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The Halakhic Definition of Life in a Bioethical Context

Be-chasdei Ha-Kadosh Barukh Hu, Yishtabach Shemo

Shalom C. Spira

16 Sivan, 5779

INTRODUCTION

In Sivan 5770, the Rabbinical Council of America’s Vaad Halacha, chaired by R.


Asher Bush, released a study endeavouring to define death for purposes of hilkhot
piku’ach nefesh.1 That treatise cites this student’s essay “A Student’s Reflections on the
Halachic Piku‘ach Nefesh Definition of Life in a Bioethical Context,” composed [but
unpublished at the time] during 5767 at the RIETS kollel, as a source of information.2
In the aftermath of the Vaad Halacha study, many scholars have offered valuable
responses to the Vaad Halacha report, some challenging and others supporting.
Accordingly, this student was encouraged to update and publish his [aforementioned
referenced] essay, with an appropriately revised title, henceforth presented.
Already in 1975, two physicians highlighted the importance of this question,
writing as follows in a medical textbook:

"Modern methods of resuscitation have been spectacularly successful –


so much so that the point at which death ends human existence has
become difficult to determine. Although respiratory and higher nervous
system centers have been destroyed by prolonged anoxia, viability of what
has been termed "a human heart-lung preparation" may be continued for
lengthy periods by various means, including major organ transplants. It
seems probable that at some time in the future some type of civil action –
for instance, an important will contest – will result in establishment of
generally accepted basic medicolegal criteria for "life", "existence" and
"death"."3

Those comments underscore the fact that any secular legal definition of life or
death in a bioethical context is purely capricious. Only Halakhah can provide a true
answer.
To that effect, this essay will systematically classify the relevant Rishonim
regarding the halakhic definition of death, exploring those Rishonim along two inversely
related tracks: (a) those Rishonim who ostensibly recognize a breathless heartbeat as a

1
<http://www.rabbis.org/pdfs/Halachi_%20Issues_the_Determination.pdf>
2
See footnote 135 of the 5770 RCA Vaad Halacha study. This student is grateful to R. Bush and his Vaad
Halacha for the honour of that citation.
3
Dr. Thomas Flint and Dr. Harvey Cain, Emergency Treatment and Management (W. B. Saunders
Company, Philadelphia: 1975), p. 6.

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sign of life; and (b) those Rishonim who recognize physiological decapitation – meaning
that the brain no longer can perform either of its two functions recognized by Talmudic
sources: to provide consciousness and to control respiration – with death. We will then
unify the two surveys together, methodologically analogous to (le-havdil) the
fundamental theorem of calculus in secular mathematics.4
This enterprise will discover that Rif recognizes the notion of physiological
decapitation and hence (probably4a) equates brain death with death, whereas Me’iri
rejects the notion of physiological decapitation and so (probably4b) deems a brain dead
patient to be alive. Of course, Rif is a bona fide practical halakhic source, whereas it is
highly controversial whether the newly discovered manuscripts of Me’iri likewise
constitute a practical halakhic source. Yet, we will further encounter the credible
possibility that Rambam – apparently based on Sifrei to Numbers 19:13 which identifies
fluttering (mefarper) as a sign of life – may independently be of the same view as Me’iri,
and indeed Shulchan Arukh Yoreh De‘ah 370:1 seems to paraphrase Rambam. As a
peripheral supplementary argument, one might also claim that the controversial nature of
Me’iri seems to be counterbalanced by the fact that the traditional and incomplete
commentary to the Talmud of Rabbeinu Shimshon of Shantz that we possess supports
Me’iri.5 The net result of these five “practical Rishonim” on the subject of brain death
(viz. Rif, Me’iri, Rambam, Shulchan Arukh and Rabbeinu Shimshon of Shantz) leaves
the status of a brain dead patient as an intrinsic doubt (safek), such that the mitzvah of
safek piku’ach nefesh summons us to medically treat the brain dead patient.
Quite apart from the abovementioned five “practical Rishonim,” we will
encounter a separate population of three “wild card Rishonim,” who each respectively
offer contradictory comments on the subject of brain death, and so – depending on how
one reconciles the contradiction in each case – each of these Rishonim may
hypothetically be idenitified as an ally to either Rif or Me’iri. These three “wild card
Rishonim” are Rashi, Rosh and Ran.6

4
The fundamental theorem of calculus unifies the two distinct mathematical enterprises of differentiation
and integration, recognizing them as reverse processes of one another. Analogously, the survey of how
some Rishonim recognize a breathless heartbeat as life, and the survey of how some Rishonim define death
by physiological decapitation, are reverse processes of one another.
4a
The reason for the qualifying term “probably” is presented infra, note 170a.
4b
The reason for the qualifying term “probably” is presented infra, note 246a.
5
Viz., there is an argument to be advanced in the form of mi-mah nafshakh (viz. one of two flip sides of the
coin is presumably true, even if we cannot identify with precision which one it is): if one rejects Me’iri
because his manuscripts are non-traditional, one should seemingly accept Rabbeinu Shimshon of Shantz’
traditional commentary. And if one rejects Rabbeinu Shimshon of Shantz because his commentary is
archaeologically incomplete, one should seemingly accept Me’iri whose commentary is archaeologically
complete.
6
In the opinion of this student, even if Rosh – and indeed even if all three “wild card Rishonim” – would
hypothetically be proven to be an ally to Rif, we would still have a safek due to the potentially
countervailing position of Rambam and Shulchan Arukh. The reason for this student’s impression is as
follows. Whereas Shulchan Arukh normally rules like Rif and Rosh against Rambam (as per R. Joseph
Karo’s introduction to Beit Yosef), here we can explain that [even if Rosh would hypothetically be proven
to be an ally of Rif] Shulchan Arukh might bypass his standard “two out of three” algorithm on account of

2
We will further encounter a separate population of four “indeterminate Rishonim”
whose words prima facie appear to be to relevant to brain death, yet upon further
consideration are sufficiently nebulous to be deemed inconclusive. These four
“indeterminate Rishonim” are Tosafot, Rabbeinu Bachye, Ibn Ezra and Radak.
The premier five sections of this essay (A-E) will explore the position of Rashi
(one of the “wild card Rishonim”) [and how it interfaces with the Acharon R. Tzvi
Ashkenazi, Teshuvot Chakham Tzvi no. 77] regarding the status of a breathless heartbeat.

A. THE STATUS OF A BREATHLESS HEARTBEAT I:


CHAKHAM TZVI IN ITS TOTALITY

In adjudicating the kashrut of an ostensibly heartless chicken, R. Tzvi Ashkenazi,


Teshuvot Chakham Tzvi no. 77, declares that no creature can possibly survive without a
heart. Even respiration – which the Gemara, Yoma 85a, identifies as the primary
manifestation of life – depends upon the heart and is designed for the purpose of the
heart. Yet, as R. Daniel Reifman observes, the totality of Chakham Tzvi’s ruling does not
address the bioethical question of whether or not a breathless heartbeat constitutes a sign
of life. Chakham Tzvi’s ruling in its totality is that a creature cannot live without a heart;
but that is not necessarily the same as concluding that a creature can live with only a
heart. Thus, the totality of Chakham Tzvi’s ruling does not address the question of
whether one can live with only cardiac activity and without the capacity to breathe
[which is the predicament that describes a brain dead patient].7
Of parallel interest is the fact that R. Hershel Shachter, Be-Ikvei ha-Tzon no. 36,
cites Tosafot to Ketuvot 5b and Ritva to Shabbat 107a as establishing that the soul of a
creature resides in its blood (as reflected in Deut. 12:23), which explains why puncturing
a capillary constitutes a biblical desecration of the Sabbath. However, as a rejoinder to R.
Schachter, R. Avraham Steinberg remonstrates that Deut. 12:23 does not necessarily
prove, in and of itself, that a brain dead patient is alive because of his circulation.8 After

the principle sfek nefashot le-hakel, as per the Gemara, Shabbat 129a (viz. when there is a legitimate debate
among the poskim regarding a matter of saving a life, we are authorized to follow the opinion that says to
desecrate the Sabbath in order to rescue the patient). See infra, notes 176-177a, 240.
7
R. Daniel Reifman, “Ancient Sources, Modern Problems: A Methodological Analysis of Rashi’s Position
on Brainstem Death,” Tradition 45:4 (Winter 2012), p. 22.
Thus, R. J. David Bleich, Be-Netivot ha-Halakhah III (KTAV Publishing, 2000), p. 134, errs (be-
mechilat Kevod Torato) when he claims that Ibn Ezra [to Genesis 2:7], Kuzari, and Sha‘ar ha-Shamayim as
cited by Chakham Tzvi classify cardiac activity as a sign of life. Actually, those commentaries – as cited by
Chakham Tzvi in its totality – only establish that respiration is dependent upon cardiac activity, but never
address the question of whether a breathless heartbeat is itself a sign of life. [For an analysis of two
separately other comments of Ibn Ezra on the status of a breathless heartbeat (viz. Ibn Ezra on Exodus
23:24 and Ecclesiastes 1:16), see infra, Section L.] This can be cited as a legitimate source of confusion in
the brain death debate.
8
R. Avraham Steinberg, Encyclopedia Hilkhatit Refu’it VI (Jerusalem, 5759), pp. 40-41, footnote 90.
Cf. R. Nathan Gestetner, Teshuvot Lehorot Natan XV, no. 82, who – without citing either R.
Schachter or R. Steinberg – advances the identical claim as R. Schachter. Evidently, R. Gestetner (be-
mechilat Kevod Torato) is refuted by R. Steinberg’s cogent remonstration, just like R. Schachter (be-
mechilat Kevod Torato).

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all, what Deut. 12:23 may mean is that, when a person is breathing, the oxygen
molecules attached to the haemoglobin in his erythrocytes carry the soul. However,
without breathing, it is not clear from Deut. 12:23 whether or not there is any soul carried
in the blood.9
Similarly, the Gemara, Gittin 70b, which speaks of a person being alive even after
the severance of his trachea, does not necessarily prove that a breathless heartbeat
constitutes a sign of life. Perhaps the Gemara speaks of a person who can actually breathe
through the broken wall of the trachea (much like the case of a tracheotomy executed by
an emergency room physician), assuming the person’s respiratory muscles continue to
function.10 Likewise, the Gemara, Chullin 42a, which describes an animal with a
perforated trachea as being a treifah [as distinct from a neveilah], may be speaking of a
creature which still breathes autonomously.11
Similarly, the fact that a polio patient with total respiratory paralysis can still be
conscious while completely dependent on an “iron lung” for respiration does not
necessarily prove that a breathless heartbeat is a sign of life. Consciousness itself (as
9
Indeed, since it is cardiac activity which enables circulation of blood, the negation of the proof from the
totality of the Chakham Tzvi [articulated by R. Reifman, referenced supra, note 7] and the negation of the
proof of R. Hershel Schachter from Deut. 12:23 [articulated by R. Steinberg, referenced supra, note 8] are
physiologically one and the same. Appropriately so, R. Yosef Shaul Nathanson, Teshuvot Sho’el u-Meshiv
Tinyana IV, no. 108, addresses the Chakham Tzvi in its totality and Deut. 12:23 as a unified concept, as ll
be elaborated infra, Section C.
10
This point is cogently noted by R. Moshe David Tendler, symposium of Dec. 28, 1988, available at
<http://www.yutorah.com/sidebar/lecture.cfm/711847/rabbi-moshe-d-tendler/definition-of-death-i/>,
65:43-67:05 into the recording.
11
R. J. David Bleich, Contemporary Halakhic Problems IV (KTAV Publishing, 1995), pp. 340-341,
acknowledges that Gittin 70b [and potentially also Chullin 42a] describes a creature who is conscious, but
avers that consciousness is irrelevant in assigning with creature with life because “consciousness, while
assuredly absent in an organism meeting halakhic criteria of death, is nowhere posited as a condition
negating otherwise dispositive criteria of death.” Therefore, continues R. Bleich, it must be the breathless
heartbeat of Gittin 70b and Chullin 42a that assign the creature in each case with life.
Alas, R. Bleich (be-mechilat Kevod Torato) errs on two counts: (a) As observed by R. Tendler
(cited supra, note 10), the creature in Gittin 70b may well be breathing through the equivalent of a
medically induced tracheotomy [and the same can be transposed to Chullin 42a]; (b) Even if breathing
would actually have ceased, consciousness itself would endow the creature with life, based on the Sheetah
Mekubetzet to Menachot 37a cited in the next paragraph of the main text adorned by the present footnote.
[This can be cited as a legitimate source of confusion in the brain death debate.]
Additionally, regarding Gittin 70b, both R. Tendler [part 2 of symposium of Dec. 28, 1988,
available at
<http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II>,
68:50-70:42 into the recording] and R. Daniel Reifman [“Rabbi Moshe Feinstein on Brainstem Death: A
Reassessment” (published in Halakhic Realities: Collected Essays on Brain Death, R. Zev Farber, ed.,
Maggid Books, 2015), footnote 27 of that chapter by R. Reifman] remonstrate that this may in fact be the
message of that Gemara: to establish that consciousness is itself an independent sign of life. [I.e. R. Tendler
and R. Reifman are essentially countering that Gittn 70b bespeaks the same message that can be deduced
from Sheetah Mekubetzet.]
Finally, as we will see infra, Section J, Tiferet Yisrael to Ohalot 1:6 appears to interpret the Sifrei
to Numbers 19:13 as recognizing consciousness as a sign of life [thus reinforcing the legitimacy of the
inference(s) drawn from Sheetah Mekubetzet to Menachot 37a and/or the Gemara, Gittin 70a that
consciousness be considered an inherent sign of lfie.]

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distinct from the breathless heartbeat) may be the physiological manifestation that
endows the polio patient with life, based on the Midrash cited by Tosafot to Menachot
37a that is completed by Sheetah Mekubetzet, §18. The Midrash establishes that a
dicephaloid whose two heads share the same consciousness is legally treated as a single
human being, whereas a dicephaloid whose two heads each exhibit independent
consciousness is legally treated as two human beings.12 Accordingly, if consciousness
can determine the difference between whether a creature constitutes one human being or
two human beings, it seems entirely reasonable to assume that consciousness itself can
determine whether a polio patient is alive or dead.13
Admittedly, the foregoing analysis of the polio patient leads to the objection of R.
Mordechai Willig that such a definition of death “demands a compound definition,
involving two totally unrelated conditions,” 14 viz. irreversible respiratory arrest (based
on Yoma 85a) and irreversible unconsciousness (based on Sheetah Mekubetzet to
Menachot 37a). Nevertheless, a solution to R. Willig’s objection has been provided by R.
Dov Linzer, who argues that since the brain stem – which controls breathing – is
structurally part of the same organ that contains the cerebrum – which controls
consciousness, therefore a definition of death which is based on the compound conditions
of irreversible apnea and irreversible unconsciousness is hypothetically possible.15 In
other words, contra R. Willig, irreversible respiratory arrest and irreversible
unconsciousness are not necessarily “two totally unrelated conditions.” 16

12
See the discussion in R. J. David Bleich, Bioethical Dilemmas I (KTAV Publishing, 1998), pp. 286-291;
idem, Be-Netivot ha-Halakhah III, pp. 65-67; and idem, Bioethical Dilemmas II (Targum Press, 2006), p.
280.
13
The credit for this discovery goes to Dr. Noam Stadlan, “Is the Concept of Vital Motion a Halakhic
Definition of Death?”, Ḥakirah Vol. 18 (Winter 2014), p. 103. A second argument of Dr. Stadlan that is
inherent in the same article passage will be acknowledged infra, Section U.
14
Cited in the 5770 RCA Vaad Halacha study, p. 44.
15
R. Dov Linzer, “Brain Death or Cardiocirculatory Death?”, published in Halakhic Realities: Collected
Essays on Brain Death (R. Zev Farber, ed., Maggid Books, 2015), p. 178.
16
This deflection of R. Willig’s objection assumes that the modern scientific realization that the brainstem
controls breathing was known to the Sages of the Talmud, and therefore it would be possible for the Sages
of the Talmud to contemplate a definition of death that is predicated on this information.
Actually, R. Hershel Schachter, Be-Ikvei ha-Tzon no. 36 [who concurs with R. Willig’s
methodology] anticipates this assumption [of R. Linzer] and attacks it, citing Chazon Ish, Yoreh De‘ah 5:3
to the effect that [based on the Gemara, Avodah Zarah 9a] all the scientific realities which bear practical
ramifications for Torah law (such as the pathological conditions that render an animal treifah) are
determined based on the scientific realities which existed during the third and fourth millennia of world
history (which end no later than the Talmudic era). Hence, R. Schachter refuses to allow the more recent
discovery that the brainstem controls breathing to impact on the definition of death.
However, this student would counter that Ramban, in the introduction to his commentary on
Pentateuch, professes [based on the Gemara, Rosh ha-Shanah 21b and Menachot 29b] that all the natural
sciences are contained within the Torah and were so revealed to Mosheh Rabbeinu, being further
transmitted to Rabbi Akiva. Indeed, as catalogued by Dr. John D. Loike and R. Moshe D. Tendler,
“Tampering with the Genetic Code of Life,” Ḥakirah Vol. 18 (Winter 2014), pp. 48-49, similar sentiments
are expressed by Midrash Tehillim 19; Kreti u-Fleti, Yoreh De‘ah 40; and Arukh ha-Shulchan, Even ha-
Ezer 13, §30. [See, also, Arukh ha-Shulchan in his introduction, who makes the identical statement.] This is
also the position of Vilna Ga’on, as recorded in Haggadat ha-Gra, introduction to Song of Songs. [See also

5
Indeed, an approach that remarkably resembles the solution of R. Linzer is
advanced by R. Yehudah Aryeh of Modena, Amar ha-Boneh commentary to Ein Ya‘akov,
Yoma 85a. Emphasizing that the Sages of the Talmud were fully proficient in all
scientific disciplines, Amar ha-Boneh submits that both opinions recorded by the Gemara
– regarding how far a rescuer must check an upside-down avalanche victim – reflect an
evaluation of the brain. The view that only mandates checking to the heart believes that
with the cessation of perceived cardiac function, the brain can be assumed to have died.
The countervailing view, which requires checking further to the nose, believes that
sometimes a negative heart examination may be inconclusive, and life at the brain may
still exist as reflected in respiration. Accordingly, one may infer from Amar ha-Boneh
that he would concur with R. Linzer that irreversible respiratory arrest and irreversible
unconsciousness are not necessarily “two totally unrelated conditions,” since the ultimate
goal of Yoma 85a is to gauge brain function. 17
In summary, then, Chakham Tzvi in its totality does not necessarily prove that a
breathless heartbeat is a sign of life.

B. THE STATUS OF A BREATHLESS HEARTBEART II:


CHAKHAM TZVI IN ITS PARTICULARITY

The previous section demonstrated that Chakham Tzvi in its totality (viz. to rule
that it is impossible for a chicken to live without a heart) does not necessarily prove that a
breathless heartbeat is a sign of life.

Amar ha-Boneh, cited in the next paragraph of the main text.] Thus, it is entirely plausible that the Sages of
the Talmud indeed knew that the brainstem controls breathing, and – as such – R. Linzer’s deflection [to R.
Willig’s objection] remains valid.
To that effect, the Chazon Ish [cited by R. Schachter] may be understood as referring to situations
in which the present day scientific reality has demonstrably evolved since the scientific reality of the days
of the Talmud. Under such circumstances, halakhic determinations must follow the scientific reality of the
days of the Talmud. But regarding the brainstem controlling breathing, there is no evidence that any
evolution has occurred since the days of the Talmud. [Indeed, R. Moshe Feinstein, Iggerot Mosheh, Yoreh
De‘ah II, no. 146, first paragraph, explicitly writes that the functions of the human brain have not evolved
since the days of the Talmud.] Thus, R. Linzer is not contradicted by Chazon Ish.
[Ironically, in context, R. Feinstein is negating neurological criteria of death, thereby ostensibly
supporting R. Willig and R. Schachter’s practical conclusion (even if at odds with their methodology in
arriving at that same conclusion). However, there is more than one way to understand that passage in
Iggerot Mosheh, as will be explained infra, note 36. More fundamentally, the point here (in Section A of
the essay) is simply to borrow R. Feinstein’s anthropological thesis that the human brain has not evolved
since the days of the Talmud, and to apply it as it relates to Chakham Tzvi in its totality. We cannot draw
any practical conclusions just yet, as there are other sources (beyond Chakham Tzvi in its entirety) which
must be explored in future sections.]
17
Amar ha-Boneh is correctly cited in the context of the brain death debate by Dr. Fred Rosner and R.
Moshe D. Tendler, “Definition of Death in Judaism,” Journal of Halachah and Contemporary Society, No.
XVII (Spring, 1989), p. 28. However, Dr. Rosner and R. Tendler (be-mechilat Kevod Toratam) err by
identifying Amar ha-Boneh as a fifteenth century scholar [which would ostensibly place him in the period
of the Rishonim]. Actually, Amar ha-Boneh was born in 1571 and was ordained in 1609 [which would
therefore place him in the period of the Acharonim.] See Mark R. Cohen, The Autobiography of a
Seventeenth-Century Venetian Rabbi (Princeton University Press, 1988). See also infra, note 20.

