Rabbi Moshe Dovid Tendler, PhD
Rabbi Moshe Dovid Tendler is the rabbi of The Community Synagogue of Monsey. He is a senior Rosh Yeshiva at Yeshiva University’s RIETS and the Rabbi Isaac and Bella Tendler Professor of Jewish Medical Ethics and Professor of Biology at Yeshiva College. He has a Ph.D. in Microbiology and is noted as an expert on Jewish medical ethics.
Brainstem death, a.k.a. neurological death: a.k.a. respiratory death, raises the bar above respiratory death by requiring the “total cessation of all brain functions including the brainstem.” This definition is accepted internationally. It conforms fully with the halacha as stated in the Talmud (Yoma 85a) as elucidated by Rashi, “if he appears to have died, no movements are discerned… to ascertain the truth, examine if there is breath in his nostrils. If he does not exhale, he has surely died.”
The B.S.D. protocol requires testing to ascertain that the patient does not respond to any stimulus. The neurological exam must affirm: unreactive pupils, no elicited eye movements, no motor response to stimulation, no grimacing, no blink response, no gag reflex, no respiratory movements such as cough, sigh or hiccup. Only after such affirmation the APNEA test is performed to confirm that without the pumping action of the ventilator, there is no autonomous breathing. Confirmatory tests can be performed if required to satisfy those who so demand. These can include a nuclide scan to confirm that no blood is reaching the brain; a test to prove that the brain is not utilizing glucose; as well as others. In truth, the clinical findings of the B.S.D. protocol are definitive such that confirmatory tests are not usually needed.
The writings of those who oppose accepting B.S.D. as halachically approved indicia of death reveal their unfamiliarity with the above described protocol. One author cites a halacha regarding a shochet who slaughters a B.S.D. animal [Rambam, Hilchot Shechita 6:4] whose “brain spills like water.” Surely such a case does not exist. If the animal were B.S.D. it would be on a ventilator in an intensive care unit, lying motionless and unresponsive to all stimuli! The “water” referred to is either spinal fluid or abscess drainage, not brain tissue. Another author, when writing in opposition to accepting B.S.D. as halachically valid, equates a polio patient who walks, talks, laughs, cries, with a B.S.D. patient because he needs a diaphragm stimulator or an iron lung to enable him to breath. He is not motionless, unresponsive to stimuli, as Rashi requires. He has a respiratory deficit, corrected by modern medical technology.
My great father-in-law ruled clearly, definitively, that B.S.D. is halachic death. Inability to breath and unresponsiveness to all stimuli with or without confirmatory blood flow tests confirm halachic death. Breathing via a ventilator, he stated, is not a sign of life. A beating heart under these conditions is not a sign of life. This patient is physiologically decapitated because of the lack of effective blood flow to the brain. A decapitated animal maintained on a ventilator will continue to maintain full blood pressure with the heart not missing a beat.
The attempt of some to parse his written responsa and raise doubts as to his ruling that B.S.D. is halachic death is totally unjustified. I and his son Rav Dovid did not only read his responsa. We saw him write them, discussed them with him, and heard him clearly unambiguously conclude: “a B.S.D. patient, whose heart is beating and lungs inflating via a ventilator, is halachically dead.” Claims of discrepancies in his responsa are erroneous. They confuse his rulings on cerebral death with B.S.D. When writing about cerebral death, he clearly notes “yachol linshom,” the patient can breath independently unlike the B.S.D. patient.
Those opposing B.S.D. cite the famous responsum of the “Chacham Tzvi” concerning “the chicken without a heart,” in which he emphasizes that the heart is the organ of life. Strangely, they never note that he assigns the heart to the respiratory system, not the circulatory system, with the function of “cooling the air and sending it to the lungs.” This erroneous physiology surely should not be relevant today.
My prior written analyses, and my lectures now available on the internet, should be adequate resource material for allowing all who are interested in understanding why B.S.D. is the most accurate halachic indicia that death has occurred. The recent controversial publication by the R.C.A. (link – PDF) contains among its many errors two statements that must be retracted publicly:
- A B.S.D. patient can sometimes recover (pages 22-23). This is incorrect. Never in the history of medicine did a B.S.D. patient show any “upswing” in his status, let alone recover.
- B.S.D. is not halachic death, nevertheless one may receive a vital organ transplant from a B.S.D. donor (pages 68-70,74). I consider this statement to be incorrect and irresponsible halacha. If B.S.D. is not halachic death, then removing the heart from the donor is an act of murder. Organs are not removed and put on sale in supermarkets. They are removed when ordered by the physicians attending the recipient. If B.S.D. is not death, then the doctors of the donor are “hit men” ordered to murder their patient.
These mistakes are damaging and must be corrected.