After the first human heart transplants in the 1960s, the late Rabbi Moshe Feinstein (1895-1986), the leading authority on Halachah in the United States, ruled that transplants constituted “double murder”: first, of the donor, whose heart was still functioning, and next, of the recipient, who invariably died shortly after the first experimental transplants.  

Later, transplant efficacy improved, and Rabbi Feinstein amended his position, claiming that transplants constituted murder only of the donor. As reported by reliable witnesses (but still disputed by some,) late in his life Rabbi Feinstein came around to supporting transplants as permissible according to Halachah.

This crucial change was primarily a result of the wide acceptance of “brain death” as a legitimate criterion for determining who is and is not alive. If we wait for a person’s heart and lungs to cease functioning (the traditional way of determining death), the organs become unusable for most transplants.  But if people are legally and halachically dead when their brain function ceases, even though their cardio-pulmonary function continues to be maintained by a machine, transplants are possible and legitimate.  

This changes the Jewish religious view of organ transplants: if they are permissible, perhaps they are halachically obligatory or at least exceedingly meritorious. If we can save the life of another human being by donating an organ from our body, an organ that is no longer keeping us alive, shouldn’t we do so?

The establishment “centrist Orthodox” rabbinic organization, the Rabbinical Council of America (RCA), has had a vacillating position on brain death. Decades ago, the RCA executive declared that brain dead patients are dead. But five years ago, the RCA published a long position paper (www.rabbis.org) that, while refraining from taking a definitive stand, unmistakably leaned toward rejecting brain death as a halachically acceptable way to distinguish life and death.  

Now the newly established unabashedly modern Orthodox (or “open Orthodox”) rabbinic organization, the International Rabbinic Fellowship (IRF), has joined the fray, publishing a collection of 22 essays entitled Halakhic Realities: Collected Essays on Brain Death, edited by Rabbi Dr. Zev Farber.  (Full disclosure: I am a member of both the RCA and the IRF.) The essays, written by rabbis, ethicists and physicians, have some overlap, but surprisingly they manage to approach the issue from new and different angles. Most, but not all of the essays, support and encourage transplants.

The variety of tone in the book is striking. For example, Rabbi Yitz Greenberg, sounding like the prophets of old, chastises those who say that a brain dead patient is not really dead:

“In the name of fealty to tradition, a tradition based on very limited and primitive science is upheld against a procedure that has saved thousands of lives. In the name of the sanctity of life, an act of lifesaving is labelled murder.”

Contrast this with the dispassionate words of the philosopher-bioethicist, Jeremy Rosenbaum Simon: “Neither side has the clearly ‘right’ answers to these questions.”

The internal differences in the book extend beyond tone. A highly respected Israeli rabbi who supports doing transplants, Rabbi Yoel Bin-Nun, writes:

“Many people mistakenly believe that organ donation is the process of removing organs from the body of a dying person in the last moments of his or her life – God forbid! – an action that would be forbidden both halachically as well as medically and legally. The truth is quite the contrary. The entire medical establishment in our days agrees – and this rule is in force – that organs may be harvested only after the donor is deceased.”

Since Rabbi Bin-Nun is convinced that brain dead patients are unambiguously dead, medically and halachically, he sees organ donation as permitted and even as an important mitzvah.

Yet, some of the essays by physicians raise questions about Rabbi Bin-Nun’s certainty. The most gripping one is by Dr. Howard Doyle, a physician who performs transplants, treats transplant recipients, and also treats “the type of patient likely to become their donor.”  

Doyle supports transplants, but is candid about the medical and ethical ambiguities involved. While no one who was correctly diagnosed as “brain dead” has ever recovered to live a meaningful life, by most people’s definition, Doyle describes many cases where patients were declared brain dead, but subsequently doctors reversed that determination, realizing that their brains were still functioning.  Apparently, different jurisdictions have different rules about who determines brain death and how. In some U.S. states, “a physician isn’t necessary . . and most require no specialized training.” Even when the diagnosis of brain death is accurate, Doyle admits that such people are still alive in some sense of the word.  

He concludes: “I do not believe that patients who meet the accepted criteria for brain death are dead – biologically, metaphysically, ontologically, and socially dead.”  But he continues, “I also do not believe a death so absolute is necessary for vital organ donation to be ethical. The donor need only be beyond harm. Or, stated differently, he should be dead enough.” In the volume’s summary essay, Rabbi Farber tries to justify Jewishly what it means to see an organ donor as not fully dead and still support transplants.

This first volume of essays published by the IRF sets a high standard. In general, it advocates for the mitzvah of organ donation. But in the best liberal tradition, it leaves room for different and even mutually exclusive viewpoints.  This book will not end the halachic debate on brain death but it should move it to a higher level. n