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On the other hand, there are particular comments within the responsum of
Chakham Tzvi which seem to independently focus on heartbeat as an intrinsic sign of life,
as follows:18

(a) In the paragraph beginning with the words u-mah she-katav od ve-ulai
yomar ha-omer, he writes “After we know that the mishkan ha-chiyut
(the dwelling place of life) is in the heart according to everyone, as we
are about to explain, and that the limbs cannot live and be sustained
without the life force and the nefesh ha-chayim (soul of life) which
dwells in the heart, therefore she [-the hypothetical genuinely heartless
chicken-] is a carrion.” Seemingly, these remarks of Chakham Tzvi
indicate that life itself is synonymous with the heart.
(b) In the paragraph that begins with the words ve-ha-Rav ha-()-loki, he
says that it is “well publicized to all the people of the world that the
heart is the mishkan le-nefesh ha-chiyut (the residence for the soul of
the life) and is the last organ to die”. The Zohar to Parashat Nasso is
cited as confirming the latter point.
(c) In the paragraph that begins with the words sof davar divrei ha-Zohar,
he says that “the life of every creature is in its heart”.
(d) In the paragraph that begins with the words mah she-hevi mi-Sefer
Sha‘arei Shamayim, he says that “even the one who holds that
[corporal] motion depends upon the brain agrees that life does not
depend upon anything other than the heart”.
(e) In the paragraph beginning with the words u-mah she-katav od be-
havi’o hahi de-ferek batra de-Yoma, he says “behold Rashi of blessed
memory has agreed to our words she-ha-neshamah mishkanah ba-lev (-
that as for the soul, her residence is in the heart)”.
(f) In the paragraph beginning with the word ve-ha-Kuzari, he approvingly
quotes R. Saadiah Ga’on to the effect that ha-nefesh shokhenet bo ba-
lev (the soul dwells in him in the heart).
(g) In the paragraph beginning with the words u-ve-sefer Tzedah la-
Derekh, he quotes Zohar Chadash as submitting that ha-nefesh
mekomah ba-lev (-as for the soul, her venue is in the heart).

While most of those particular comments can be dismissed as poetic rhetoric,19


the particular comment itemized as (b) cannot be so dismissed, since the Zohar is clearly
cited approvingly as identifying the heart to be the final organ that dies. This is not mere

18
In the following analysis, paragraphs are cited from the Chakham Tzvi based on the newly paginated
Mif’al Chakham Tzvi edition published in 5758. [In the Gottesman library of Yeshiva University, it is
available under the call heading REF BM 522.23.S533. The gracious assistance of the library staff in
procuring a number of the references involved in this essay is hereby most gratefully acknowledged.]
19
I.e., what Chakham Tzvi really means to communicate in most of those comments is that “life cannot
continue without a heart” (reflecting the totality of his responsum, as analyzed in Section A of this essay),
but not necessarily that life can proceed with only a heart (which is the focus of the brain death debate). [I
am grateful to R. Daniel Reifman for bringing this insight to my attention.]

7
poetic rhetoric; this is an absolute physiological classification. Accordingly, this
particular comment of Chakham Tzvi demonstrates that [not only does Chakham Tzvi
consider life to be impossible without cardiac activity (as discussed above, Section A),
but] Chakham Tzvi also regards life to continue even if there is no physiological process
occurring in a patient other than cardiac activity. I.e., for Chakham Tzvi in its
particularity, Zohar proves that a breathless heartbeat is a sign of life.
In a parallel manner, the particular comment of Chakham Tzvi itemized as (e)
cannot be dismissed, because it identifies Rashi as a source that a breathless heartbeat is a
sign of life. Namely, Chakham Tzvi approvingly cites Rashi to Yoma 85a, s.v. hakhi
garsinan amar Rav Papa who explains that the reason a rescuer must check an upside-
down avalanche victim to the nose – going beyond the heart – is because he might fail to
detect life at the heart. In the precise words of Rashi:

“One sage holds that in his heart we can discern whether he has vitality,
since his soul beats there; and one sage holds that we must check [even
further] until his nose because sometimes life is not detected at the heart,
but is detected at the nose.”

The implication of this Rashi is that sometimes life is not detected at the heart,
but other times life is indeed detected at the heart, in which case the upside-down
avalanche victim is considered to be alive. I.e., when cardiac activity is detected, this
independently serves as a sign of life, and it is not necessary to check the nose altogether.
In effect, then, Rashi elucidates Yoma 85a in a manner that is the polar opposite of
that of Amar ha-Boneh [cited above, Section A]. Whereas Amar ha-Boneh considers both
opinions in Yoma 85a to be measuring brain function, Rashi considers both opinions in
Yoma 85a to be measuring cardiac function.20

20
R. Bleich, Contemporary Halakhic Problems IV, pp. 319-320, favours Rashi over Amar ha-Boneh based
on two separate arguments, as follows.
(1) R. Bleich speculates that there may not be any practical discrepancy between Amar ha-Boneh’s
elucidation and the elucidation of Rashi. Namely, since neurologists have discovered ongoing
hypothalamic-pituitary function in brain dead patients, therefore perhaps we can conjecture that cardiac
activity ipso facto means ongoing brain activity.
At first glance, it seems to this student that the relevance of R. Bleich’s argument depends on the
dispute among the poskim – reviewed by Shalom C. Spira and Mark A. Wainberg, “Criminalization of HIV
Transmission,” Ḥakirah Vol. 16 (Winter 2013) – whether injection of a chemical into the bloodstream is
considered proximate cause. If it is considered proximate cause, then indeed the hypothalamic-pituitary
hormonal secretion might be argued to represent a case of corporeal motion, and hence might be argued to
represent brain activity. (Viz., when the brain secretes a hormone into the bloodstream, this means that the
brain is actively moving the body.) On the other hand, if it is not considered proximate cause, then
hypothalamic-pituitary function would be irrelevant.
However, upon further consideration, in light of what will be discovered in the next paragraph of
the main text, viz. that Rashi in Chullin 21a accepts the concept of physiological decapitation,
hypothalamic-pituitary function might not necessarily be relevant altogether for Rashi, irrespective of
Rashi’s position on the question of proximate cause. [For further analysis, see infra, Section E.]
(2) R. Bleich posits that “despite the inclusion of his aggadic commentary in standard editions of
Ein Ya‘akov, the views of R. Yehudah Aryeh of Modena are not generally cited in the annals of halakhic
scholarship.”
Indeed, R. Bleich is correct that a debate exists among historians whether Amar ha-Boneh was
actually a posek. Some have called into question Amar ha-Boneh’s status because (inter alia) he enjoyed

8
Alas, what Chakham Tzvi neglects to mention is that Rashi to Chullin 21a, s.v. ve-
im tomar, recognizes the concept of physiological decapitation, viz. that a patient is
considered legally dead in the complete absence of neurological activity, as we will
elaborate later in the present essay.21 Thus, there is actually a contradiction between
Rashi to Yoma 85a [that is highlighted by Chakham Tzvi] and Rashi to Chullin 21a [that
is apparently overlooked by Chakham Tzvi].22
Following in the footsteps of Chakham Tzvi, it appears that R. Yosef Shaul
Nathanson, Divrei Sha’ul, Yoreh De‘ah 394:3 likewise overlooks Rashi to Chullin 21a.23
Namely, in explaining why we are we willing to bury a patient presumed dead even
before the patient’s body decomposes, R. Nathanson elucidates Yoma 85a to require
cardiac arrest as proof of death, whereupon we can be certain in good conscience that we
have not misdiagnosed death. R. Nathanson then continues by citing Chakham Tzvi to
this effect, and – while R. Nathanson does not explicitly identify Rashi by name – R.
Nathanson is presumably following Rashi’s approach to Yoma 85a. [At no time, however,
does R. Nathanson mention the contradictory Rashi to Chullin 21a.]
The same Divrei Sha’ul also references the previous responsum on the definition
of death formulated by R. Moshe Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah no. 338.
Highlighting the relationship between these responsa of Chatam Sofer and Divrei Sha’ul,
R. Daniel Reifman comments in a recent Tradition article as follows:

gambling as a hobby, because he once permitted a musical performance in the synagogue on a Sabbath that
coincided with the 15th of Av, and because he permitted asking a Noahide to carry an hourglass through a
karmelit on the Sabbath on the (rather bizarre) claim that a rabbi’s sermon requires a clock in order to
ensure pedagogical effectiveness. [See Mark R. Cohen, The Autobiography of a Seventeenth-Century
Venetian Rabbi (Princeton University Press, 1988), who defends Amar ha-Boneh, but who acknowledges a
contrary opinion. See, also, R. Bleich, Contemporary Halakhic Problems VII (Maggid Books, 2016), p.
191, who critiques the reported claim that R. Yehudah Aryeh of Modena entered a place of avodah zarah,
but further avers that even if such a reported claim would be historically accurate, R. Yehudah Aryeh of
Modena was not a personage worthy of emulation.]
However, as we will see in the next paragraph of the main text, whether or not Amar ha-Boneh
was a halakhic authority, Rashi himself in his commentary to Chullin 21a does accept the notion of
physiological decapitation. [For further analysis, see infra, Section E.]
21
Infra, Section O.
22
Thus, the argument of R. Bleich, Be-Netivot ha-Halakhah III, p. 149 that since Beit Yosef, Even ha-Ezer
157, s.v. u-mah she-katav Rabbeinu forbids being more lenient than Rashi “whose trustworthy waters all of
Israel drinks” on a question of prohibited remarriage, therefore we must likewise be concerned for the
position of Rashi to consider cardiac activity as a sign of life, is (be-mechilat Kevod Torato) not dispositive.
After all, as we have now seen, Rashi’s commentaries on Yoma 85a vs. Chullin 21a seem to contradict one
another whether a breathless heartbeat is a sign of life.
23
R. Bleich, Contemporary Halakhic Problems IV, p. 340, and idem, Be-Netivot ha-Halakhah III, p. 135,
misreferences this source as Yad Sha’ul [a separate book by R. Nathanson but which does not deal with this
issue]. Furthermore, R. Bleich’s misreference (be-mechilat Kevod Torato) is erroneously copied by R.
Shabtai, Defining the Moment, p. 156. This misreference – compounding the oversight of R. Nathanson
himself – can be cited as one of the legitimate sources of confusion in the brain death debate. [Cf. R.
Eliezer Yehudah Waldenberg, Teshuvot Tzitz Eliezer IX, no. 46; and R. Daniel Reifman, “Ancient Sources,
Modern Problems: A Methodological Analysis of the Hatam Sofer’s Position on Brainstem Death”
(Tradition 46:3, Spring 2013), footnote 9, who correctly reference Divrei Sha’ul.]

9
“R. Nathanson does mention heartbeat as a sign of life, but not in the
context of his citation of the Hatam Sofer. Moreover, he contradicts the
Hatam Sofer (without saying so) in asserting that heartbeat is always
coterminous with respiration, and concludes that one need verify only
cessation of respiration in order to declare an individual to be dead.” 24

In response to the above comment of R. Reifman, this student will now


remonstrate that R. Reifman’s opening sentence is true but nevertheless co-exists in
harmony with the reality that R. Nathanson nevertheless identifies a breathless heartbeat
to be a sign of life. Specifically, Divrei Sha’ul writes:

“In any event, it appears in my opinion to be clear as the sun that so long
as we see that he is dead, and he has no breathing of the nose, and he has
no pulsation on the heart – for this is the sign of vitality as clarified in
Yoma 85[a] – he is no longer alive, and he has the law of a corpse for
every matter.”25

Presumably, this means that Divrei Sha’ul endorses Rashi to Yoma 85a [while
overlooking the contradictory Rashi to Chullin 21a]. Divrei Sha’ul then immediately
continues along the same theme:

“Afterward, I remembered that in the responsa of my master the Chakham


Tzvi of blessed memory, no. 77, he discusses this at length. See there that
they asked him on that which he concluded that it is impossible to live
without a heart. And they asked him from that [which Yoma 85a teaches]
that one checks [the avalanche victim] until his nose; behold vitality
[seemingly] depends [only] upon respiration [contrary to Chakham Tzvi]!
And he answered that both [respiration and heartbeat] are the same,
because there is no respiration except when there is vitality in the heart,
because from [the heart] and for [the heart’s] sake is the respiration. See
there that he brings from all the books of the researchers and mystics who
agree on this, and they become [coherently] unified. And according to this,
so long as we see that there is no respiration, and the physician testifies as
such, and perforce cardiac life stops, and whenever the heart dies it is
impossible to live without the heart, and in the absence of the heart, life
will disappear, as my master the Chakham Tzvi of blessed memory
discusses there at length – and even those who dispute Chakham Tzvi will
concede to this, because they only spoke whether it is possible to live
without a [normally shaped anatomical] heart altogether, but once
[whatever shaped] heart [the creature possesses] dies, it is obvious that it
is impossible to live [even according to those who dispute Chakham Tzvi]

24
R. Daniel Reifman, “Ancient Sources, Modern Problems: A Methodological Analysis of the Hatam
Sofer’s Position on Brainstem Death” (Tradition 46:3, Spring 2013), footnote 9.
25
Divrei Sha’ul on Shulchan Arukh Yoreh De‘ah 394:3, p. 72b, left-hand column, line 39.

10
– and whenever there is no respiration, perforce the heart dies. And
regarding the episode of Avel Rabbati [where death was misdiagnosed],
perforce it was in a milieu where there were no human beings [as
observers] who understood the concept of death properly, but in our era,
where experimentation has brought to light medical science – [the latter
which] has disseminated – and in any event they can [accurately] judge
whether the sensation of respiration stops from him – for this is a
recognizable matter – it is obvious that there is a prohibition [to delay
burial].”

As for R. Reifman’s second sentence in his aforementioned comment [viz. that R.


Nathanson “contradicts the Hatam Sofer (without saying so) in asserting that heartbeat is
always coterminous with respiration, and concludes that one need verify only cessation of
respiration in order to declare an individual to be dead.”], this is not necessarily an
accurate representation of Divrei Sha’ul, on account of the following considerations:

(a) R. Nathanson does not necessarily write that heartbeat is always coterminous
with respiration. Rather, R. Nathanson writes that when respiration ceases, then “perforce
cardiac life stops (batel)... perforce the heart dies (met),” but not necessarily that cardiac
activity is already stopped (kvar batel) and not necessarily that the heart is already dead
(kvar met). “Stops” and “is already stopped” are potentially two separate concepts.
“Dies” and “is already dead” are potentially two separate concepts. Thus, Divrei Sha’ul
does not necessarily contradict Chatam Sofer.

(b) Insofar as R. Nathanson’s conclusion is concerned, his final paragraph reads


as follows:

“And behold regarding one who testifies [regarding a missing husband]


‘He died and I buried him,’ that he is believed [to allow the widow to
remarry], this seems difficult. Behold regarding an agunah we do not
follow the majority [to leniently allow the widow to remarry]. If so, why
should we rely [on the testimony] that this [missing husband] died? Maybe
he will arise in the future [due to misdiagnosis of death]! And we are
required to answer that this [danger of misdiagnosis of death] is
[dismissed as] a [legally insignificant] minority within a minority. And
behold for piku’ach nefesh we also rely on respiration of the nose, as I
wrote above.”26

Thus, R. Nathanson’s conclusion is to rely on what he wrote above regarding


respiratory arrest as being the sign of death in piku’ach nefesh. And what he actually
wrote above is that respiratory activity is a reliable measure of cardiac activity.
In summary, Rashi to Yoma 85a identifies a breathless heartbeat as a sign of life,
although this is contradicted by Rashi to Chullin 21a. Chakham Tzvi in its particularity
concurs with Rashi to Yoma 85a, also citing Zohar to the same effect, while overlooking

26
Loc. cit., p. 73a, left-hand column, line 15.

11
Rashi to Chullin 21a. Divrei Sha’ul appears to parrot the position of Chakham Tzvi, again
overlooking Rashi to Chullin 21a.

C. THE STATUS OF A BREATHLESS HEARTBEAT III:


CHAKHAM TZVI IN ITS TOTALITY VS. CHAKHAM
TZVI IN ITS PARTICULARITY

In order to best appreciate the key distinction between Chakham Tzvi in its totality
(described above in Section A) vs. Chakham Tzvi in its particularity (described above in
Section B), it is instructive to consider the responsum of R. Yosef Shaul Nathanson,
Teshuvot Sho’el u-Meshiv Tinyana IV, no. 108. R. Nathanson surveys conflicting proofs
as to whether Chakham Tzvi’s thesis that a creature cannot live without a heart is correct.
One of these proofs is the Gemara, Sotah 5a, which cites Isaiah 57:20 (“and the wicked
are jettisoned like the sea”) to inveigh against human haughtiness. The Gemara reasons
that “if the sea, which is composed of numerous revi‘it volumes of liquid, can be
overturned by a simple wind, then how much more so can a human being, who is
composed of only one revi‘it volume of liquid [be overturned by a simple wind.]”
Tosafot, citing Rabbeinu Chananel, elucidate the Gemara as referring to the revi‘it of
blood in the human heart. R. Nathanson marshals this Tosafot as a proof to the
correctness of Chakham Tzvi’s thesis, since the blood in the heart represents cardiac
function, pursuant to the concept “for the blood is the soul” bespoken by Deut. 12:23.
What Sho’el u-Meshiv is essentially communicating, then, is that Tosafot to Sotah
5a demonstrate the humbling fragility and vulnerability of human life. A human cannot
be alive unless his/her heart functions. The cardiac function itself is quite puny; only a
revi‘it of blood is compartmentalized by the heart chamber(s) at any given time.27 Ergo, a
human should be sobered by the realization that if the sea – with its gargantuan liquid
volume – can be overturned by a simple wind, then all the more so can a human life be
overturned. This is a support to Chakham Tzvi’s ruling in its totality, viz. that it is
impossible for a creature to survive without a heart.
By contradistinction, the identical R. Yosef Shaul Nathanson, writing in a
separate book entitled Divrei Sha’ul, Yoreh De‘ah 394:3 [–already analyzed above in
Section B], addresses the precisely opposite perspective, viz. the inspiring resilience and
tenacity of human life that emerges from Chakham Tzvi [-viz., Chakham Tzvi in its
particularity.] Divrei Sha’ul explains that we cannot declare a patient dead until his heart
has stopped. This is not supported by Tosafot to Sotah 5a. Indeed, this is not supported by
the majority of the sources cited in Chakham Tzvi’s original responsum, either. Rather,
the concept that human life resiliently endures so long as cardiac activity continues is

27
Usually, throughout the Oral Torah, a revi‘it refers to a volume defined as 1.5 chicken eggs, also
equivalent to 10.8 cubic thumb widths, as per the Gemara, Pesachim 109a. If that volumetric definition
would be applied to the present context, it would indeed be physiologically true, since cardiologists
currently estimate that the end-diastolic volume of the right ventricle is 144 ml (plus or minus 23 ml),
whereas that of the left ventricle is 142 ml (plus or minus 21 ml). See Wikipedia, s.v. “end-diastolic
volume.” In actuality, Tosafot to Sotah 5a (especially as elaborated by R. Akiva Eger’s Gilyon ha-Shas
supercommentary) appear to understand the revi‘it in this particular context as a measure of mass [rather
than volume]. Nevertheless, assuming a constant density to blood [-density being defined as mass per
volume], this should not cause any appreciable difference.

