religious leaders would not simply give their approbation. Essentially, Moses posits that in contrast to medicine’s understanding of death as a biological fact, the rabbis viewed biology only as a means of establishing “unequivocally the halakhic-legal status of the patient.” In other words, to the Rabbinate “[d]eath remained a halakhic category whose presence or absence may have been indicated by scientific tests, but which ultimately belonged to the parameters shaped by halakhic reasoning and not the world of scientifically-measured potentials” (emphasis in original).

The author develops his argument by citing examples from the Talmud and later authorities of the use of scientific evidence in halachic determinations. He refers to the decisions of contemporary poskim which have utilized scientific evidence, but have not accepted such evidence as absolute fact. As Dr. Moses explains, the halacha must be determined in accordance with legal principles, not only biological “facts.”

However, Moses then goes on to suggest that since, in the eyes of the Rabbinate, the question of the life and death of an organ donor is one of halachic status, “rabbinic witness to the change of status” was required. He argues that the concept of halut––the conceptual change in halachic status––demands that the change in status be observed and recorded by an expert in the pertinent areas of Jewish law. That is why, according to the author, the Rabbinate insisted on having a representative in the group that determines the patient’s death.

It is this last point of Dr. Moses’s argument that I find the hardest to accept. As Moses correctly observes, there are some areas of halacha––namely, those involving marriage and divorce––in which the witnessing of an event is necessary to effectuate a halut (change in status). However, in many other areas, a change in status takes place regardless of whether there are witnesses to an occurrence. For example, although the betrothal of a woman is invalid in the absence of witnesses, a financial transaction needs no witnesses in order to be effective. In fact, the requirement of witnessing to change a halachic status seems to be unique to the laws of marriage and divorce. Thus, the author’s assertion that the Rabbinate required a rabbinic witnessing of the organ donor’s death to cause a change in halachic status is highly questionable.

Nevertheless, Really Dead? provides a fascinating historical account of the debate regarding brain-death and heart transplants in Israel. Dr. Moses recounts interviews with people directly involved and closely examines the relevant halachic sources and scientific publications. This book is an indispensable resource in the study of halacha, modern science and Israeli society.

(For a different review of this book, see: Brain Death in Israel, Hirhurim – Torah Musings, Oct. 4, 2011.)

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