12
supported by Rashi to Yoma 85a [as well as by Zohar], and it is presumably to this Rashi
that Divrei Sha’ul would be referring, all the while overlooking Rashi to Chullin 21a.28

28
R. Avraham Steinberg, “Kvi‘at Rega ha-Mavet,” Noam Vol. 19 (5737), p. 223, discovers a third
contribution of R. Yosef Shaul Nathanson on the halakhic significance of cardiac activity, and so it would
be presently illuminating to calculate where on the “Chakham Tzvi in its totality vs. Chakham Tzvi in its
particularity” axis this third contribution of R. Nathanson resides.
Specifically, as referenced by R. Steinberg, R. Yosef Shaul Nathanson, Teshuvot Sho’el u-Meshiv
Telita’ah I, no. 100 [responding to a fact pattern raised by R. Chaim Halberstam, Teshuvot Divrei Chaim II,
Even ha-Ezer no. 64] addresses an agunah whose long-missing husband was last seen mortally injured. A
rescuer who tried to save the husband now testifies that he found no life at the heart, but did not have the
opportunity to examine the nose [as would be the algorithm required by Yoma 85a] before he had to flee the
scene to save his own life [as per the Gemara, Bava Metz‘ia 62a, that a rescuer has a mitzvah to save
himself before saving anybody else]. The mortally injured husband has since disappeared without a trace,
and so the question is now being posed whether the rescuer’s testimony is sufficient to permit the agunah
to remarry. Sho’el u-Meshiv responds that he is inclined to be lenient to allow the agunah to remarry, on the
grounds that it is highly unlikely that the husband could have long survived without discernible cardiac
activity.
[N.B. Sho’el u-Meshiv cautions not to rely on his lenient approach alone, until it will be supported
by a great scholar, and until a Beth Din of three judges will formalize the ruling. Indeed, Divrei Chaim
himself was previously inclined to be lenient, and subsequently R. Meir Arik, Teshuvot Imrei Yosher II, no.
2, also concurs to be lenient, albeit without mentioning Sho’el u-Meshiv. Addressing a separate case of the
identical nature, R. Mordechai Leib Winkler, Teshuvot Levushei Mordekhai, Mahadura Tinyana, Even ha-
Ezer no. 124 is likewise lenient. Beyond these sources cited by R. Steinberg, it is noteworthy that 25 years
after R. Steinberg published his article, a new edition of Teshuvot Divrei Chaim would be released by
Bobover Yeshiva Bnei-Zion (Brooklyn, 5762). The editor of the latter edition points in a footnote to two
other Acharonim who adjudicated the same fact pattern as Divrei Chaim: R. Asher Anshel Jungreis,
Teshuvot Menuchat Asher II, no. 17; and R. Avraham Shag, Teshuvot Ohel Avraham nos. 55-56. Menuchat
Asher is inclined to be lenient although only if two other poskim will concur. By contradistinction, Ohel
Avraham refuses to issue a verdict on the matter, instead referring the question “to the sages of the
generation with a heart and knowledge more vast than mine.”]
In effect, this latest responsum of Sho’el u-Meshiv is a hybrid between R. Nathanson’s other two
contributions on the topic of cardiac activity, a hybrid that is unique to the principles that govern
adjudication of an agunah. On the one hand, this latest Sho’el u-Meshiv (Telita’ah) illustrates the humbling
fragility and vulnerability of human life (analogous to the previous Sho’el u-Meshiv Tinyana IV, no. 108),
arguing that a husband cannot live [or at least cannot live very long] without detectable cardiac activity. On
the other hand, this latest Sho’el u-Meshiv (Telita’ah) focuses on Yoma 85a (analogous to Divrei Sha’ul),
and – consistent with Yoma 85a – is not declaring the husband to be instantly dead as soon as he is found to
be without detectable cardiac activity. Rather, the conclusion that is being drawn is that the possibility of
long-term survival is sufficiently small to satisfy the unique standards of evidence required by the Oral
Torah in the case of an agunah whose husband has long disappeared and is presumed dead.
[Upon further reflection, the ruling of Sho’el u-Meshiv Telita’ah may arguably emerge directly
from the Mishnah and Gemara, Yevamot 120a-b with their accompanying codification in Shulchan Arukh
Even ha-Ezer 17:30-31. Namely, the Mishnah rules that even if a long-missing husband was last witnessed
being hung for purposes of execution, then even if a wild animal was also witnessed devouring him as he
was being hung, we still cannot presume the husband is now dead to allow the widow to remarry. The
Gemara qualifies this stringent verdict by commenting that the Mishnah’s verdict is only true if the animal
was last seen devouring a part of the husband which would not cause mortal injury. However, if the animal
was last seen devouring a part of the husband that would cause mortal injury – which Shulchan Arukh
(based on Rambam, Hilkhot Geirushin 13:18) codifies to be: the brain, the heart or the intestines – then we
can indeed presume the long-missing husband is now dead to allow the widow to remarry. The Gemara
then rules that if a long-missing husband’s trachea and esophagus were last seen severed, we can likewise
presume that the husband is now dead to allow the widow to remarry. The Gemara continues that severance
of the trachea and esophagus does not constitute death in and of itself; on the contrary, the husband is still
halakhically alive and can execute a get at that point. Rather, concludes the Gemara, death in such a

13
D. THE STATUS OF A BREATHLESS HEARTBEAT IV:
IGGEROT MOSHEH ON RASHI

As illustrated in the previous two sections, Rashi to Yoma 85a identifies a


breathless heartbeat as a sign of life, with both Chakham Tzvi in its particularity and
Divrei Sha’ul apparently concurring, and both likewise overlooking the contradictory
Rashi to Chullin 21a. The following section will now address how R. Moshe Feinstein,
Iggerot Mosheh, Yoreh De‘ah II, no. 146, elucidates the same Rashi.
Remarkably, R. Feinstein never mentions Divrei Sha’ul in the course of this
responsum. Nevertheless, R. Feinstein – in this particular responsum – prima facie
appears to arrive at a (mis)understanding identical to that of Divrei Sha’ul.29 Namely, R.
Feinstein carefully analyzes the Gemara, Yoma 85a, acknowledging twelve times in his
responsum that it may well refer to the heart or the navel.30 Additionally, on a thirteenth

husband is sufficiently imminent that since the husband has long-disappeared, the fact that he was last
seen so mortally injured constitutes sufficient evidence to now allow the widow to remarry. Evidently,
then, this last comment of the Gemara would equally apply to the previous case – which Shulchan Arukh
applies to mortal injury to the heart – and would arguably justify the ruling of Sho’el u-Meshiv Telita’ah. If
so, then we can hypothesize that Sho’el u-Meshiv Telita’ah is not conceptually related to Chakham Tzvi
altogether – neither “Chakham Tzvi in its totality” nor “Chakham Tzvi in its particularity” – but is rather
based on Yevamot 120a-b. (However, this hypothesis is not obvious, since Sho’el u-Meshiv Telita’ah cites
Yoma 85a and not Yevamot 120a-b.)]
In conclusion, whereas Sho’el u-Meshiv Tinyana marshals Tosafot to Sotah 5a to support
“Chakham Tzvi in its totality,” and whereas Divrei Sha’ul follows Zohar as well as Rashi to Yoma 85a
[while overlooking Rashi to Chullin 21a] to articulate “Chakham Tzvi in its particularity,” Sho’el u-Meshiv
Telita’ah seems to be located somewhere in between on this axis [and arguably might be conceptually
unrelated to Chakham Tzvi altogether], in a hybridized argument appropriate for the standards of evidence
necessary to allow an agunah to presume that she is widowed.
29
The emphasis “in this particular responsum” (in the main text adorned by this footnote) is necessary,
because in a separate responsum (viz. Iggerot Mosheh, Yoreh De‘ah II, no. 174) R. Feinstein does
explicitly reference the concept of physiological decapitation that emerges from Chullin 21a, as will be
elaborated in the concluding portion of the main text of the present Section D.
30
The following are the twelve times that R. Feinstein offers this acknowledgement in his responsum:

1) P. 249, left-hand column, lines 4-5: “because we do not recgonize [a sign of life] well the heart and the
navel.”
2) P. 249, left-hand column, lines 9-10: “and also after there is no recognition [of a sign of life] in the
heartbeat and there is no recognition [of a sign of life] in the navel.”
3) P. 250, right-hand column, lines 10-11: “that one tanna holds [we check until] his nose and one tanna
holds we check until his heart or until his navel.”
4) P. 250, right-hand column, lines 17-18: “that the one who says [we check] until his heart or until his
navel...”
5) P. 250, left-hand column, lines 2-3: “that the one who says [to check] until his heart or until his navel...”
6) P. 250, left-hand column, lines 6-7: “and therefore also the sign that there is no heartbeat and also the
sign in the navel...”
7) P. 250, left-hand column, lines 11-12: “since the one who holds [to check] until his heart or until his
navel...”
8) P. 250, left-hand column, lines 14-15: “and if his textual reading would have been that the tanna kamma
says [to check] until his heart or until his navel...”

14
occasion, R. Feinstein specifically cites Rashi to Yoma 85a, acknowledging that this
Rashi is a potentially valid proof for [what R. Feinstein claims to be] Chakham Tzvi’s
opinion that a breathless heartbeat is a sign of life.31 Thus, it prima facie appears that R.
Feinstein shares Divrei Sha’ul’s (mis)understanding of Rashi, and – like Divrei Sha’ul –
R. Feinstein naively attributes the same (mis)understanding to Chakham Tzvi.
Further complicating matters, R. Feinstein offers his own (medically
contrafactual) alternative to Chakham Tzvi, claiming that it may actually be possible to
keep breathing even after total cardiac arrest.32 R. Feinstein explains that it is not the nose
which constitutes the source of life – for it is not even reckoned as one of the “evarim
she-ha-neshamah teluyah vahem” (limbs on which the soul depends33) – but rather the
brain and the heart which are the sources of life.34 35 A breathing nose is simply the last

9) P. 250, left-hand column, lines 21-22: “because they hold that [the fact] that there is no heartbeat heart or
that there is no sign in the navel...”
10) P. 250, left-hand column, lines 28-29: “even that which is there is no heartbeat heard or there is no sign
seen in the navel...”
11) P. 251, right-hand column, line 31: “the tanna kamma will not require checking more than until his
heart or until his navel...”
12) P. 251, final line of right-hand column – first line of left-hand column: “and therefore even according to
the view regarding rescuing an avalanche victim that we check until the heart or until the navel...”
31
R. Feinstein writes this on p. 249, lefthand column, lines 35-37, as follows:

“And this is the intention of Chakham Tzvi, and he brought Rashi as proof to his
[explanation/commentary], that vitality does not depend on the nose, but rather [the
reason we are directed to inspect the nose is because] of the diagnosis which is more
readily orchestrated at the nose than at the heart.”
32
In the paragraph s.v. aval barur u-fashut she-ein.
Actually, the way the responsum is worded, R. Feinstein regards his alternative approach to
Chakham Tzvi as being the more straightforward explanation to the Gemara in Yoma 85a. [Indeed, R.
Feinstein presents his alternative approach first, before that of Chakham Tzvi, which is delayed until the
following paragraph, s.v. ve-ulai mah she-hutzrakh ha-Chakham Tzvi. Regarding Chakham Tzvi`s
approach, R. Feinstein writes “although there is no compelling reason to say like this, it is possible that it is
so.”] Nevertheless, the sentence adorned by the present footnote calls R. Feinstein’s approach one of
“complicating matters,” due to the medically verifiable fact that it is impossible to breathe following
cardiac arrest (contra R. Feinstein). This can be cited as one of the legitimate sources of confusion in the
brain death debate.
For a suggested hypothesis why R. Feinstein (erroneously) imagined that a patient can breathe
following cardiac arrest, see Appendix A of this essay.
33
See Encyclopedia Talmudit, I, s.v. ever she-ha-neshamah teluyah vo.
34
Obviously, there is One and Only Prime Cause Who is the source of all life in the universe: Ha-Kadosh
Barukh Hu, Yishtabach Shemo. Thus, when R. Feinstein refers (le-havdil) to “sources of life,” he means the
optical illusion of sources of life according to the scientific principles of cause-and-effect that operate in the
universe, recognizing the ultimate reality (bespoken by Deut. 4:35) that “there is none other than Him,” the
One and Only Supreme Creator. Indeed, R. Shneur Zalman of Liadi’s work Tanya is devoted to elaborating
this self-evident truth. [For further discussion, see R. J. David Bleich, The Philosophical Quest: Of
Philosophy, Ethics, Law and Halakhah (Maggid Books, 2013), ch. 11.]
35
For a hypothesized itemization of several possible ways how R. Feinstein knows that the brain and the
heart are the sources of life, see Appendix B of this essay.

15
manifestation of heart and brain activity, even after total cardiac arrest. Besides the
medically contrafactual nature of R. Feinstein’s comment, his remark creates an
ambiguity of whether he assumes that breathing can continue even after (not only cardiac
arrest but also) physiological failure of the brain.36

36
Actually, earlier in the responsum (opening paragraph), R. Feinstein rejects pronouncements of death
based on brain criteria alone, remonstrating that the patient is still breathing, and that it is never mentioned
in Shas or poskim that life depends on the brain. Seemingly, then, R. Feinstein’s opening paragraph
indicates that he believes that breathing can indeed continue even after total brain failure (which is itself
medically contrafactual, since breathing is controlled by the brainstem). Thus, in the opening paragraph, R.
Feinstein has [contrafactually] stated that breathing can outlast total brain failure, and in the later paragraph
(s.v. aval barur u-fashut she-ein), R. Feinstein has [contrafactually] stated that breathing can outlast total
cardiac arrest. [See supra, note 32.] At the same time, R. Feinstein never expresses whether he believes that
breathing can outlast the combined total failure of both brain and heart. [In any event, it is not even
relevant for us to know what R. Feinstein believes regarding the latter predicament, since R. Feinstein (be-
mechilat kevod Torato) is medically wrong on the first two premises. Namely, breathing never outlasts total
brain failure, and breathing never outlasts total cardiac arrest.]
Until now, we have been assuming that when R. Feinstein refers to “brain”, he means the entire
brain, including the brainstem. This would be the simple way to decode R. Feinstein’s choice of scientific
language. However, R. Tendler (in his lecture referenced supra, note 10) offers a different interpretation to
the word “brain” in the opening paragraph of R. Feinstein’s responsum. R. Tendler believes that R.
Feinstein was fully aware that the brainstem controls breathing, and that when he discusses “brain”, he
means only the cerebrum, without the brainstem. As such, R. Feinstein’s opening paragraph becomes
medically accurate, since it is indeed possible for a patient’s spontaneous breathing to outlast cerebral
death.
However, it must be stressed that even according to R. Tendler’s interpretation of the opening
paragraph [-an interpretation which vindicates R. Feinstein’s medical comprehension], it remains the fact
that R. Feinstein’s subsequent paragraph (s.v. aval barur u-fashut she-ein), where R. Feinstein declares that
breathing can outlast total cardiac arrest, is medically contrafactual.
Now, according to R. Tendler’s interpretation of the opening paragraph (viz. that “brain” means
only the cerebrum, without the brainstem), we must further inquire what R. Feinstein means in the
subsequent paragraph (s.v. aval barur u-fashut she-ein) when he writes “the brain and the heart are the
sources of life.” Did R. Feinstein mean to employ the term “brain” symmetrically in the latter paragraph as
in the former paragraph, meaning only the cerebrum and not the brainstem, or did he suddenly change to a
new meaning of “brain,” meaning the entire brain, including the brainstem? If the first option is the case,
then R. Feinstein would actually be communicating in the later paragraph (s.v. aval barur u-fashut she-ein)
that “it is the cerebrum and the heart which serve as the two sources of human life,” and since R. Feinstein
already negated cerebral death as being inadequate to allow us to pronounce death (opening paragraph), it
would algebraically emerge from the later paragraph (s.v. aval barur u-fashut she-ein) that the heart alone
does serve as a sign of life. [Indeed, R. Bleich, Contemporary Halakhic Problems IV, pp. 343-346,
elucidates the responsum precisely in this manner, though without explicitly mentioning that he is (a)
following R. Tendler’s interpretation regarding the opening paragraph (that “brain” means cerebrum
without the brainstem), and (b) he is reading R. Feinstein’s responsum as an algebraic equation. Likewise,
the 5770 RCA Vaad Halacha study, p. 58, reports that it personally met with R. Tendler on Nov. 20, 2007
to ask him (inter alia) why does he not elucidate the responsum in R. Bleich’s manner, apparently meaning
that the Vaad Halacha concurs with the algebraic equation elucidation of R. Bleich and regards it as the
only credible elucidation possible. As recorded by the Vaad Halacha, R. Tendler’s response was: “Rav
Tendler did not wish to address these words of Iggerot Mosheh.” Note the paradox here: R. Tendler is
being refuted because and only because he interpreted “brain” in the opening paragraph to mean cerebrum.
Had R. Tendler interpreted “brain” as the total brain (as presented earlier in the present footnote), then there
would be no refutation against R. Tendler.]
Neverthless, even if we do follow R. Tendler’s interpretation that “brain” in the opening paragraph
means cerebrum, it seems unclear to this student whether R. Feinstein actually intended to employ the term
“brain” in the later paragraph in exactly the same way he employs it in the earlier paragraph. I.e, it is

16
Elaborating further, R. Feinstein proceeds to observe that Yoma 85a is a mirror-
image of the Gemara, Sotah 45b, the latter being an exposition upon “and your elders and
judges shall go forth; and they shall measure [the distance] to the cities closest to the
corpse” (Deut. 21:2). Specifically, Sotah 45b records a dispute between Rabbi Akiva vs.
Rabbi Eliezer whether we measure from the nose or from the navel. The Gemara initially
hypothesizes that the controversy is based on the embryological dispute regarding the site
from which a fetus develops, but the Gemara rejects this hypothesis.
In Yoma 85a, as well, the Gemara records a dispute of how far we excavate an
upside-down avalanche victim who is rescued on the Sabbath: all the way to the nose, or
only to the heart/navel. There, too, the embryological parallel is suggested as a hypothesis
but promptly torpedoed.
Nevertheless, continues R. Feinstein, these two Talmudic discussions are
fundamentally different. In Yoma 85a, the debate is how stringent we should be regarding
doubts pertaining to saving a life. Under normal circumstances, life can be detected at the
heart/navel, but there is a remote chance that excavating further until the nose will yield a
more accurate diagnosis. By contradistinction, Sotah 45b addresses what philosophically

possible that R. Feinstein linguistically oversimplified his responsum, employing the same term “brain” in
two dramatically different senses. In the opening paragraph, he means [according to R. Tendler’s
interpretation] “cerebrum”, whereas in the later paragraph (s.v. aval barur u-fashut), he means the “entire
brain.” [If so, R. Feinstein’s responsum cannot be read as an algebraic equation.] This would have been
misleading on the part of R. Feinstein, but arguably R. Feinstein was not careful about his scientific
terminology because the main objective of his responsum (like Iggerot Mosheh, Yoreh De’ah II, no. 174,
appearing in the same volume) was to absolutely forbid heart transplants without willingness to discuss
further, lest further discussion appear to indicate room for leniency. [Presumbaly, this would have been the
answer that R. Tendler could have provided the Vaad Halacha when it confronted him (-in addition to the
alternative answer that R. Tendler could retract his interpretation of “brain” in the opening paragraph).]
R. Shabtai, Defining the Moment, pp. 202-203 conjectures as a further possibility a completely
novel interpretation of how to understand the opening paragraph of Iggerot Mosheh, Yoreh De‘ah II, no.
146, a radical interpretation never before suggested by any previous author. Namely, the “breathing” of the
opening paragraph actually refers to passive breathing on the ventilator, with no spontaneous respiratory
activity on the part of the patient, because the patient is brain dead. [According to this claim of R. Shabtai,
R. Feinstein has then explicitly announced that brain dead patients are alive. No other scholar has ever
advanced such a claim regarding Iggerot Mosheh, Yoreh De‘ah II, no. 146. Even those scholars who claim
that R. Feinstein rejected brain death do so based on indirect inferences within the various responsa of
Iggerot Mosheh, not based on an explicit passage in Iggerot Mosheh. Thus, R. Shabtai is unique among
interpreters of Iggerot Mosheh.] One advantage of this completely novel interpretation by R. Shabtai is that
the interpreation upholds both the scientific accuracy of the first paragraph of R. Feinstein as well as the
consistency of how R. Feinstein employs the term “brain” throughout the responsum. Another advantage of
this completely novel interpretation is that it is historically consistent with the the fact that this responsum
was written just two years after the Harvard brain death criteria were published [-criteria which assume that
the patient is incapable of respiratory activity]. Thus, it is logical to assume that R. Feinstein would be
reacting to the Harvard criteria, and would be similarly describing a patient incapable of spontaneous
respiration. On the other hand, a major problem with R. Shabtai’s completely novel interpretation is that it
is contradicted by R. Feinstein’s subsequent responsum Iggerot Mosheh, Yoreh De‘ah III, no. 132, second
paragraph, which declares that breathing on a ventilator is not a sign of life. [Hypothetically, R. Shabtai
could answer that Yoreh De‘ah II, no. 146 refers to a patient with cardiac activity, whereas Yoreh De‘ah III,
no. 132 refers to a patient in cardiac arrest. It is only in cardiac arrest that R. Feinstein negates the value
passive breathing on a ventilator. Indeed, as we will see infra, note 191, R. Shabtai independently avers that
Yoreh De‘ah III, no. 132 may refer to a patient in cardiac arrest (-and on this latter elucidation, as opposed
to his radical interpretation of the opening paragraph of Iggerot Mosheh, Yoreh De‘ah II, no. 146, R.
Shabtai has some allies, as likewise referenced infra, note 191).]

17
defines a corpse: the site where death is most readily manifest (viz. the nose), or the
typical forensic reason for the competition that claimed the traveller’s life (viz. the quest
for food, represented by the navel).
[R. Chaim Kanievsky, Nachal Eitan 5:5 (sec. 6), seems to concur with R.
Feinstein's enantiomeric analysis,37 except for one element. Instead of interpreting the
navel as representing the quest for food, R. Kanievsky understands the navel as
representing the cellular origins of the traveller in utero. And although Sotah 45b
concludes by rejecting the embryological parallel, R. Kanievsky claims that this rejection
was only stated from Rabbi Akiva's perspective.]
As such, it prima facie seems as though R. Feinstein concurs with Divrei Sha’ul,
because (i) R. Feinstein writes twelve times that “heart” is a legitimate textual possibility
in Yoma 85a; (ii) On a thirteenth occasion, R. Feinstein (mistakenly) claims that Rashi is
a legitimate proof to [what R. Feinstein interprets to be] Chakham Tzvi’s position that a
breathless heartbeat is a sign of life [though – to further complicate matters – R. Feinstein
offers his own medically contrafactual alternative to Chakham Tzvi, suggesting that
respiration can even outlast cardiac arrest]; and (iii) R. Feinstein explains that the reason
we check the upside-down avalanche victim to the nose – going beyond the heart – is
because we are afraid we might fail to detect life at the heart. The prima facie implication
of R. Feinstein is that would cardiac activity be detected, this would independently serve
as a sign of life, and it would not be necessary to check the nose altogether.
However, in a recently published article, R. Daniel Reifman proposes an
alternative approach how to understand R. Feinstein’s elucidation of Chakham Tzvi.38
Namely, R. Reifman cites the majority of the portion in Iggerot Mosheh which vacillates
on whether it is possible to breathe following cardiac arrest.39 R. Reifman then analyzes
the text as follows:

“Rabbi 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. Yet this assumption is not integral to Rabbi
Feinstein’s approach; he freely concedes (in the second paragraph) that the
Hakham Tzvi may be correct in assuming that the heart continues to beat
so long as it functions. Whether or not there is ever an actual (i.e.
biological) divergence between heartbeat and heart function, Rabbi

37
R. Kanievsky does not actually identify R. Feinstein’s responsum. This is not entirely surprising, since
Nachal Eitan was published in 1977, only four years after the relevant volume of Iggerot Mosheh. [The
term “enantiomeric analysis” (presently employed in the main text) is borrowed from organic chemistry,
where enatiomers are mirror-image compounds with different behavioural properties. Likewise, R.
Feinstein and R. Kanievsky are both explaining that Yoma 85a and Sotah 45b are mirror-image sugyot with
different meanings.]

R. Daniel Reifman, “Rabbi Moshe Feinstein on Brainstem Death: A Reassessment” (published in


38

Halakhic Realities: Collected Essays on Brain Death, R. Zev Farber, ed., Maggid Books, 2015).
39
The complete relevant passage in Iggerot Mosheh, Yoreh De‘ah II, no. 146 is on p. 249, left-hand
column, lines 17-37. R. Reifman cites lines 17-35.

18
Feinstein makes a conceptual distinction between the two when it comes
to determining death. The aspect of cardiac function that’s 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.”40

So far, R. Reifman’s words are definitely true. R. Reifman then immediately


continues with the following extrapolation:

“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 inability
to provide life force to the body is determined – not merely indicated – by
its failure to support autonomous respiration.”

However, it seems to this student that R. Reifman’s extrapolation (be-mechilat


Kevod Torato) is mistaken. Iggerot Mosheh writes [as one approach] that it is possible for
a patient to be alive even if his heart stops, so long as he can autonomously breathe. R.
Reifman is reconstructing R. Feinstein’s statement to also mean that it is conversely
possible for a patient to be dead even if his heart continues, so long as he cannot breathe.
Such a reconstruction epistemologically constitutes a brand new declaration and would
require its own substantiating evidence. Alas, R. Reifman’s reconstruction appears to be
contradicted by the last sixteen Hebrew words of the relevant passage in Iggerot Mosheh,
sixteen words which are not cited by R. Reifman.41 Those last sixteen words, when
translated into English, read as follows:

“And he [-Chakham Tzvi-] brought Rashi as proof to his explanation that


vitality does not depend on the nose, but rather [the reason we are directed
to inspect the nose is because] of the diagnosis which is more readily
orchestrated at the nose than at the heart.”42

Thus, it appears as though R. Feinstein considers cardiac activity to represent an


independent sign of life, even in the absence of autonomous respiration.
Having discovered this objection to R. Reifman, we now return to R. Reifman’s
analysis. R. Reifman continues that R. Feinstein “explicitly rejects” the claim that Rashi
regards cardiac activity as a sign of life even in the absence of respiration, when R.
Feinstein negates R. Gulevsky’s suggestion that heartbeat is the one-and-only sign of

40
R. Reifman, loc. cit., p. 199.
41
In his recapitulation of R. Feinstein’s Hebrew, R. Reifman places a period at the end of the passage that
R. Reifman cites. However, an examination of the actual responsum in Iggerot Mosheh reveals that there is
no period there, indicating that R. Feinstein’s idea continues onto the next sixteen Hebrew words, only after
which does R. Feinstein finally place a period. [This can be cited as one of the sources of confusion in the
brain death debate.]
42
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 249, left-hand column, lines 35-37.

19
life.43 R. Reifman cites the majority of the relevant passage in Iggerot Mosheh,44 and then
R. Reifman analyzes as follows:

“Based on Rabbi Gulevsky’s understanding of the Hakham Tzvi, absence


of respiration indicates death only because heart function will quickly
cease without it. Rabbi 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 absence of heart function 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 insofar 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 in keeping the patient “alive.” But according to Rabbi
Feinstein’s explanation, autonomous respiration 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 indicates
that meaningful, life-giving heart function has ceased, and that any heart
activity observed henceforth is no indication of life.”45

However, here as well, it seems to this student that R. Reifman (be-mechilat


Kevod Torato) omitted the concluding portion of the relevant portion in Iggerot
Mosheh,46 a sixteen-word Hebrew segment which reads, when translated into English, as
follows:

“And he [Chakham Tzvi] is of the opinion that since it is working – albeit


weakly – there is also beating, but so weak such that it is not audible to us,
as explained earlier.”47

43
R. Reifman, loc. cit., p. 200.
44
The complete relevant passage in Iggerot Mosheh, Yoreh De‘ah II, no. 146 is on p. 249, left-hand
column, lines 37-end, then continuing to p. 250, right-hand column, lines 1-6. R. Reifman cites until p. 250,
line 4.
45
R. Reifman, loc. cit., p. 201.
46
In his recapitulation of R. Feinstein’s Hebrew, R. Reifman places a period at the end of the passage that
R. Reifman cites. However, an examination of the actual responsum in Iggerot Mosheh reveals that R.
Feinstein did not place a period there, but rather a comma, indicating that R. Feinstein’s idea continues
onto the next sixteen Hebrew words, only after which does R. Feinstein finally place a period.
47
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 250, right-hand column, lines 4-6.

20
With this concluding portion, the full relevant passage in Iggerot Mosheh actually
reads as follows:

“And I don’t understand where Kevod Torato ha-Rav sees what he


concludes that it emerges that according to Chakham Tzvi there is one sign
of life and it is the heart, and according to this a human whose heart
beats48 is legally alive and a person whose heart stops is legally dead,
except that without respiration the heart will not function and he will die
immediately. [I reject your conclusion because] this is not the meaning of
Chakham Tzvi. Rather, [the intention of Chakham Tzvi is] as I wrote: that
the heart gives vitality to all the organs, as he brings from the Zohar and
Rambam in Moreh Nevukhim, and even that which there is respiration in
the nose comes from the heart, and when the heart stops working
completely [then] the motion of all organs stops and also the respiration of
the nose stops, but so long as the heart works even with great weakness
such that the other limbs do not move, there is still vitality in breathing,
because the nose is the last organ to stop, and he [Chakham Tzvi] is of the
opinion that since it is working – albeit weakly – there is also beating, but
so weak such that it is not audible to us, as explained earlier.”49

Based on the concluding portion, which focuses on the audibility of heartbeat, this
student would offer a somewhat forced explanation to this passage in Iggerot Mosheh, as
follows: R. Feinstein elucidates that Chakham Tzvi does not require audible cardiac
activity to declare life, because breathing (even in the absence of audible cardiac
activity) proves that cardiac activity is ongoing. So, R. Feinstein is chastising his
interlocutor for claiming that according to Chakham Tzvi audible cardiac activity is the
one-and-only sign of life. No, insists R. Feinstein: audible cardiac activity – while indeed
a genuine sign of life – is not the one-and-only sign of life according to Chakham Tzvi.
Rather, according to Chakham Tzvi, life can continue even when no audible cardiac
activity is detectable, provided the patient breathes. [And, at the same time, R. Feinstein
recognizes that even if the patient does not breathe, audible cardiac activity will itself
constitute a sign of life.]
Although this is a somewhat forced interpretation of Iggerot Mosheh [because – if
this student’s interpretation is true – then R. Feinstein should have written the passage
more clearly by identifying the audibility factor in the opening sentence,50 not just the

48
Uniquely, R. Feinstein employs the Hebrew word po‘em here. R. Reifman correctly translates this as “is
beating,” and so this student has followed in his footsteps by similarly translating “beats.” Arguably, it may
also be possible to discern a musical connotation in the Hebrew verb R. Feinstein employs (borrowed from
the noun pa‘amon in Exodus 28:34). For a hypothesized implication of this connotation, see infra, note 50.
49
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 249, left-hand column, lines 37-end, then continuing to p.
250, right-hand column, lines 1-6.
50
Arguably, one might hypothesize that R. Feinstein actually did incorporate the audibility factor into the
opening sentence of the passage by uniquely employing the Hebrew verb po‘em, which carries a musical
connotation (as mentioned supra, note 48). However, it is disturbing that R. Feinstein would relegate such

21
concluding sentence] this student believes that it is preferred to R. Reifman’s alternate
interpretation of Iggerot Mosheh, on account of the following calculation:

(a) R. Reifman’s interpretation [of why R. Feinstein chastises R. Gulevsky]


cannot readily account for the relevance of the final sixteen Hebrew words in the passage
(which focus on the audibility of heartbeat), thus rendering R. Reifman’s own
interpretation to be somewhat forced.

(b) R. Reifman’s interpretation seems to create an insoluble contradiction within


the words of Iggerot Mosheh. Namely, in the immediately preceding passage, R.
Feinstein writes:

“And he [-Chakham Tzvi-] brought Rashi as proof to his explanation that


vitality does not depend on the nose, but rather [the reason we are directed
to inspect the nose is because] of the diagnosis which is more readily
orchestrated at the nose than at the heart.”51

As we have observed, this passage identifies cardiac activity to represent an


independent sign of life. For Iggerot Mosheh to simultaneously claim (when chastising R.
Gulevsky) that cardiac activity is not a sign of life, would create a contradiction within
the same responsum.52
Now, even if we were to indeed conclude that R. Feinstein contradicts himself in
his responsum whether cardiac activity is an intrinsic sign of life, then it seems to this
student that – by R. Feinstein’s own directive in the same responsum – we would have to
err on the side of caution to assume the possibility that cardiac activity might indeed be
an intrinsic sign of life. This is because –in the same responsum53 – R. Feinstein writes

important information to the mere connotation of a verb. Hence, this student’s explanation remains
somewhat forced.
51
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 249, left-hand column, lines 35-37.
52
It is true that there are several outstanding halakhic issues (including the synagogue partition, conversion
of an adopted baby, double-ring ceremonies for kiddushin, opening a refrigerator door on the Sabbath)
where R. Feinstein contradicts himself throughout his responsa, as documented by this student in “The
Quest for an Effective Synagogue Partition Plan,” footnote 25, available at
<http://www.scribd.com/doc/168693341/Synagogue-Partition>. Nevertheless, in those cases, each
particular responsum is internally consistent; the incongruity at hand is how to reconcile different responsa
of R. Feinstein (written for different situations) with one another. By contradistinction, R. Reifman’s
approach to how R. Feinstein chastises R. Gulevsky creates an internal self-contradiction within the same
responsum of Iggerot Mosheh, Yoreh De‘ah II, no. 146. And although, as explained supra, note 36, there is
a different dimension of Iggerot Mosheh, Yoreh De‘ah II, no. 146, which can independendently (albeit not
necessarily) be understood as self-contradictory (viz. how R. Feinstein employs the word “brain”), there it
is an issue of inconsistent employment of terminology within the same responsum, as distinct from
inconsistent rulings within the same responsum. That R. Feinstein should use terminology inconsistently
within the same responsum is strange but digestible; that R. Feinstein should offer inconsistent rulings
within the same responsum is significantly more surprising.
53
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 250, left-hand column, lines 5-6.

22
that in the absence of expertise on how to diagnose death, we cannot bury a patient
presumed dead until the patient’s flesh decomposes.54

*****

Nevertheless, all of the above represents only one dimension of Iggerot Mosheh’s
elucidation of Rashi regarding a breathless heartbeat. There is a yet second dimension to
Iggerot Mosheh’s elucidation of Rashi regarding a breathless heartbeat, and in the latter
dimension R. Reifman is most eminently correct. Namely, R. Reifman cogently points to
the paragraph where R. Feinstein submits that the brain and the heart are the two sources

54
R. Feinstein`s comment that one would have to wait until decomposition is evidently based on his
separate responsum written two years earlier (and published in the same volume), viz. Iggerot Mosheh,
Yoreh De‘ah II, no. 174, sec. 2. There, R. Feinstein points approvingly to the Gemara, Niddah 69b, which
establishes that a layman is uncertain about the death of a patient until the patient experiences
decomposition. R. Feinstein explains that – even upon perceived cessation of respiration – a person might
actually be alive until his flesh decomposes, because it is impossible for non-experts to ascertain whether or
not it truly represents the irreversible cessation of respiration. Based on Rema to Shulchan Arukh Orach
Chaim 330:5, R. Feinstein concludes that we are all non-experts in pronouncing irreversible cessation of
respiration today. Therefore, R. Feinstein distinguishes between two kinds of treatment of a putative
corpse. Slight movements, such as closing the eyes, pose virtually no danger to a patient who is actually
alive, and so may be orchestrated on a putative corpse after enough time has elapsed such that it would be
impossible to survive breathlessly. [The statement to the contrary of the Mishnah, Shabbat 151b, viz., that
closing the eyes of a gossess is shedding his blood, is regarded by R. Feinstein as being a hyperbole.] But a
major procedure, such as a post-mortem caesarean section, may not be orchestrated upon the putative
corpse even after enough time has elapsed such that it would be impossible to survive breathlessly. One
cannot be certain, even then, that the patient is necessarily dead.
Thus, the conclusion of Iggerot Mosheh, Yoreh De‘ah II, no. 174, sec. 2, would seem to be that
cessation of respiration is only the definition of death insofar as closing the eyes is concerned. But the
patient cannot truly be considered dead for the sake of being seriously manipulated (such as by surgical
incision), even upon cessation of respiration. But, if so, does this really mean, halakhah le-ma’aseh, that
one cannot bury a corpse until putrefaction? [After all, burial is serious a form of manipulation, more
comparable to surgical incision than to closing the eyes.]
To answer this implied question, Iggerot Mosheh, Yoreh De ah II, no. 146 is explaining that
whenever we are experts in the signs of death, we do not need to wait for putrefaction. It is only those who
lack expertise in the signs of death who must wait for putrefaction.
Indeed, R. Feinstein’s approach represents exactly the same question and answer of R. Moshe
Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah no. 338. [Cf. Chiddushei Chatam Sofer, Niddah 69b, where
Chatam Sofer raises the same question but – unlike his responsum – curiously leaves the question
unresolved. As cogently observed by R. Nathan Gestetner, Teshuvot Lehorot Natan XV, no. 82, sec. 10,
Chatam Sofer’s disciple R. Chizkiyah Feivel Plaut, Likutei Chaver ben Chaim, Vol. 7, p. 56b solves the
mystery by posthumously publishing a more complete text of Chatam Sofer’s commentary on Niddah 69b,
which indeed contains the resolution identical to that of Chatam Sofer’s responsum.]
See also R. Chaim Joseph David Azulai, Teshuvot Chaim She’al II, no. 25, sec. 2, who reports
being asked the very same question [as Chatam Sofer]. See also R. Jacob Etlinger, Arukh la-Ner, Niddah
69b, who writes that the only reason we are authorized to bury a corpse before putrefaction is because those
occupied in the interment are experts in the signs of death. See also R. Jacob Samson Shabtai
Sinigalia, Matan be-Seter, Niddah 69b, who quotes R. Azulai and who asserts that the danger of a living
person being confused with a corpse (before putrefaction) is truly a realistic possibility that cannot be
dismissed.

23
of life.55 R. Reifman astutely observes that in this very passage, R. Feinstein seems to
recognize that neurological criteria for death exist.56
In truth, if it were only on account of this literal statement within Iggerot Mosheh
– which appears in the same passage where R. Feinstein [surprisingly] declares that
breathing can outlast cardiac arrest – one might counter R. Reifman by hypothesizing that
all R. Feinstein means to communicate is that in addition to the fact that cardiac activity
contributes to breathing even after cardiac arrest [in the mistaken medical opinion of R.
Feinstein (be-mechilat Kevod Torato)], so too brain activity contributes to breathing even
after total brain failure [in the mistaken medical opinion of R. Feinstein (be-mechilat
Kevod Torato).] Thus, one might still hypothetically insist that there is no proof to the
concept of neurological death in this responsum of R. Feinstein. Viz., one might
hypothetically claim that R. Feinstein means to communicate that the brain is one of the
two sources of life, but not that the brain is necessarily a prerequisite for life. 57
However, because – in his responsum written two years earlier and published in
the same volume as Iggerot Mosheh, Yoreh De‘ah II, no. 174 – R. Feinstein actually does
recognize the concept of physiological decapitation as emerging from Chullin 21a,58 and
because the same Rashi who – in his commentary to Yoma 85a – recognizes cardiac
activity as a sign of life also – in his commentary to Chullin 21a – actually equates
physiological decapitation with death,59 it therefore becomes reasonable to surmise that
when R. Feinstein writes [in Iggerot Mosheh, Yoreh De‘ah II, no. 146] that the brain and
the heart are the two sources of life, R. Feinstein means to combine Rashi to Yoma 85a
with Rashi to Chullin 21a.60 And, if this interpretation is correct, then indeed – as R.
Reifman postulates – R. Feinstein has recognized the concept of neurological criteria of
death in this responsum of Yoreh De‘ah II, no. 146. [If so, then this means that there is an
internal contradiction within this responsum, since – already demonstrated – a different
passage of the same Iggerot Mosheh responsum understands Rashi as identifying cardiac
activity as a sign of life even in the absence of neurological activity.]
Moreover, even if this interpretation of Iggerot Mosheh, Yoreh De‘ah II, no. 146
is not correct [thereby avoiding the internal contradiction within the responsum], it is
indisputably the case that the other responsum of Iggerot Mosheh, Yoreh De‘ah II, no.
174 certainly recognizes the concept of neurological death as emerging from Chullin 21a,
which is indeed consistent with the position of Rashi in Chullin 21a.61

55
See supra, notes 34-35 and accompanying text.
56
R. Reifman, loc. cit., pp. 195-196, 215-216.
57
And as for how R. Feinstein knew that the brain and the heart are the two sources of life, we might
hypothesize approaches 2, 3 or 4 identified in Appendix B of the present essay.
58
See infra, Section R.
59
See infra, Section O.
60
Accordingly, this is identified as approach 1 in the list of hypothesized approaches [in Appendix B of the
present essay] how R. Feinstein knows that the brain and the heart are the two sources of life.
61
As such, we would be faced with the conclusion that R. Feinstein wrote contradictory responsa. See
supra, note 52, for a reference to other (rare) cases where R. Feinstein wrote contradictory responsa.

24
In synopsis, no matter which way one interprets Iggerot Mosheh, Yoreh De‘ah II,
no. 146, it clearly emerges that there is a contradiction between Rashi to Yoma 85a vs.
Rashi to Chullin 21a whether a breathless heartbeat [in an irreversibly unconscious
patient] is a sign of life, and this contradiction is perfectly paralleled in contradictory
statements by R. Feinstein on the status of a breathless heartbeat.

E. THE STATUS OF A BREATHLESS HEARTBEAT V:


RECONCILING THE CONTRADICTION WITHIN
RASHI

In the previous sections, we discovered a contradiction in Rashi to Yoma 85a vs.


Chullin 21a as to whether a breathless heartbeat constitutes a sign of life. In the following
section, we will present two separate – and, in fact, opposite – hypothetical resolutions to
this contradiction.

(1) R. Shlomo Zalman Auerbach suggests that the law of physiological decapitation
presented by Chullin 21a can only be be achieved with certainty when all functions of the
brain – including hypothalamic-pituitary function – have ceased. Until then, cardiac
function [even in the presence of irreversible unconsciousness coupled with irreversible
apnea] is a potential sign of life.62 If so, we might hypothesize a resolution to the
aforementioned contradiction within Rashi. Viz., Rashi to Yoma 85a refers to a breathless
heartbeat in an unconscious patient maintaining hypothalamic-pituitary function, whereas
Rashi to Chullin 21a refers to a breathless heartbeat in an unconscious patient who has
[irreversibly] lost hypothalamic-pituitary function.
Indeed, a position identical to that of R. Auerbach’s analysis of Chullin 21a has
been advanced by R. J. David Bleich63 and by R. Yitzchak Zilberstein.64 Ergo, they too
would presumably resolve the contradiction between Rashi to Yoma 85a vs. Chullin 21a
in the same manner.
However, R. Moshe David Tendler, Responsa of Rav Moshe Feinstein:
Translation and Commentary (KTAV Publishing, 1996), pp. 96-97 and 181, remonstrates
against R. Auerbach that according to the Chullin 21a [as understood by Rashi]
hypothalamic-pituitary function must be irrelevant by definition, because the source

62
See R. David Shabtai, Defining the Moment: Understanding Brain Death in Halakhah (Shoresh Press,
2012), ch. 16.
63
Cited supra, note 20.
64
R. Yitzchak Zilberstein, “Hashtalot Lev ve-Khaved – Kvi‘at Rega ha-Mavet,’ Beit Hillel Vol. 33 (Nissan
5768), p. 44, writes that “we must be concerned that perhaps the heart is activated by a certain cell in the
brain that is still alive, and the ventilator assists that cell of the brain to activate the heart.” [N.B. R.
Zilberstein’s language is, of course, imprecisely formulated, since (as he himself acknowledges earlier on
p. 41 of the article) cardiac activity is not dependent upon stimulation from the central nervous system.
Rather, what R. Zilberstein evidently means (on p. 44) is that the brain (even in a brain dead patient) may
secrete hormones into the circulating bloodstream which then have an effect on other organs of the body,
given that ongoing cardiac activity guarantees that circulation continues. Under such circumstances, one
might legally argue that the brain is still exercising control over the body.]

25
marshalled for the concept of physiological decapitation is the High Priest who fell
backwards off his chair in I Samuel 4:18. R. Tendler observes that – given our present
medical understanding – such a trauma would not typically be capable of terminating all
hypothalamic-pituitary function, and yet the Gemara declares the patient to be instantly
dead all the same. Thus, reasons R. Tendler, we know with certainty that [for Rashi to
Chullin 21a] hypothalamic-pituitary function must be irrelevant. [Rather, the only two
functions of the brain that are halakhically meaningful for Rashi to Chullin 21a would be
those recognized in the sources catalogued above in Section A: respiration and
consciousness. And, as such, there would remain a contradiction between Rashi to
Chullin 21a vs. Rashi to Yoma 85a.]
Indeed, even R. Bleich has acknowledged that it could never realistically occur
that a brain dead patient’s heart would continue beating in the absence of hypothalamic-
pituitary activity.65 If so, then – while admittedly never conceded by R. Bleich as such –
it should emerge that R. Tendler’s analysis of Rashi to Chullin 21a is the more cogent
one.66 Accordingly, R. Auerbach/R. Bleich/R. Zilberstein would be refuted and there
would remain a contradiction between Rashi to Yoma 85a vs. Chullin 21a.
Now, perhaps we can uphold R. Auerbach/R. Bleich/R. Zilberstein’s
reconciliation [of the contradictory comments of Rashi] by positing that the High Priest
in I Samuel 4:18 was especially delicate and so he [the High Priest] uniquely lost
hypothalamic-pituitary function following his trauma, unlike the typical brain dead
patients that are encountered in hospitals today who often retain hypothalamic-pituitary
function. In other words, the law of physiological decapitation derived from I Samuel
4:18 [according to Rashi to Chullin 21a] would become largely hypothetical, somewhat
analogous to the cases of ben sorer u-moreh, ir ha-nidachat and bayit ha-menuga
discussed by the Gemara, Sanhedrin 71a. However, as this approach is speculative [and
has not been articulated by any author prior to this student], this student would prefer to
leave the matter for further analysis by other students of Halakhah. Until then, R.
Tendler’s approach to Rashi to Chullin 21a appears to be the more straightforward
option. If so [i.e. if R. Tendler’s approach to Rashi to Chullin 21a is the more
straightforward option], then there remains a contradiction between Rashi to Yoma 85a
vs. Chullin 21a.

(2) R. Edward Reichman raises a methodological problem with how Rashi understood
cardiac physiology.67 R. Reichman observes that until William Harvey published his
discovery in 1628 of how the circulatory system actually operates, the global scientific

65
Letter of approbation to R. Shabtai, Defining the Moment.
66
However, R. Tendler (be-mechilat Kevod Torato) erroneously oversimplifies in the same analysis when
he continues with the claim that this is not only the position of Rashi but also the position of Shulchan
Arukh Yoreh De‘ah 370:1. As we will see infra, Section O, Shulchan Arukh never explicitly states as such.
Rather, as interpreted by some Acharonim, there is a credible possibility that Shulchan Arukh Yoreh De‘ah
370:1 may learn Chullin 21a differently than Rashi and that Shulchan Arukh would actually reject the
notion of physiological decapitation.
67
R. Edward Reichman, “The Halachic Definition of Death in Light of Medical History,” published in
Mind, Body and Judaism: The Interaction of Jewish Law with Psychology and Biology (R. David Shatz and
R. Joel B. Wolowelsky, eds., KTAV Publishing, 2004), pp. 190-225.

26
community was quite confused as to the role of the heart. Moreover, it took time for
Harvey’s discovery to gain currency even after its publication. To that effect, Chakham
Tzvi (writing in 1709) portrays the confused belief that the heart functions as a respiratory
organ, attributing such an understanding to Rashi to Yoma 85a and accepting it himself.
Similarly, R. Reichman cites Rashi’s comments to three passages in Chullin (45b, 49a
and 111a) as establishing that Rashi regarded the animal heart as an organ that is directly
linked to the trachea, a clear anatomical error.68 Apparently, then, Rashi misunderstood
the heart as a respiratory organ.
Accordingly, given R. Reichman’s analysis, we might hypothesize a resolution to
the contradiction between Rashi to Yoma 85a vs. Chullin 21a, as follows. Really, a
breathless heartbeat is never a sign of life for Rashi, as Rashi writes in Chullin 21a.
Rather, Rashi to Yoma 85a is adding that if a patient is breathing, then and only then does
the heartbeat – through which the patient breathes [according to Rashi’s
misunderstanding of cardiac physiology] – exceptionally acquire value as a sign of life.
Indeed, this resolution would presumably be likewise endorsed by R. Avraham
Steinberg69 and R. Moshe David Tendler,70 who both argue – exactly like R. Reichman –
that Chakham Tzvi is based on false science and so should be granted no credence in
treating a breathless heartbeat as a sign of life.
By contradistinction, R. Moshe Feinstein does not necessarily believe that
Chakham Tzvi’s science is faulty, since R. Feinstein tentatively acknowledges that “it is
possible” that Chakham Tzvi’s conception of cardiac physiology may be correct.71
Elaborating further, R. J. David Bleich, Be-Netivot ha-Halakhah III, p. 134 elucidates
that we can harmonize Chakham Tzvi with contemporary science, since the “hot air
exiting the heart” of which Chakham Tzvi speaks matches the reality of deoxygenated
blood that exits the right cardiac ventricle and enters the pulmonary artery, whereas the
“cold air entering the heart” of which Chakham Tzvi speaks matches the reality of
oxygenated blood that exits the pulmonary veins and enters the left cardiac atrium.72
Actually, as the alternative possibility to Chakham Tzvi, R. Feinstein (in the same
passage as well as the immediately preceding paragraph of that passage) presents an
interpretation of Yoma 85a which is even more explicitly at variance with contemporary
physiological reality. Viz., R. Feinstein writes that it is possible for an asystolic patient to

68
Indeed, observes R. Reichman, this would not be the first time Rashi has been refuted for mistaken
anatomy. Viz. R. Moshe Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah 167, s.v. emet, discredits Rashi and
Tosafot’s misunderstanding of the anatomy described by the Mishnah, Niddah 2:5, vindicating Rambam’s
countervailing understanding instead.
69
Cited by R. Shabtai, Defining the Moment, p. 157.
70
Videotaped interview at <http://www.hods.org>.
71
Iggerot Mosheh, Yoreh De‘ah II, no. 146, s.v. ve-ulai mah she-hutzrakh ha-Chakham Tzvi. This was
written and published by R. Feinstein over three centuries after William Harvey’s discovery.
72
R. Bleich’s harmonization of Chakham Tzvi with contemporary physiological theory is also proposed by
R. Pinchas Sternbuch, in an editorial glosss on the article of his grandfather R. Moshe Sternbuch, “Kvi‘at
Zman ha-Mavet,” Yeshurun Vol. 27 (Elul 5772), p. 689; and by R. Levi Yitzchak Beniel, Refu’ah ka-
Halakhah (Jerusalem, 5775), pp. 494-495.

27
still breathe, a notion dismissed as absurd by contemporary medicine.73 Thus, ironically,
of the two approaches that R. Feinstein presents how to elucidate Yoma 85a, the approach
of Chakham Tzvi is actually more scientifically plausible than the alternate approach.
This is because – as R. Bleich argues – it is indeed possible to harmonize the approach of
Chakham Tzvi with contemporary physiological theory, whereas no scholar has ever been
able to harmonize R. Feinstein’s alternative approach (viz. his claim that it is possible for
a patient in cardiac arrest to continue breathing) with contemporary physiological
theory.74
Furthermore, R. Bleich argues that even we hypothetically concede the point that
Chakham Tzvi is scientifically wrong, Rashi himself (as distinct from Chakham Tzvi)
does not specify that his elucidation of Yoma 85a [which reckons cardiac activity as a
sign of life] is necessarily predicated upon the (mis)understanding that the heart is a
respiratory organ.75
Now, it is true that – as cited by R. Reichman – Rashi elsewhere (viz. Chullin
45b, 49a and 111a) regards the trachea as being anatomically linked to the heart, and
indeed R. Reichman’s proof is never addressed by R. Bleich. Still, R. Yaakov David
Lach appears to subsequently rescue R. Bleich,76 by arguing that Rashi’s anatomical
conception is justified by a ruling of the Gemara itself regarding treifot, such that any
dismissal of Rashi would ipso facto necessitate a dismissal of the Gemara [-an
epistemologically unacceptable proposition.77] Rather, we can uphold Rashi (and the self-
evident truth of the Gemara itself) by placing an intermediate anatomical step between

73
See supra, note 32.
74
For a hypothesized approach how R. Feinstein arrived at the contrafactual understanding that breathing
can continue after asystole, see Appendix A of the present essay.
75
Indeed, as documented in Appendix B of the present essay, already in the time of the Talmud, the
Noahide scientist named Galen (in contradistinction to all the other Noahide scientists of his period)
correctly understood the true physiological nature of the heart. Hypothetically, then, Rashi may have shared
Galen’s correct understanding, rather than the fraudulent misunderstanding of Galen’s opponents.
76
R. Yaakov David Lach, Chullin Illuminated (Hamesivta Publications, 5764), pp. 155-157, 168-169. R.
Lach does not mention the subject of brain death altogether; rather, R. Lach’s focus is hilkhot treifot.
Nevertheless, R. Lach’s approach would ipso facto bear relevance for the subject of brain death, as
explained herein.
Cf. the letter of approbation by R. Yitzchok Stein to R. Lach’s work, which invokes Teshuvot ha-
Rivash no. 447, who warns that abandonment of the science of the Talmud regarding hilkhot treifot in
deference to (le-havdil) secular science can cause misdiagnosis of death. This same Teshuvot ha-Rivash is
invoked by R. Eliezer Yehudah Waldenberg, Teshuvot Tzitz Eliezer XVII, no. 66 in ruling that a brain dead
patient is alive. Arguably (though by no means necessarily), by his invocation of Teshuvot ha-Rivash in his
approbation to R. Lach’s book, R. Stein is subconsciously drawing the identical conclusion from R. Lach’s
defense of Rashi’s understanding of cardiac physiology.
77
As R. Ezekiel Landau, Noda bi-Yehudah, Even ha-Ezer II, no. 79 (first paragraph) posits: “Know, my
beloved student, and let these words be engraved upon the chamber of your heart for recollection, the great
principle that none of the scholars after the Talmud have authorization to say anything against the Talmud,
and one who says to contradict [even] the calligraphic point of a yud [letter] from the words of the Talmud
will not be considered among the scholars of Israel.”

28
the trachea and the heart.78 This vindication of Rashi’s understanding of cardiac anatomy
would then allow us to likewise uphold Rashi’s understanding of cardiac physiology in
Yoma 85a.79 If so, then - contra R. Reichman/R. Steinberg/R. Tendler – there would
remain a contradiction between Rashi to Yoma 85a vs. Chullin 21a.

Analysis of the above two debates: There are at least two ways to reconcile the apparent
contradiction between Rashi to Yoma 85a vs. Chullin 21a, and they are diametrically

78
In context, the Gemara addresses the problem of a needle that is discovered in a slaughtered animal’s
liver. The forensic question is how the needle was originally ingested by the animal. The Gemara rules that
if the blunt end of the needle is found to be facing the abdominal cavity while the sharp end of the needle
faces the blood vessel of the liver (viz. the vena cava), then we must assume that the needle was ingested
through the digestive tract [as most foreign solid material is indeed generally ingested by an animal during
its lifetime] and pierced the intestines in order to arrive at the liver, thereby rendering the animal treifah. By
contradistinction, the Gemara also rules that if the blunt end of the needle faces the liver’s blood vessel
while the sharp end of the needle faces the abdominal cavity, then we are authorized to assume that the
needle was harmlessly inhaled through the respiratory tract and then entered the animal’s circulatory
system from the respiratory tract, ultimately lodging in the liver, guaranteeing that the animal remains
kosher. So Rashi is explaining why the Gemara takes it for granted that the trachea links to the heart, which
is indeed scientifically accurate when envisaged as follows (in the words of R. Lach):

“The ingested needle travels through the trachea into the bronchial tubes of the lungs.
There it pierces the thin walls of the smaller bronchial tubes and enters into the nearby
branches of the pulmonary artery, the blood vessel that runs between the lungs and the
right ventricle of the heart. Via this conduit, the needle enters the heart, and continues its
journey, exiting the heart through the right auricle, into the vena cava. This large vein
runs directly to the liver, and the needle proceeds therein, piercing the liver with its sharp
end, and finally coming to rest, imbedded in the liver. In the course of this journey, the
needle made two punctures – one in the bronchi and one in the branches of the pulmonary
artery. These punctures do not render the animal treifah, because they occurred inside the
lung, where the soft lung material effectively seals the hole...
“It is true that this is a rather unusual path for the needle to take. First, ingested material
usually proceeds through the esophagus, not the trachea. Second, the journey itself is
arduous, for the needle, propelled solely by gravity and the movements of the animal,
must travel against the flow of blood. (This presents less of a problem in the vana cava,
for its flow of blood, returning to the heart from the liver, is a gentle, weak current. More
problematic is explaining the needle’s journey against the strong bursts of current found
in the pulmonary artery. This blood vessel, however, is relatively short, and possibly the
needle proceeded along during diastole.) Nevertheless, the peculiar position of the needle
strongly suggests that this unusual occurrence indeed took place.”
79
As explained by R. Shmuel Wosner, Teshuvot Shevet ha-Levi VII, no. 235, the responsum of Chatam
Sofer regarding family purity which refutes Rashi’s mistaken understanding of anatomy (cited supra, note
68) only does so because of the clear anatomical error on the part of Rashi in that localized instance. By
contradistinction, here in the case of Yoma 85a, where Rashi did not necessarily err regarding cardiac
anatomy [as emerges from the argument presented by R. Bleich and R. Lach showcased in the main text of
this section], we cannot necessarily as easily dismiss Rashi’s contention that a breathless heartbeat is a sign
of life. [N.B. R. Wosner wrote his responsum prior to R. Bleich and R. Lach’s publications, but apparently
already approvingly anticipated their line of reasoning.]
It seems to this student, however, that R. Wosner (be-mechilat Kevod Torato) probably errs when
he claims [as a separate and additional argument in that Shevet ha-Levi responsum] that no Rishon ever
contradicted Rashi to Yoma 85a that a breathless heartbeat is a sign of life. Actually, as this student will
argue infra, note 170a, Rif probably rejects a breathless heartbeat as a sign of life.

29
opposite mirror image solutions of one another. Regarding (1), R. Bleich et al will
reconcile Rashi to Yoma 85a vs. Chullin 21a, whereas R. Tendler et al will leave the
contradiction between Rashi to Yoma 85a vs. Chullin 21a. Regarding (2), R. Bleich et al
will leave the contradiction between Rashi to Yoma 85a vs. Chullin 21a, whereas R.
Tendler et al will reconcile Rashi to Yoma 85a vs. Chullin 21a. Thus, it would seem to
make perfect sense to superimpose the two debates upon one another, synthesizing them
into a single harmonious equation.
However, this student is somewhat reluctant to actually superimpose the two
debates together, because regarding (1) this student finds R. Tendler et al to be more
persuasive, whereas regarding (2) this student is unsure. [If so, the two debates should be
analyzed separately, and the net result is that we would have no way of reconciling the
contradiction between Rashi to Yoma 85a vs. Chullin 21a.]
Nevertheless, since it is entirely possible that this student’s intuitions [as to which
side on each issue is more persuasive] are mistaken, let us indeed now offer a proposed
synthesis of the above two debates, yielding a harmonious equation, as follows. (a)
According to the approach of R. Auerbach/R. Bleich/R. Zilberstein, both comments of
Rashi recognize [or doubtfully recognize80] a breathless heartbeat as a sign of life,
provided that hypothalamic-pituitary function continues. Rashi to Chullin 21a refers to an
anomalous situation where even hypothalamic-pituitary function [and indeed every other
brain function] has been lost; not a realistic scenario in the typical brain dead patient
maintained in a hospital setting. [By contradistinction, R. Tendler balks at the notion that
Chullin 21a is discussing a hypothetical brain dead patient that has no realistic
application in our universe.] (b) According to the approach of R. Reichman/R.
Steinberg/R. Tendler, both comments of Rashi deny a breathless heartbeat as being a sign
of life. Rashi to Yoma 85a is anomalous because it refers to a heart through which the
patient is breathing, which we now realize is a scientific mistake on Rashi’s part. [By
contradistinction, R. Bleich balks at the notion that Rashi’s science is mistaken.]

In conclusion, then, either Rashi recognizes a breathless heartbeat as a sign of life


(R. Auerbach/R. Bleich/R. Zilberstein) or Rashi denies a breathless heartbeat as a sign of
life (R. Reichman/R. Steinberg/R. Tendler). Hence, for purposes of this essay, Rashi will
be described as a “wild card Rishon” who could go either way, depending on how one
reconciles Rashi’s contradictory comments.

F. THE STATUS OF A BREATHLESS HEARTBEAT VI:


CHIDDUSHEI HA-RAN

In the previous five sections, we analyzed Rashi’s contradictory comments on the


status of a breathless heartbeat. The following section will explore Chiddushei ha-Ran’s
position on the same subject.
The Gemara, Chullin 32b, states that once the trachea of an animal has been
severed during the course of ritual slaughter, the lungs are considered to have been

80
The reason, in the opinion of this student, that it it more accurate to state “doubtfully recognize” is
because of the dispute over whether injection of a chemical into the bloodstream constitutes a proximate
cause, as referenced supra, note 20.

30
virtually removed (ke-mancha be-dikula dam'ya) – since they are suspended from the
trachea – and are thereby legally immunized from the possibility of rendering the animal
a treifah, even though the slaughter is not yet complete until the esophagus is severed.
[I.e., once the trachea has been severed, despite the fact that the slaughter is not yet
complete, even if the lungs will be perforated at that point in time, the animal will not be
a treifah, but will rather remain kosher.] Chiddushei ha-Ran quotes an unnamed authority
who submits that the same principle of ke-mancha be-dikula dam’ya applies to the heart,
since the heart is also suspended from the trachea. Chiddushei ha-Ran expresses
disagreement with this anonymous opinion, and rules that – quite the contrary – the heart
can never be said to be virtually removed from the animal in a legal sense while the
slaughter is not yet complete, since the animal could not survive without a heart.
Evidently, Chiddushei ha-Ran recognizes the heart as being of a markedly
different status that the lungs. An animal in the midst of slaughter can halakhically live
without lungs, but not without a heart. And thus it emerges that Chiddushei ha-Ran
believes that a breathless heartbeat is a sign of life.
This proof as to the position of Chiddushei ha-Ran is first identified and endorsed
by R. Shalom Mordechai Schwadron, Da‘at Torah, Yoreh De‘ah 40, §8, in the context of
analyzing Chakham Tzvi. Although the purpose of Da‘at Torah is to evaluate Chakham
Tzvi in its totality (viz. as described in Section C, the thesis that a chicken cannot survive
without a heart), the fact that Da‘at Torah cites Chiddushei ha-Ran to this effect also
seems to indicate that Da‘at Torah concurs with Chakham Tzvi in its particularity (viz. as
described in Section C, the thesis that a creature can resiliently survive even with only
cardiac activity). This is because Chiddushei ha-Ran not only establishes that an animal
cannot live without cardiac activity, but Chiddushei ha-Ran also establishes that an
animal can even tenaciously live with only cardiac activity.
Da‘at Torah, however, is silent regarding what the anonymous authority
(dismissed by Chiddushei ha-Ran) holds. The present student would therefore conjecture
that the anonymous opinion quoted by Chiddushei ha-Ran does not regard the heart as
being any more privileged that the lungs, quite possibly (though not necessarily) because
the anonymous opinion does not regard cardiac activity as a sign of life. I.e., quite
possibly (though not necessarily), our very question of whether a breathless heartbeat
constitutes a sign of life would represent a debate among the Rishonim: Chiddushei ha-
Ran vs. the anonymous authority dismissed by Chiddushei ha-Ran.81

81
The words “though not necessarily” are parenthetically introduced in the paragraph in the main text
[adorned by the present footnote] because there is an alternate way to understand the anonymous opinion
cited by Chiddushei ha-Ran. Namely, perhaps even the anonymous opinion concurs with Chiddushei ha-
Ran to Chullin 32b that cardiac activity is a sign of life, but the anonymous opinion nevertheless is willing
to apply ke-mancha be-dikula dam’ya to the heart because just as breathing is a sign of life (as per Yoma
85a) and yet we apply ke-mancha be-dikula dam’ya to the lungs, so too should we apply ke-mancha be-
dikula dam’ya to the heart, notwithstanding it being a sign of life. In summary, according to Chiddushei ha-
Ran we must say that cardiac activity is a sign of life, whereas according to the anonymous opinion, there is
no proof one way or the other whether or not cardiac activity is a sign of life.
The above constitutes what this student regards to be the straightforward explanation of the debate
between the anonymous opinion and Chiddushei ha-Ran. In offering this explanation, the present student is
deviating with constructive criticism from (or “diamond-polishing”) two previous noble attempts to explain
the same debate, as follows:
1) R. Bleich, Be-Netivot ha-Halakhah III, pp. 116-122, claims it to be axiomatic that both the
anonymous opinion and Chiddushei ha-Ran regard a breathless heartbeat as a sign of life. So, what is the

31
debate, according to R. Bleich? R. Bleich avers that the anonymous opinion is willing to consider a heart to
be virtually removed [for purposes of immunizing the animal from treifot] even though the heart itself is
giving the animal life (by facilitating circulation, which does not depend on the trachea and hence continues
even after the trachea is severed), since the anonymous opinion feels that the laws of treifot depend
exclusively upon the heart’s tracheal link. Once the tracheal link is severed, although the heart continues to
give the creature life through circulation, the heart is immunized from treifot. By contradistinction,
Chidushei ha-Ran regards it as absurdly self-contradictory that the heart should be considered removed
from the animal in one respect (viz. the laws of treifot) and part of the animal in another respect (viz.
keeping the animal alive). Rather, since the heart actually does keep the animal alive, Chiddushei ha-Ran
rules that it also must be subject to treifot.
Now, the reason R. Bleich claims it to be axiomatic that both opinions agree that cardiac activity is
a sign of life is because Chakham Tzvi subsequently writes “no person ever disputed” that life is dependent
on the heart, and R. Bleich assumes (quite properly, of course) that Chakham Tzvi must have been aware of
all the Rishonim on this subject, including the two opinions recorded in the Chidushei ha-Ran, when he
offered this declaration.
However, with all due respect manifest before R. Bleich, (le-havdil ani ha-katan) this student
counters that although it is true everyone (as understood by Chakham Tzvi) concurs that life depends upon
the heart, nevertheless – as remonstrated supra, Sections A-C – this is not necessarily the same as saying
that patient can live with only a heart. Thus, this student believes that the more straightforward
understanding of the debate between the anonymous opinion and the Chiddushei ha-Ran is that stated in
the main text (and elaborated in the first paragraph of the present footnote). Namely, Chiddushei ha-Ran
holds that cardiac activity is a sign of life and therefore ke-mancha be-dikula dam’ya does not apply,
whereas the anonymous opinion disagrees because either (i) the anonymous opinion does not regard
cardiac activity as a sign of life, or (ii) the opinion regards cardiac activity as a sign of life, but cardiac
activity is no more privileged than respiratory activity. Just as ke-mancha be-dikula dam’ya applies to
respiratory activity, so too ke-mancha be-dikula dam’ya applies to cardiac activity.
2) R. Menachem Mendel Kasher, Divrei Menachem I, Chelek ha-Teshuvot no. 27, posits that the
anonymous opinion holds like R. Jacob of Karlin, Teshuvot Mishkenot Ya‘akov, Yoreh De’ah no. 10, that a
creature can survive even without a heart altogether, whereas Chiddushei ha-Ran holds like Chakham Tzvi
that a creature cannot survive without a heart. As such, R. Kasher explains that the second opinion (viz.
Chiddushei ha-Ran himself) is unable to apply “virtual removal” to the heart since, if the heart is virtually
removed, the animal will be dead [and accordingly the virtual removal of the heart would not only
immunize the animal from treifot, but would actually render it a neveilah].
R. Bleich, loc. cit., challenges this interpretation of R. Kasher by observing that Chakham Tzvi
confidently declared in his responsum that no previous halakhic authority has ever overtly disputed his
thesis that an animal cannot survive in the absence of a heart. [As already mentioned earlier in this
footnote,] R. Bleich assumes that the Chakham Tzvi must have been aware of all the Rishonim on this
subject, including the two opinions recorded in the Chiddushei ha-Ran, when he offered this declaration.
Actually, with all due respect manifest before R. Bleich, it seems to (le-havdil ani ha-katan) this
student that while of course R. Bleich is correct that Chakham Tzvi himself could never agree with R.
Kasher’s interpretation, nevertheless Mishkenot Ya‘akov (who clearly rejects Chakham Tzvi, holding
instead that a creature can indeed survive without a heart) might indeed concur with R. Kasher’s
elucidation of the dispute. Thus, R. Kasher’s interpretation of the dispute is possible, though not necessarily
convincing [since it only works according to Mishkenot Ya‘akov, not Chakham Tzvi]. In any event, this
student hastens to observe that even according to R. Kasher’s interpretation of the dispute (-an
interpretation that is unacceptable to Chakham Tzvi but which is indeed acceptable to Mishkenot Ya‘akov),
Chiddushei ha-Ran is indeed communicating that a breathless heartbeat constitutes a sign of life. This is
because Chiddushei ha-Ran is only unwilling to apply virtual removal to the heart [-which, according to R.
Kasher, is because Chiddushei ha-Ran’s opinion is that the animal cannot survive without the heart], but is
obviously willing to apply virtual removal to the lungs. This means that R. Kasher believes that Chiddushei
ha-Ran holds that a creature can survive without lungs, so long as it possesses a heart. And thus – even for
R. Kasher – a breathless heartbeat is a sign of life according to Chiddushei ha-Ran. (N.B. Regarding the
anonymous first opinion as interpreted by R. Kasher, it is difficult to draw a conclusion, since the first
interpretation holds that there can even be life without a heart altogether.)

32
Remarkably, Chazon Ish (Yoreh De'ah 4:14, first paragraph, final four lines)
seems to have overlooked this Chiddushei ha-Ran [as well as Da‘at Torah who cites
Chiddushei ha-Ran]. Namely, Chazon Ish claims that Chakham Tzvi’s thesis [that an
animal cannot live without a heart, as discussed in Section A of the present essay] is
contradicted by the Gemara, Chullin 32b. Chazon Ish argues that the same way we
say ke-mancha be-dikula dam'ya regarding the lungs [as the Gemara explicitly declares],
it is implicit in the Gemara that we should also say ke-mancha be-dikula
dam'ya regarding the heart. This is exactly the opposite of what Chiddushei ha-
Ran writes. Chiddushei ha-Ran argues that although we say ke-mancha be-dikula
dam'ya regarding the lungs [as the Gemara explicitly declares], we will not say ke-
mancha be-dikula dam'ya regarding the heart.
Now, as already mentioned, Chiddushei ha-Ran does acknowledge a
countervailing opinion from an anonymous Rishon that we do say ke-mancha be-dikula
dam'ya for the heart. This other opinion is indeed fully synonymous with what Chazon
Ish writes. But, even so, Chazon Ish presumably overlooked Chiddushei ha-Ran [as well
as Da‘at Torah who cites Chiddushei ha-Ran], for otherwise Chazon Ish should have
clearly written that he is favouring the anonymous Rishon over Chiddushei ha-Ran.82
[And see R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 88, who writes that
the greatest honour one can grant Chazon Ish is to study his words and respectfully argue
on him in the (exceedingly seldom) cases that there is room to argue.83]
As our next consideration, because Chiddushei ha-Ran addresses cardiac activity
in the context of an animal [without addressing the parallel question of whether this

In grand total, according to all three interpretations that have been published in elucidating the
debate between the anonymous opinion and Chiddushei ha-Ran (viz. R. Kasher, R. Bleich and this
student), Chiddushei ha-Ran himself believes that cardiac activity is a sign of life.
82
This can be cited as one of the legitimate sources of confusion in the brain death debate.
To that effect, see R. Eliezer Yehudah Waldenberg, Teshuvot Tzitz Eliezer XVI, no. 24, who
references Da‘at Torah approvingly, and then incongruously cites Chazon Ish approvingly, not realizing
that this contradicts Da‘at Torah [and – more significantly – Chiddushei ha-Ran cited by Da‘at Torah]. In
any event, it emerges from five other of his Tzitz Eliezer responsa (itemized infra, note 254) that R.
Waldenberg indeed regards a brain dead patient as alive, based (inter alia) on how R. Waldenberg
understands Rashi to Yoma 85a. R. Waldenberg’s oversight [or – as will more precisely emerge from the
balance of this footnote – one of R. Waldenberg’s oversights] thus consists of failing to cite Chiddushei ha-
Ran as a potential relevant source on the matter of a breathless heartbeat.
Chazon Ish and R. Waldenberg’s joint oversight is directly copied by the 5770 RCA Vaad
Halacha study, footnote 189. While analyzing R. Waldenberg’s responsa, the 5770 RCA Vaad Halacha
study mistakenly claims: “It should be noted that nowhere in the Talmud is there any mention of continued
heart beat without respiration even though such possibilities were clearly present, such as following the
shechitah of an animal.” Alas, this mistaken claim reflects an oversight of Chiddushei ha-Ran, who does
refer to the concept of heartbeat outlasting respiration, and specifically while analyzing a Talmudic passage
(Chullin 32b) regarding shechitah.
An additional oversight on the specific part of R. Waldenberg must be underscored. As explained
supra, Section E, Rashi’s full position on the matter of breathless heartbeat – when taking into account his
contradictory comments on Yoma 85a vs. Chullin 21a – is actually a wild card, being subject to competing
proffered reconciliations.
83
Cf. infra, note 87, for a hypothesized conjecture why Chazon Ish may have ignored Chiddushei ha-Ran
to Chullin 32b.

33
applies to a human being], we must address whether we can draw an inference from
animal vitality to human vitality. In other words, we must pose the question: can we
apply Chiddushei ha-Ran’s position regarding cardiac activity to a human patient? This
problem appears to be addressed by R. Menachem Mendel Kasher, Divrei Menachem I,
Chelek ha-Teshuvot no. 27, fifth paragraph. In his discussion of Chiddushei ha-Ran, R.
Kasher also cites Chakham Zvi (the same responsum analyzed in Sections A-B above)
who writes that “it has never been seen or heard in any of the poskim – Rishonim or
Acharonim – who say that [there is a situation] where in a human it is not alive and in an
animal it is alive.” Thus, if cardiac activity is a sign of life in an animal, then it is
certainly a sign of life in a human.
However, R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 174, p. 287,
lines 20-32, hypothetically acknowledges a contrary possibility. In offering one of three
proposed distinct interpretations of how to understand Rosh in his commentary on Ohalot
1:6 [who, in turn, elucidates how Rashi and Tosafot decipher Chullin 20b-21a],84 R.

84
In context, Rashi and Tosafot’s commentary on the Gemara, Chullin 20b-21a focuses on the following
discussion in capsule form:
Zeiri says that an animal whose neckbone and surrounding musculature have been severed is dead.
Shmuel applies the same to a human. The Gemara then quotes the Mishnah, Ohalot 1:6, which equates
decapitation with death. Elucidating this Mishnah, Resh Lakish says it refers to literal decapitation
[including the complete severance of both trachea and esophagus], whereas Rabbi Assi in the name of
Rabbi Mani argues and says it refers even to a more limited form of decapitation, where the majority of the
trachea and esophagus have been severed. [End of sugya in capsule form.]
Writing on Ohalot 1:6, Rosh comments that according to both Rashi and Tosafot, it is the case that
both Resh Lakish as well as Rabbi Assi in the name of Rabbi Mani are referring only to animals, to the
exclusion of humans. The three possible distinct interpretations of Rosh – as proposed by R. Feinstein – are
as follows [with critique by the present student (SCS) on the first explanation]:

(a) According to both Rashi and Tosafot, Resh Lakish and Rabbi Assi in the name of Rabbi Mani
consider even a completely decapitated human to be alive. Thus, Resh Lakish and Rabbi Assi in
the name of Rabbi Mani dispute Shmuel who consider a human whose neckbone and surrounding
musculature have been severed [and, the more so, if the human would be completely decapitated]
to be dead. [Critique by SCS: Be-mechilat Kevod Torato of R. Feinstein, attributing such an
understanding to Rosh is not credible, since it would effectively mean that Rosh overlooked an
explicit Gemara in Sotah 45b. Viz., Sotah 45b – in describing the debate (found in the Mishnah on
the same page) between Rabbi Eliezer and Rabbi Akiva regarding whether a decapitated met
mitzvah is to be buried at the place of the head or at the place of the torso – establishes that
according to all sages of the Mishnah, at the moment of absolute decapitation, a human being is
instantly dead, even though the head may roll away some distance afterward, and/or even though
the torso may reflexively run for some distance afterward. Neither Resh Lakish no Rabbi Assi in
the name of Rabbi Mani, being sages of the Gemara, enjoy the authority to dispute the universal
consensus of sages of the Mishnah.]
(b) According to both Rashi and Tosafot, all sages of the Gemara agree that complete decapitation is
death in both animals and humans. However, if the decapitation is more limited – in the form of a
severed neckbone, severed trachea and severed espohagus [but no violence to the musculature
surrounding the neckbone]– then Resh Lakish and Rabbi Assi in the name of Rabbi Assi consider
it to be death only in animals but not in humans. By contradistinction, Zeiri and Shmuel would
consider it to be life even in animals [since the musculature would remain in tact]. At the same
time, a different kind of limited decapitation – in the form of a severed neckbone and surrounding
musculature [but no violence to the trachea and esophagus] – would be considered by Zeiri and
Shmuel to be death in animals and humans, whereas Resh Lakish and Rabbi Assi in the name of
Rabbi Assi would consider it to be alive.

34
Feinstein articulates the possibility that there may indeed be a condition which would
represent life in an animal yet death in a human. Viz., if the neckbone is broken together
with the majority of musculature but without severing the trachea and esophagus, R.
Feinstein declares that – according to Resh Lakish and Rabbi Assi in the name of Rabbi
Mani – the animal would be alive but the human would be dead. [If so, now that we have
discovered a case of life in an animal which is death in a human, one might argue that we
cannot infer human vitality from animal vitality, and thus the proof from Chiddushei ha-
Ran to Chullin 32b regarding a breathless heartbeat is deflected.]
Nevertheless, R. Feinstein concedes that such a paradox [of a condition
representing life in an animal and death in a human] appears surprising, and R. Feinstein
does not mention that he is contradicting the aforementioned Chakham Tzvi in even
entertaining the possibility of such a paradox. Furthermore, R. Feinstein’s conclusion is
that the Gemara, Chullin 21a, should be actually be explained like Rambam and Ba‘al
ha-Ma’or, who elucidate Chullin 21a contrary to Rosh, and that there is no substantive
basis to attribute to Rashi and Tosafot that which Rosh attempts to attribute to them
except for a weak inference (diyuk kalush). If so, then R. Feinstein presumably does not
grant much credence to his hypothesized paradox [which was stated according to one of
three possible ways how to understand Rosh] that there could be a condition which spells
life for an animal but death for a human. Ergo, all things being equal, Chiddushei ha-Ran
to Chullin 32b should remain a valid proof that cardiac activity is a sign of human life.
However, in point of fact, it seems to this student that further analysis will reveal
that things are not actually equal. Namely, as will be explained in a later section of the
present essay,85 it seems to this student that – contrary to all previously published
analyses of the Ran – there is actually a credible safek whether or not Ran al ha-Rif to
Chullin 21a endorses the notion of physiological decapitation.86 [This student is
(apparently87) the first to ever advance such a claim, contrary to all previously published

(c) According to both Rashi and Tosafot, all sages of the Gemara agree complete decapitation is death
in both animals and humans. However, if the decapitation is more limited – in the form of a
severed neckbone, severed trachea and severed espohagus [but no violence to the musculature
surrounding the neckbone]– then Resh Lakish and Rabbi Assi in the name of Rabbi Assi consider
it to be death only in animals but not in humans. By contradistinction, Zeiri and Shmuel would
consider it to be life even in animals [since the musculature would remain in tact]. At the same
time, a different kind of limited decapitation – in the form of a severed neckbone and surrounding
musculature [but no violence to the trachea and esophagus] – would be considered by Zeiri and
Shmuel to be death in animals and humans, whereas Resh Lakish and Rabbi Assi in the name of
Rabbi Assi would consider it to be alive in animal but dead in a human, since for a human they
concede that (being derived from a verse in I Samuel 4:18) it must be death.
85
Infra, Section P.
86
Ran al ha-Rif is, of course, authored by the very same Ran who authored Chiddushei ha-Ran.
87
The caveat “apparently” is inserted here, since one might hypothetically counter-claim that Chazon Ish
(Yoreh De'ah 4:14, first paragraph, final four lines) actually anticipated this student’s interpretation of Ran
al ha-Rif to Chullin 21a, and – because Chazon Ish then realized that Ran al ha-Rif to Chullin 21a
(understood as such) now contradicts Chiddushei ha-Ran to Chullin 32b – Chazon Ish chose to ultimately
reject Chiddushei ha-Ran to Chullin 32b as being based on flawed science [parallel to the approach of R.
Reichman/R. Steinberg/R. Tendler to the contradictory comments of Rashi, as highlighted supra, Section

35
analyses of Ran.] If so, Ran would actually become a “wild card Rishon” analogous to
Rashi, because Ran al ha-Rif to Chullin 21a would potentially contradict Chiddushei ha-
Ran to Chullin 32b. To that effect, the very same debate over the accuracy of Rashi’s
theory of cardiac physiology [which contributes to Rashi’s status as a “wild card Rishon,”
as explained above, Section E] can equally be transposed to Ran, since Chiddushei ha-
Ran describes the heart as being suspended from the trachea.
In the next several sections, we will investigate the positions of Me’iri, Tosafot,
Rabbeinu Bachye, Rambam, Rosh, Rabbeinu Shimshon of Shantz, Ibn Ezra and Radak.

G. THE STATUS OF A BREATHLESS HEARTBEAT VII:


ME’IRI

Me’iri, in his Beit ha-Bechirah commentary to Yoma 85a, identifies both textual
possibilities of “navel” and “heart.” Accordingly, R. Bleich, Be-Netivot ha-Halakhah III,
p. 133, argues that Me’iri proves that cardiac activity is also a sign of life.
However, there are three problems with this proof, as follows:

(a) Unlike Rashi to Yoma 85a who writes that a breathless heartbeat is a sign of
life according to all Sages in the Gemara, Me’iri’s words only explain the rejected
opinion in the Gemara (-which Me’iri is reading to check “until the navel or the heart”).
R. Bleich is assuming that the countervailing opinion (which says to “check until the
nose”) – which we indeed follow as a matter of practical Halakhah – also assigns
significance to the inspection mentioned by the rejected opinion. [For Rashi, this is
certainly true,88 but Me’iri is more ambiguous, and so it is not clear that R. Bleich’s
citation of Me’iri is relevant.]

(b) As R. Moshe Bleich (son of R. J. David Bleich) has explained in a separate


context,89 it is controversial whether we can offer a definitive ruling based on the newly
discovered manuscripts of Me’iri. Somewhat similarily (albeit with an important
difference), at a meeting with the Diaspora students at Yeshivat Har Etzion during the
summer of 5760 which this writer personally witnessed, R. Aharon Lichtenstein was
asked by one of the Diaspora students whether the newly discovered manuscripts of
Me’iri impact upon practical halakhic determinations. R. Lichtenstein’s oral response was
“le-chumra ken, le-kula lo” (to be stringent affirmative, to be lenient negative).90

E]. However, such a hypothetical counter-claim is conjectural, not found explicit in the words of Chazon
Ish, and so requires further analysis.
88
As explained supra, Sections B and D.
89
R. Moshe Bleich, “The Role of Manuscripts in Halakhic Decision-Making” (Tradition 27:2, Winter
1993). [And see R. J. David Bleich’s subsequently published The Philosophical Quest: Of Philosophy,
Ethics, Law and Halakhah, p. 335, which approvingly cites his son’s article (-in effect, retroactively raising
a question on the proof from Me’iri cited in Be-Netivot ha-Halakhah III, p. 133).]
90
On the other hand [in fairness to R. J. David Bleich], were this the only objection to marshalling proof
from Me’iri, then R. Lichtenstein’s oral response would seemingly be sufficient to argue in favour of
doubtful stringency, viz. to treat cardiac activity as a sign of life as a matter of doubtful stringency. After
all, R. Lichtenstein said “le-chumra ken.” It is for this reason that the main text adorned by the present

36
(c) If, indeed, Me’iri means to communicate in his commentary to Yoma 85a that
cardiac activity is a sign of life [as R. J. David Bleich is arguing], this would then appear
to be contradicted by Me’iri’s own commentary to Chullin 33a. There, Me’iri quotes an
anonymous opinion that – following the severance of the trachea during shechitah – just
as perforated lungs will not render the animal treifah,91 so too will actual physical
removal of the lungs not render the animal treifah, and the meat will subsequently be
kosher for consumption (provided that the shechitah is first successfully completed
through severance of the esophagus). Me’iri disagrees with the anonymous opinion,
instead ruling that actual physical removal of the lungs will render the animal a neveilah
(even worse than a treifah) and hence forbidden for subsequent consumption [even
though cardiac activity continues]. This seemingly contradicts Me’iri’s own commentary
in Yoma 85a which [as interpreted by R. J. David Bleich] speaks of cardiac activity being
a sign of life.92

On other hand, in an amazing discovery that has (apparently93) eluded every


previous author on the topic of brain death, R. Joseph Isaac Lifshitz rescues R. J. David
Bleich by invoking a completely different comment of Me’iri of major relevance, viz.
Yoma 23a, s.v. ein ha-met metamei be-ohel.94 In that passage, Me’iri derives from the
Gemara that – other than the cases of decapitation described by Chullin 20b-21a – any

footnote parenthetically mentions that there is “an important difference” between the oral response of R.
Lichtenstein and the article of R. Moshe Bleich.
91
As explained supra, Section F.
92
Indeed, R. J. David Bleich himself, Be-Netivot ha-Halakhah III, pp. 118-119, cites the very same Me’iri
to Chullin 33a, thus – in effect – raising a contradiction to the proof from Me’iri to Yoma 85a later cited on
p. 133 of that same volume of Be-Netivot ha-Halakhah III.
Actually, were it not for R. Bleich’s words in Be-Netivot ha-Halakhah III, pp. 118-119, this
student would propose a solution to this third objection to the proof from Mei’ri to Yoma 85a. Namely, this
student would propose that Me’iri to Chullin 33a does not mean to communicate [as R. Bleich, Be-Netivot
ha-Halakhah III, pp. 118-119, presents him to be communicating] that actual physical removal of the lungs
ipso facto constitutes the instant death of the animal. Rather, Me’iri means that actual physical removal of
the lungs represents so significant a trauma to the animal that the animal will almost immediately
experience cardiac arrest, the latter condition being one which will constitute the death of the animal. [If so,
the third objection to the proof from Me’iri to Yoma 85a is thereby resolved. Even if so, however, this
would still not resolve the first and second objections. Cf. supra, note 90, for a response regarding the
second objection.]
93
The word “apparently” is parenthetically inserted in the main text since one might argue that R. Shalom
Mordechai Schwadron, Teshuvot Maharsham VI, no. 124, attempts to draw the same inference from Yoma
23a. [However, in the case of Maharsham, the inference is immediately abandoned, evidently because
(inter alia) Maharsham never had access to the more recently published manuscript of Me’iri in question.]
Additionally, the word “apparently” is parenthetically inserted in the main text since R. Menachem Mendel
Kasher, Divrei Menachem I, Chelek ha-Teshuvot no. 27, p. 241, footnote to right-hand column, references
Yoma 23a. [However, R. Kasher does not specifically cite Me’iri.]
94
R. Joseph Isaac Lifshitz, “Death is a Process,” (published in Halakhic Realities: Collected Essays on
Brain Death, R. Zev Farber, ed., Maggid Books, 2015), p. 171.

37
fluttering (shum pirpur) or motion (shum tenu‘ah) of a patient is automatically a sign of
life. This clearly demonstrates beyond cavil that Me’iri regards a breathless heartbeat as a
sign of life, thereby obviating challenges (a) and (c) that R. J. David Bleich faced above,
and leaving problem (b) as the sole challenge to R. J. David Bleich’s thesis. For R.
Lichtenstein, this would presumably be sufficient to argue in favour of doubtful
stringency.95 [Ironically, R. Moshe Bleich might not be as easily persuaded.96]

H. THE STATUS OF A BREATHLESS HEARTBEAT VIII:


TOSAFOT

Although not entirely explicit in R. Feinstein’s analysis, it appears to this writer


that R. Feinstein implicitly acknowledges that Tosafot also read “heart” in their edition of
the Gemara, Yoma 85a. Arguably, then, Tosafot also regard cardiac activity as a sign of
life.97
Namely, in Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 250, right-hand column,
lines 37-39, R. Feinstein explains that Kessef Mishneh had a text of Yoma 85a according
to which the tanna kamma says to check until the navel, and the yesh omrim says to
check until the nose. R. Feinstein points out that our Vilna Shas has the reverse
attribution of opinions, with the tanna kamma being the one who says to check until the
nose. R. Feinstein says the reason that this is in our Vilna Shas must be (she-vadai hayah
zeh) because this is the manuscript of both Rashi and Tosafot. [I.e. if either Rashi or
Tosafot disagreed, the disagreement could not pass without a gloss in our Vilna Shas
manuscript.] Presumably, the same logic of R. Feinstein would lead us to conclude that
the reason our Vilna Shas reads “heart” is because both Rashi and Tosafot concur that it
should read “heart.”

95
Cf. the 5770 RCA Vaad Halacha study, pp. 43-45, which reports that R. Lichtenstein explained [in an
oral response to the Vaad Halacha’s inquiry] that he considers the status of a brain dead patient to be a
matter of doubt. No specific mention of the Me’iri to Yoma 23a is offered by R. Lichtenstein in that report,
possibly because the major relevance of that source remained unknown until R. Lifshitz publicized it only
five years after the RCA study.
See also R. Ovadiah Yosef, Teshuvot Yabi‘a Omer VII, Orach Chaim 51, sec. 10, who is willing
to even be lenient based on a ruling of Me’iri to Berakhot 34a. Namely, during the ten days of repentance,
if the cantor reciting the repetition of the amidah forgets to say Ha-Melekh Ha-Kadosh, Me’iri does not
require the cantor to return to the very beginning of the amidah [as would be the halakhah for a private
individual reciting the amidah]; rather, it is sufficient for the cantor to return to the paragraph [in the
Sephardic liturgy which begins] Atah Kadosh. [In the Ashkenazic liturgy, the cantor would return to the
paragraph Le-dor va-dor.] R. Ovadiah Yosef endorses this leniency of Me’iri to Berakhot 34a. Arguably,
then, there is reason to speculate that if only R. Ovadiah Yosef was apprised of the Me’iri to Yoma 23a, he
might concur – at least to be stringent – to consider a brain dead patient potentially alive. [N.B. For a
survey of the oral record of R. Ovadiah Yosef on the subject of brain death, see infra, Section Y.]
96
As R. Moshe Bleich writes in the concluding sentence of his article on newly discovered manuscripts,
“formulation of novel halakhic positions and adjudication of halakhic disputes on the basis of such sources
can be undertaken only with extreme caution.”
97
This proof regarding Tosafot is methodologically parallel to R. Bleich’s proof regarding Mei’iri,
presented in the immediately previous section.

38
The ambiguity with this proof, however, is – even if we should accept R.
Feinstein’s methodological assumption that Tosafot concurred with the text presented by
our Shas and by Rashi – Tosafot may have hypothetically regarded the “heart” reference
to only be relevant to the rejected opinion in the Gemara (-which Tosafot are reading to
check “until the heart”). Unlike Rashi, who clearly indicates that all Sages in the Gemara
regard cardiac activity as a sign of life, Tosafot’s silence leaves room for uncertainty.98
The truth of the matter is that even according to majority of Rishonim who [unlike
Tosafot] read “navel” instead of “heart” for Yoma 85a, there may not be any substantive
difference. This is because R. Yehudah Aryeh of Modena, Amar ha-Boneh to Yoma 85a,
interprets “navel” to actually refer to cardiac and hepatic function, inasmuch as the heart
and liver are located in the vicinity of the navel. Presumably, then, for Amar ha-Boneh,
all Rishonim understand Yoma 85a to be mentioning the heart. Furthermore, and
paradoxically so, for Amar ha-Boneh, this very same cardiac activity of Yoma 85a is none
other than a measure of brain activity, as explained above, Sections A-B. Accordingly, it
should make no practical difference one way or another that Tosafot read “heart” in Yoma
85a. This reinforces our conclusion [already established in the previous paragraph] that
Tosafot to Yoma 85a do not serve as any proof regarding the status of a breathless
heartbeat.
An entirely separate comment of Tosafot, viz. Bava Batra 156b, s.v. kvinati le-
viti, is also of prima facie relevance to the question of a breathless heartbeat. Namely,
Tosafot explain that the term batei ha-nefesh (“houses of the soul”) in Isaiah 3:20 refers
to a garment worn over the heart, where the soul resides. R. Shalom Mordechai
Schwadron, Da‘at Torah, Yoreh De‘ah 40, §8, marshals this Tosafot as proof to
Chakham Tzvi’s thesis.
The ambiguity with this latter proof, however, is that Tosafot to Bava Batra 156b
[and Da‘at Torah in his citation thereof] may be merely referring to the notion that a
creature cannot live without cardiac activity, [viz. the thesis of Chakham Tzvi in its
totality, as explained above, Section C.] As such, Tosafot to Bava Batra 156b would be
merely reiterating the identical message of Tosafot to Sotah 5a. It is not clear that Tosafot
to Bava Batra 156b necessarily intend to also affirm the independent notion that a
creature can resiliently live with only cardiac activity, [viz. the thesis of Chakham Tzvi in
its particularity, as explained in Section C,] and it is the latter notion which is essential to
the question of a breathless heartbeat.

I. THE STATUS OF A BREATHLESS HEARTBEAT IX:


RABBEINU BACHYE

Commenting on Deut. 6:5 – “And you shall love [the Holy One, blessed be He]
with all your heart” – Rabbeinu Bachye writes that the meaning of this verse is that the
heart is the last organ of a human being to die, and a Jew must continue to love the Holy

98
The same methodological remonstration was presented supra, Section G, regarding Me’iri to Yoma 85a.
[At the same time, as further explained there, Me’iri to Yoma 23a (as distinct from Me’iri to Yoma 85a)
suffers from no such methodological difficulty.]

39
One, blessed be He, even at the final moment of human life. R. Aharon Soloveitchik99
and R. J. David Bleich100 marshal this as proof that Rabbeinu Bachye considers cardiac
activity to be a sign of life.
The difficulty with this proof, however, is that Rishonim are not authorized to
innovate biblical expositions, as discussed [in an entirely separate context] by R. Ovadiah
Yosef, Teshuvot Yechaveh Da‘at VI, no. 30.101 Indeed, the frustration with relying on
Rabbeinu Bachye’s exposition to Deut. 6:5 appears to be expressed by R. Hershel
Schachter in his 1988 symposium with R. Moshe David Tendler debating the status of
brain death.102 Although R. Schachter indeed regards a brain dead patient as being
doubtfully alive, R. Schachter refuses to appeal to Rabbeinu Bachye as support for
endowing the patient with any life, since [in the words of R. Schachter, employing
Yiddish vocalization]:

“We pasken halakhos based on mekoros. The Rambam in the Moreh


Nevukhim, and the Kuzari, [and] the Rabbeinu Bachye – that they should
be entitled to an opinion?! They didn’t get the straight Torah from the
Ribbono Shel Olam. [The Moreh Nevukhim, Kuzari and Rabbeinu Bachye]
have to have mekoros in the Gemara. You can’t pasken dinim based on
what the Rambam writes in the Moreh Nevukhim. You have the find what
are the mekoros of the Moreh Nevukhim. So the mekoros have to be in
Shas – in the Gemara somewhere.”103

99
“The Halakhic Definition of Death,” published in Jewish Bioethics (Hebrew Publishing Company, 1979,
Dr. Fred Rosner & R. J. David Bleich, eds.), pp. 296-302.
100
Contemporary Halakhic Problems IV, p. 340.
101
R. Yosef seriously questions the validity of the derashah that is cited by some Acharonim as a basis for
demanding that kiddush on the first night of Shavu‘ot await the emergence of the stars, seeing as that
scriptural exposition is neither mentioned by the Talmud nor supportive of any point mentioned by the
Talmud. See Yad Mal’akhi no. 144 and Sdei Chemed, Klalei ha-Poskim, 16:50. [Nevertheless, although not
explicitly mentioned by R. Yosef, Mishnah Berurah to Orach Chaim no. 494, §1, and Arukh ha-Shulchan,
Orach Chaim 494, §3, do endorse delaying kiddush on the first night of Shavu‘ot, evidently embracing the
“derashah” in question.] R. Yosef concludes that it is best, if possible, to take cognisance of this
“derashah”, but that according to the letter of the law one may be lenient. Seemingly, the same objection
should apply to Rabbeinu Bachye’s derashah.
102

<http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II>,
22:30-22:55 into the recording.
103
In the opinion of this writer, R. Schachter rhetorically misspoke in his dismissal of Rabbeinu Bachye,
since Maharsha, Chiddushei Aggadot to Shevu‘ot 39a, writes that indeed every Jewish soul [surely
including that of Rabbeinu Bachye] was present at Mount Sinai to receive the Torah straight from the
Ribbono Shel Olam. Rather, what R. Schachter means to say [or should have said] is that Rabbeinu Bachye
– being one of the Rishonim living after the sealing of the Talmud - does not have the authority to innovate
a halakhic derashah on a verse in the Torah.
Additionally, R. Schachter rhetorically misspoke in his dismissal of Kuzari. Firstly, R. Shlomo
Yosef Zevin, Le-Or ha-Halakhah, chapter entitled “Ha-Kuzari ba-Halakhah,” argues that Kuzari is
considered a bonafide source of halakhic authority. [Of course, Kuzari is no more entitled to orchestrate a
derashah on a biblical verse than Rabbeinu Bachye, but where Kuzari offers a halakhic opinion without

40
Actually, R. Soloveitchik anticipates R. Schachter’s frustration by claiming that
Rabbeinu Bachye’s actual source for cardiac activity being a sign of life is the Gemara in
Yoma 85a.104 The problem, however, is that Rabbeinu Bachye never explicitly invokes
Yoma 85a; it is only R. Soloveitchik’s personal speculation to associate Rabbeinu
Bachye’s commentary to Deut. 6:5 with Yoma 85a. Thus, it remains the case that the
proof from Rabbeinu Bachye is difficult.
Alternatively, one might attempt to defend R. Soloveitchik and R. Bleich by
claiming that Rabbeinu Bachye is really amplifying on the Mishnah, Berakhot 54a, which
expounds upon the words “with all your heart” in Deut. 6:5 to mean that one must love
the Holy One, blessed be He, with one’s two inclinations; and “with all your soul” to
mean that one must be willing to give one’s life for the Holy One, blessed be He. Since
the Mishnah juxtaposes these two lessons, Rabbeinu Bachye inferred that they go
together, viz. that the last moment of human life occurs when there is nothing left but
inclination present in the form of cardiac activity. Talmudic juxtaposition is arguably a
proof of interrelationship, as discussed by R. Shlomo Yosef Zevin in Ha-Mo‘adim ba-
Halakhah (fifth edition, 5715), pp. 185-186.105

innovating any derashah, e.g. in identifying the location of the international dateline, R. Zevin believes that
Kuzari is a bonafide authority. As cited by R. Zevin, this is clearly stated by Chazon Ish, Orach Chaim 64.]
Secondly and more importantly, Kuzari – in point of fact – never claims that cardiac activity is a sign of
life. Rather, what Kuzari writes (cited approvingly by Chakham Tzvi) is that a creature cannot live without
a heart. As explained supra, note 7, that issue is irrelevant to the question of whether cardiac activity is a
sign of life. This is the real reason why R. Schachter should have dismissed Kuzari from the brain
death discussion [and perhaps this is what R. Schachter actually means to have said]. Hence, Kuzari will
not be reckoned in this essay as one of the Rishonim who discusses a breathless heartbeat, since he never
does.
Finally, regarding R. Schachter’s dismissal of Moreh Nevukhim, see infra, Section K.
104
In the opinion of this student, the straightforward way for R. Soloveitchik to have advanced such as a
claim would have been to have surmised that Rabbeinu Bachye read the word “heart” in his text of Yoma
85a, and – furthermore – that Rabbeinu Bachye understood the dynamics of the dispute in Yoma 85a
exactly like Rashi to Yoma 85a [as described in Sections B and D of the present essay].
However, R. Soloveitchik’s actual formulation of his claim is at variance from what the student
would have suggested. Namely, what R. Soloveitchik actually writes is that Rabbeinu Bachye rules like the
view in Yoma 85a which says to excavate the upside-down avalanche victim only until the heart. In the
opinion of this student, it is quite unfortunate that R. Soloveitchik (be-mechilat Kevod Torato) needlessly
confused his analysis by taking such a counterintuitive approach. After all, since Shulchan Arukh Orach
Chaim 329:4 rules like the view in Yoma 85a that says to excavate all the way to the nose, R. Soloveitchik
is (inadvertently) relegating Rabbeinu Bachye to irrelevance by aligning him to the other view. [R.
Soloveitchik himself is not oblivious to this paradox, countering that Shulchan Arukh Orach Chaim 329:4
is not absolutely definitive since it is contradicted by Shulchan Arukh Orach Chaim 330:5. Alas, R.
Soloveitchik (be-mechilat Kevod Torato) is confused on the latter point as well, as will be explained infra,
note 131.]
105
Specifically, in context, R. Zevin analyzes a responsum published by the Maharam of Rothenberg (and
variously attributed to either Ritzba or Rabbeinu Gershom) that infers that since the Mishnah, Rosh ha-
Shanah 2a, juxtaposes Tu bi-Shvat with the other “New Year” celebrations on the Jewish calendar, then just
as the other “New Year” celebrations are prohibited in fasting, so too is Tu bi-Shvat prohibited in fasting.
The basis for reading legal significance into such a juxtaposition is the Gemara, Mo‘ed Katan 4a.
Maharam’s responsum is codified as normative by Shulchan Arukh Orach Chaim 572:3.

41
However, it is not clear whether even this latest attempted defense of R.
Soloveitchik and R. Bleich is adequate. One might well counter that the Mishnah in
Berakhot 54a simply juxtaposes the two expositions because the verse itself (Deut. 6:5)
juxtaposes them, and for no other reason. Thus, it remains the case that the proof from
Rabbeinu Bachye is difficult.
Alternatively, one might attempt to defend R. Soloveitchik and R. Bleich by
observing that Rabbeinu Bachye’s commentary on Deut. 6:5 is literally identical to the
Zohar to Parashat Nasso [already cited above in Section B] which declares that the heart
is the last organ to die. However, this would then raise the tumultuous question of
whether we can derive practical Halakhah from the Zohar alone.106 Thus, it remains the
case that the proof from Rabbeinu Bachye is difficult.
Alternatively, one might attempt to defend R. Soloveitchik and R. Bleich by
claiming that Rabbeinu Bachye is actually a restatement of Midrash Rabbah to
Ecclesiastes 1:16. That Midrash presents an exhaustive list of life functions orchestrated
by the heart, based on a panoply of verses from the Pentateuch, Prophets and
Hagiographa.107 One of the life functions identified by the Midrash is that “the heart
loves,” and the Midrash justifies this identification based on Deut. 6:5. We might
hypothesize, then, that Rabbeinu Bachye understood this Midrash to be ultimately
declaring that cardiac function alone is sufficient to grant life to a human, and since Deut.
6:5 is one of the verses marshalled by the Midrash in this enterprise, Rabbeinu Bachye
selected Deut. 6:5 as being representative of the entire Midrash. Indeed, as we will see
later in this essay,108 Ibn Ezra on the same verse of Ecclesiastes 1:16 declares that the
heart – as specifically distinct from the brain – is the source of life. It seems reasonable to

106
See R. Shabtai, Defining the Moment, p. 148, who incorporates by reference more than thirty responsa
of R. Ovadiah Yosef (in Teshuvot Yabi‘a Omer) addressing whether we can derive halakhic conclusions
based on the Zohar alone. R. Shabtai regards an analysis of those many responsa to be beyond the scope of
his book.
See also Chazon Ish, Yoreh De‘ah 4:14 who questions Chakham Tzvi in its totality (as defined
supra, Section C), viz. the ruling of Chakham Tzvi that it is impossible for a creature to survive without a
heart. Duly acknowledging that the Zohar supports [and is marshalled by] Chakham Tzvi, Chazon Ish
remonstrates:

“It is not adjudicated clearly (ein ha-davar mukhra) that a missing heart causes an
animal to be a carrion even when [ostensibly] alive (neveilah me-chaim), for we have
only what the Sages [of the Talmud] said regarding what is a carrion even when
[ostensibly] alive.”

In other words, Chazon Ish casts a doubt on whether the Zohar can add a situation of neveilah me-
chaim that is not mentioned by the Talmud. Mutatis mutandis, the same reservation should presumably
apply to accepting the Zohar’s declaration that the heart is the last organ to die [-a different statement of the
Zohar, a statement of the Zohar supporting Chakham Tzvi in its particularity.]
[N.B. Chazon Ish then adds a second reason to question Chakham Tzvi in its totality, based on the
concept of ke-mancha be-dikula damya. See supra, note 82 and accompanying text, where this claim of
Chazon Ish is critically reviewed.]
107
See Dr. Fred Rosner, The Medical Legacy of Moses Maimonides (KTAV Publishing, 1998), pp. 122-
124, who calls attention to this Midrash and provides an excellent translation. Cf. infra, note 160.
108
Infra, Section L.

42
suggest that Ibn Ezra may have been inspired by the Midrash Rabbah on this verse, and it
likewise seems reasonable to propose that Rabbeinu Bachye may have been inspired by
the same Midrash Rabbah.
The fact that Midrash Rabbah can serve as a source of practical halakhah is
reflected in the reality that a minority of poskim authorize a father to recite a full blessing
[sourced purely in the Midrash Rabbah to Genesis 25:27] upon the occasion of his son
achieving the milestone of bar mitzvah.109 And even the majority of poskim who disagree
nevertheless advocate the recitation of the blessing in an abbreviated form. Ergo, this
might render R. Soloveitchik and R. Bleich’s proof from Rabbeinu Bachye more
credible. To that effect, in at least three previous cases that arose before the contemporary
brain death debate (viz. the correct calligraphy for Numbers 25:12 as transcribed in a
Sefer Torah, pronunciation of Hebrew for purposes of mitzvot requiring Hebrew
articulation, and the prohibition against benefiting from the property of Amalek) has
Rabbeinu Bachye’s commentary been cited as a halakhic prooftext by poskim.110 Whether
or not the same should be true for Rabbeinu Bachye’s position on a breathless heartbeat –
given the Midrash Rabbah which might be hypothesized to support Rabbeinu Bachye [in
addition to the already mentioned support from Zohar] – merits further analysis. Until
such analysis occurs, we will cautiously leave the practical halakhic consequence of
Rabbeinu Bachye’s position on a breathless heartbeat as being indeterminate.111

J. THE STATUS OF A BREATHLESS HEARTBEAT X:


RAMBAM, ROSH, RABBEINU SHIMSHON OF SHANTZ

Rambam, Commentary on the Mishnah, Avot 2:9, elucidates the dictum of Rabbi
Elazar ben Arakh that a “good heart” is the path that a human being should pursue.
Rambam explains that the heart is the source of vitality for all the other limbs. R. Shalom
Mordechai Schwadron, Da‘at Torah, Yoreh De‘ah 40, §8, marshals this Rambam as
proof to Chakham Tzvi`s thesis.
The ambiguity with this proof, however, is that Rambam in his Commentary on
the Mishnah [and Da‘at Torah in his citation thereof] may have intended to refer the
notion that a creature cannot live without cardiac activity (i.e. the thesis of Chakham Tzvi
in its totality, as explained in Section C). It is not clear that Rambam necessarily intended
to refer to the notion that a creature can resiliently live with only cardiac activity (i.e. the
thesis of Chakahm Tzvi in its particularity, as explained in Section C), and it is the latter
notion which is essential to the question of a breathless heartbeat.
An entirely different comment of Rambam, Commentary on the Mishnah, viz. his
commentary to Ohalot 1:6, has also been invoked with respect to a breathless heartbeat,

109
For a list of poskim on both sides of the bar mitzvah debate, see R. Simchah Rabinowitz, Piskei
Teshuvot al Mishnah Berurah Chelek Sheni (Jerusalem, 5762), pp. 907-908.

See R. Akiva Eger, Teshuvot Rabbi Akiva Eger 1:75; R. Ovadiah Yosef, Teshuvot Yabi‘a Omer VI,
110

Orach Chaim no. 11; and R. Shlomo Yosef Zevin, Ha-Mo‘adim ba-Halakhah, p. 212.
111
There is no risk of halakhic error in being overly cautious in this regard, since in any event other
Rishonim are being marshalled by this essay to doubtfully treat a breathless heartbeat as a sign of life. Cf.
infra, note 128.

43
this time with the opposite prima facie conclusion. Namely, the Mishnah equates
decapitation with death, comparing the convulsing of a decapitated creature to the
spasmodic motion of a disembodied lizard’s tail. Rambam elucidates that the reason the
lizard’s tail moves is because the power of locomotion does not arise from a central
source, but rather is diffuse throughout the creature. Capitalizing upon this Rambam,
several scholars argue that a breathless heartbeat, by virtue of it exhibiting diffuse power
of locomotion (viz. power of locomotion that is not controlled by the central nervous
system), does not grant any life to a creature.112
However, be-mechilat Kevod Toratam of these scholars, this prima facie
conclusion reflects an erroneous conflation of two separate ideas in the Mishnah, and
hence a fundamental misreading of Rambam’s Commentary on the Mishnah. Rambam
does not write that a decapitated creature is dead because the power of locomotion is
diffuse. Rather, Rambam writes that the reason the lizard’s tail moves – despite the fact
that the lizard’s tail is already known to be dead [the actual cause of death being
disembodiment, and it is this disembodiment which the Mishnah establishes to be the
halakhic equivalent of decapitation113] – is because the nature of a disembodied tail is to
experience diffuse power of locomotion. Thus, Rambam’s quoted comments do not
support declaring a brain dead patient dead, where the heart has not been disembodied.114

112
R. Nachum Rabinovitch, Tradition 9:4 (Spring 1968), “What is the Halacha for Organ Transplants?”; R.
Gedaliah A. Rabinowitz, interview at <http://www.hods.org>; R. Avraham Steinberg, Encyclopedia
Hilkhatit Refu’it VI, p. 36, footnote 73; R. Moshe David Tendler, Responsa of Rav Moshe Feinstein:
Translation and Commentary, p. 70.
113
There is no specific reason given by Rambam why the Mishnah equates decapitation with tail-
disembodiment. To that effect, we will see infra, Sections K and O, two possible alternative reasons why
decapitation is equated with tail-disembodiment:

(a) The Gemara, Sukkah 3a, establishes (as a Halakhah le-Mosheh mi-Sinai) that the minimum
quantitative measurement of a Jew’s presence in the sukkah, in order to fulfill the mitzvah of
yeshivat sukkah, is the Jew’s head and majority of his body (rosho ve-rubbo). Hence, this concept
would presumably equate decapitation with tail-disembodiment: a decapitated creature lacks rosho
ve-rubbo, and likewise a disembodied tail lacks rosho ve-rubbo.
(b) Some poskim interpret the episode of the High Priest analyzed by Chullin 21a as establishing that
central nervous system failure constitutes the death of a creature. [Indeed, this is the very claim
that R. Rabinovitch et al attribute to Rambam’s remark in Commentary on the Mishnah, Ohalot
1:6. However, be-mechilat Kevod Toratam, R. Rabinovitch et al err in their reading of Rambam’s
Commentary on the Mishnah. Rambam only explains why the lizard’s tail moves; Rambam does
not explain why decapitation is equated with the disembodied lizard’s tail. It is rather other
poskim – as distinct from Rambam’s Commentary on the Mishnah – who interpret Chullin 21a to
mean that central nervous system failure constitutes death. See infra, Section O.]
114
R. Bleich, Be-Netivot ha-Halakhah III, p. 122; and R. Shabtai, Defining the Moment, pp. 104-105, 267,
allude to this accurate reading of Rambam. R. Aryeh Klapper, “Brain Death and Halakhah: A Footnote
with Uncertain Implications,” <http://www.torahleadership.org/categories/miketz2016.pdf>, renders the
same refutation of R. Rabinovitch et al even more explicit.
Cf. the 5770 RCA Vaad Halacha study, pp. 32-34 which proposes a creative challenge to R.
Rabinovitch et al, based on Tosefot Rid. As will be explained infra, Section T, that creative challenge is a
non sequitur. Nevertheless, R. Klapper’s refutation of R. Rabinovitch et al. certainly vindicates the
conclusion of the 5770 RCA Vaad Halacha study (p. 34) that the approach of R. Rabinovitch “can no
longer be part of the Halachic process.” I.e. the 5770 RCA Vaad Halacha study reached the right

44
To elaborate: Rambam could not possibly have been establishing a rule that any
creature suffering central nervous system failure is dead, since Rambam prefaces his
remarks with the statement “this occurs to a few species of animals” (yikreh zeh li-kzat
minei ba‘alei chayim). Accordingly, Rambam is explaining why the disembodied lizard’s
tail moves [a phenomenon limited to a few species of animals], not why a decapitated
creature is dead.
Furthermore, upon careful reflection, it is seems to this student that – quite the
contrary – an earlier, opening comment in Rambam’s commentary on the very same
Mishnah may arguably serve as a source that a breathless heartbeat is indeed a sign of
life. Namely, Rambam begins his commentary on Ohalot 1:6 by quoting Sifrei to
Numbers 19:13 [“whoever touches the corpse of a human soul that dies”] which derives
from the pleonasm “that dies” that a human being does not convey corpse contamination
until the moment that he actually dies. [This Sifrei is likewise quoted by Rambam in his
Mishneh Torah code, Hilkhot Tum’at Met 1:15.] Rambam does not cite the Sifrei in full,
but an examination of the original source reveals that Sifrei considers any fluttering
(mefarper) of the human being to represent a sign of life. Presumably, this would include
a heartbeat, and – arguably – since Rambam cites the beginning of this Sifrei in his
Commentary to Ohalot 1:6 [as well as in his code, Hilkhot Tum’at Met 1:15], this means
that Rambam concurs with the entirety of Sifrei, including the presumed provision that a
heartbeat is a sign of life.115
Admittedly, this particular Sifrei is never cited by the Talmud, and thus R.
Schachter’s critique of invocation of Rabbeinu Bachye’s extra-talmudic exposition might
prima facie appear to be relevant here, as well.116 Nevertheless, R. Joseph Karo – in both
his Kessef Mishneh to Rambam, Hilkhot Nedarim 12:1 and his Beit Yosef to Tur Yoreh
De‘ah 234:58 – mentions as an obiter dictum that even a Sifrei which is ignored by the
Talmud can still be halakhically normative [since Sifrei features the words of the Sages of
the Talmud].116a This obiter dictum of R. Karo is apparently followed [even if not

conclusion of how decode Rambam, albeit with the wrong methodology (and which is now corrected by the
present essay). This can be cited as one of the sources of confusion in the brain death debate.
115
Indeed, based on this Sifrei, R. Moshe Sternbuch, “Kvi‘at Zman ha-Mavet,” Yeshurun Vol. 27 (Elul
5772), p. 690, argues that a brain dead patient is alive. R. Beniel (referenced supra, note 72), pp. 491-492,
concurs. The identical Sifrei was earlier invoked in the context of brain death by R. Menachem Mendel
Kasher, Divrei Menachem I, Chelek ha-Teshuvot no. 27, p. 241, footnote to right-hand column; by R.
Hershel Schachter, Be-Ikvei ha-Tzon no. 36, sec.11; and by R. David Shabtai, Defining the Moment, p. 131.
R. Sternbuch and R. Beniel do not explicitly claim that Rambam himself [in commentary and/or
code] endorses with the entirety of Sifrei so as to equate mefarper as a sign of life. However, the latter
claim is indeed advanced by R. Nehemia Polen, “Personal Identity in Death: An Aggado-Halakhic
Critique” (published in Halakhic Realities: Collected Essays on Organ Donation, R. Zev Farber, ed.,
Maggid Books, 2017), thereby supporting the main text presently adorned by this footnote.
116
See supra, note 102 and accompanying text.
116a
This methodological approach of Kessef Mishneh/Beit Yosef is highlighted by R. Yitzchak Yosef, Ein
Yitzchak, Vol. 1 (Jerusalem, 5774), pp. 344-345. However, it seems to this student that the methodological
approach of Kessef Misheh/Beit Yosef is actually more nuanced that a preliminary reading of Ein Yitzchak
might indicate, as follows. Rambam, Hilkhot Nedarim 12:1, rules that – unlike a husband’s jurisdiction to
nullify his wife’s vows who is limited to vows of personal affliction [or which interfere with marriage] – a
father has full jurisdiction to nullify his daughter’s vows. Rambam’s ruling is contrary to Sifrei to Numbers

45
explicitly identified] by the analysis of R. Moshe Feinstein, Iggerot Mosheh, Yoreh
De‘ah II, nos. 44-45, regarding the Sifrei to Deut. 17:15 which forbids appointing a lady
as a Jewish monarch, and its implications on whether a lady can be appointed as a
kashrut supervisor. [Paradoxically, that same volume of Iggerot Mosheh also contains
two responsa devoted to the definition of death (nos. 146 and 174), neither of which
mention Sifrei to Numbers 19:13.117] At all times, R. Feinstein takes for granted that the
halakhah follows Sifrei to Deut. 17:15; the only question with which R. Feinstein
struggles is whether the Sifrei’s normative ban on a Jewish queen should also be extended
to a lady serving as a kashrut supervisor. Taking a more equivocal approach, R. Bentzion
Meir Chai Uziel, Teshuvot Mishpetei Uziel III, Choshen Mishpat no. 6, vacillates whether
or not a Sifrei ignored by the Talmud is normative, but even he would appear to
acknowledge that – in the final analysis – such a Sifrei must be respected as a matter of
caution.118 In a somewhat analogous manner, R. Yitzchak Hutner published a 40-page

30:17, yet in a subsequent responsum Rambam defends himself by claiming that Sifrei to Numbers 30:17 is
not normative because it is ignored by both the Talmud Bavli and Talmud Yerushalmi as well as by the
Tosefta. Kessef Mishneh/Beit Yosef overrules Rambam’s position in favour of the countervailing position of
Rosh, Ran and Ramban [to follow Sifrei to Numbers 30:17, that even a father is limited to nullifying vows
pertaining to personal affliction], because (a) even a halakhah found only in the Sifrei and not in the
Talmud or Tosefta can still be normative [contrary to the claim of Rambam’s responsum], as evident by the
fact that on other occasions Rambam does codify halakhot found only in Sifrei(*) and (b) in this particular
case, the halakhah is found not only in the Sifrei but also in the Yerushalmi [contrary to the claim of
Rambam’s responsum]. Thus, it emerges that Kessef Mishneh/Beit Yosef’s conclusion [to champion Rosh,
Ran and Ramban] is based on two arguments, one of which is that even a Sifrei which is ignored by the
Talmud is normative, but another of which is unique to the case of vow nullification [because here it is
argued that even the Yerushalmi concurs with Sifrei]. For this reason, the sentence adorned by the present
footnote is careful to emphasize that Kessef Misheh/Beit Yosef’s methodological approach represents an
obiter dictum.

(*)=Although Kessef Mishneh/Beit Yosef in Hilkhot Nedarim does not offer specific examples of such other
occasions, a clear such instance is Rambam, Hilkhot Melakhim 1:5, who codifies the Sifrei to Deut. 17:5
which forbids appointing a lady as a monarch. Indeed, Kessef Mishneh to Hilkhot Melakhim 1:5 remarks –
with a one-word comment – that the latter Rambam is based on Sifrei.
117
On the other hand, we will hypothesize infra, note 141 and accompanying text, that Teshuvot Chatam
Sofer, Yoreh De‘ah 338 – which is based on Moreh Nevukhim – is, in turn, based on the Sifrei. If this
hypothesis is correct, then it follows that since R. Feinstein does approvingly reference this same Chatam
Sofer in both of his responsa devoted to the definition of death in this volume of Iggerot Mosheh (viz.
Yoreh De‘ah II), then R. Feinstein implicitly references this Sifrei.
Furthermore, even if one rejects the hypothesis offered infra, note 141 (viz. that R. Feinstein
implicitly references Sifrei) and instead insists on the alternative option that R. Feinstein completely
overlooks the Sifrei to Numbers 19:13 in his responsa on the definition of death, this would not necessarily
detract from the normative nature of the Sifrei. On the contrary, one might hypothetically argue that this
detracts from the normative nature of R. Feinstein’s responsa on brain death. See infra, notes 185-187, 282
with accompanying text, for an independent demonstration of three absolute errors that R. Feinstein (be-
mechilat Kevod Torato) renders in his responsa on the definition of death, such that it is possible that R.
Feinstein’s oversight of the Sifrei could be reckoned as a fourth such error, be-mechilat Kevod Torato (if
one insists on rejecting the hypothesis offered infra, note 141).
118
R. Uziel, p. 35, s.v. aval, writes as follows:

"But our investigation shall be whether the words of Sifrei and [their attendant]
codification in Rambam are a decisive halakhah, or whether there are compelling proofs

46
work in 5698 analyzing the halakhic expositions of the Sifra that are ignored by the
Talmud,119 and – while he never published a comparable essay on the Sifrei – one may
presumably infer from R. Hutner that even those expositions of the Sifrei that are ignored
by the Talmud can still be halakhically normative.120 Indeed, while the Talmud itself
ignores Sifrei to Numbers 19:13, both Rosh and Rabbeinu Shimshon of Shantz cite it
approvingly in their respective commentaries to Ohalot 1:6, with both specifically
remarking that it includes mefarper.121
R. David Pardo, in his commentary on this Sifrei, posits an exception to fluttering
representing life. Namely, in a patient decapitated according to the parameters defined by
the Gemara, Chullin 20b-21a, the patient is dead despite the subsequent convulsing. R.
Naftali Zvi Yehudah Berlin, Emek ha-Netziv commentary on Sifrei to Numbers 19:13,

to demolish this as the halakhah. At first glance, it would seem that one should say that
since this halakhah [professed by Sifrei to Deut. 17:15] is not mentioned in the Talmud -
neither in the Mishnah nor in the Gemara - and since this halakhah of the prohibition
against appointing a lady as a communal leader applying even today is not stated in the
words of the poskim [other than Rambam], behold this is a rejected halakhah."

Later, however, Mishpetei Uziel continues, p. 36, s.v. ve-im,

"And if the heart still hesitates regarding the matter, and indeed such must be, and not to
reject the Sifrei and [attendant] codification of Rambam with proofs and inferences so
long as we have not found an explicit [talmudic source] against them..."

Thus, whereas Mishpetei Uziel is first inclined to reject a Sifrei that is ignored by the
Talmud, Mishpetei Uziel subsequently advocates hesitation to not reject a Sifrei that is ignored by the
Talmud, so long as we have not found an explicit talmudic source against the Sifrei. [In what
retrospectively emerges as an amazing instance of lashon nofel al lashon (to borrow the expression from
Rashi to Numbers 21:9), R. Uziel employs the expression “and if the heart still hesitates” regarding a
methodological issue which – as the present essay illustrates – ultimately is relevant to the question of
whether the heart is considered a sign of life.]
119
Available at <http://www.hebrewbooks.org/41263>.
120
After all, just as Sifra is the halakhic Midrash book for Leviticus, so too Sifrei is the halakhic Midrash
book for Numbers and Deuteronomy. Cf. the Yetziv Pitgam liturgy for the second day of Shavu‘ot, which
includes the following passage: “I seek permission from Him, and afterward from [His] people who know
Halakhah, Mishnah, Tosefta, Sifra and Sifrei.” That liturgical passage is almost surely a rhetorical
paraphrase of the Gemara, Shevu‘ot 41b.
Interestingly, R. Hutner is quoted by R. Bleich, Contemporary Halakhic Problems IV, p. 347, as
having orally ruled that a brain dead patient is alive [consistent with our inference in the main text that R.
Hutner would presumably accept the Sifrei to Numbers 19:13 as normative]. However, no elaboration is
offered by R. Bleich whether R. Hutner’s conclusion is based on the Sifrei, and indeed it is demonstrably
the case that R. Bleich himself has overlooked the very same Sifrei on at least one occasion. See infra, note
141.
121
By contradistinction, Me’iri – without citing Sifrei – reaches the same conclusion from the Gemara,
Yoma 23a. See supra, note 94 and accompanying text.
Additionally, among the Acharonim, this Sifrei is cited approvingly by Tosefot Yom Tov, R.
Ovadia of Bartenura, and Mishnah Acharonah, in their respective commentaries to Ohalot 1:6, as well as
by Rashash, commentary to Nazir 43a.

47
comments likewise [albeit without specifically citing Chullin 20b-21a], further
elaborating as follows:

“And this was established as an oral tradition (kim lehu) for the Sages, that
one who dies at the hands of a human [aggressor, viz. through
decapitation], his soul labours difficultly to leave even after he is
definitely dead. But here [in the case of Sifrei] it is dealing with one who
dies on his own [viz. not through decapitation], and so long as there is any
action of vitality and any kind of motion, it is a clear sign that he is not yet
dead.”

On the other hand, the identical Sifrei is interpreted in a radically different manner
by a different Acharon, viz. R. Yisrael Lipshutz, Tiferet Yisrael commentary to Ohalot
1:6. According to Tiferet Yisrael, all the Sifrei means to communicate is that a person
does not die until respiratory arrest, as per the Gemara, Yoma 85a. Tiferet Yisrael claims
that Sifrei excludes all fluttering as being a sign of life [when a patient is not breathing].
At first glance, Tiferet Yisrael seems unfathomable, because Tiferet Yisrael’s
claim is contradicted by a plain reading of the Sifrei, which clearly includes fluttering as
a sign of life [other than a case of decapitation, as per the caveat noted by R. Pardo and R.
Berlin]. Moreover, according to Tiferet Yisrael, why is it necessary to have two biblical
expositions to establish that death is based on respiratory arrest [viz. Genesis 7:11 cited
by Yoma 85a, and Numbers 19:13 elaborated by Sifrei]?122
Accordingly, if we are to rescue Tiferet Yisrael, it seems to this writer that Tiferet
Yisrael must be deciphered as follows. We will see later in this essay123 that Rosh [in his
halakhic codifications on both Tractates Menachot and Chullin] rules in accordance with
the concept of physiological decapitation bespoken by Chullin 21a, viz. that a patient is
be dead even in the face of continued cardiac activity if he suffers complete physiological
failure of the brain. This would contradict Rosh’ commentary to Ohalot 1:6 which
recognizes fluttering as a sign of life, and – given the contradiction – Rosh becomes a
“wild card Rishon” on the status of a breathless heartbeat, analogous to Rashi124 and
Ran.125 Namely, one way of resolving the contradiction is to explain that Rosh’

122
Although one might prima facie attempt to answer that – according to Tiferet Yisrael – Numbers 19:13
is required to teach that a human being does not convey corpse defilement until he actually dies [for this
concept is indeed articulated by Sifrei to Numbers 19:13], upon further reflection this proves to be an
implausible solution, because the Gemara, Nazir 43a, provides a completely different biblical exposition
from which we actually know that a human being does not convey corpse contamination until he actually
dies. Apparently, then, the ultimate purpose of Sifrei to Numbers 19:13 is not to teach that a human being
does not convey corpse defilement until he actually dies, but rather the ultimate purpose of Sifrei to
Numbers 19:13 is to teach that fluttering is a sign of life. Ergo, if Tiferet Yisrael interprets the “fluttering”
of that Sifrei to only mean breathing, why do we require two separate biblical expositions (viz. Genesis
7:11 and Numbers 19:13) to the same effect?
123
Infra, Section O.
124
See supra, Section E.
125
See supra, Section F.

48
commentary to Ohalot establishes that all fluttering [including a breathless heartbeat] is a
sign of life provided that there is still hypothalamic-pituitary function in the patient’s
brain. According to this resolution, Rosh’ halakhic codifications [on Menachot and
Chullin] which recognize physiological decapitation speak only of a patient who has lost
all brain function, including hypothalamic-pituitary function.126 A fundamentally
different resolution would be to explain that Rosh’ halakhic codifications [on Menachot
and Chullin] recognize physiological decapitation so long as the two traditionally
recognized functions of the brain [catalogued above, Section A] have irreversibly ceased,
viz. respiration and consciousness. According to this alternate resolution, Rosh’
commentary to Ohalot only recognizes fluttering as a sign of life when it is fluttering that
is consciously directed. Indeed, according to this alternate resolution, this is the purpose
of Sifrei to Numbers 19:13, viz. to establish consciousness as a sign of life. Thus,
according to this alternate resolution, what Rosh is ultimately positing is that death is
based on a compound definition involving two conditions: irreversible cessation of
consciousness [based on Sifrei to Numbers 19:13] and irreversible apnea [based on
Genesis 7:11 as expounded by the Gemara, Yoma 85a].127 Ergo, it seems to this student
that Tiferet Yisrael espouses the latter reconciliation of Rosh’ contradictory comments.,
and when Tiferet Yisrael writes that “fluttering” is excluded as a sign of life, Tiferet
Yisrael means “movements not consciously directed by the brain and not related to
respiration” are excluded as a sign of life.
In sum total, Rosh contradicts himsef, and so he is a “wild card Rishon” like
Rashi and Ran. On the other hand, Rambam and Rabbeinu Shimshon of Shantz –
regarding whom there is no evidence of self-contradiction – convey the impression that
they accept Sifrei to Numbers 19:13 in its straightforward manner, viz. as establishing a
breathless heartbeat to be a sign of life.128 Yet, R. Naftali Zvi Yehudah Berlin and R.
David Pardo, in their respective commentaries upon that Sifrei, both independently write
that decapitation is an exception to the principle enunciated by that Sifrei. Thus, we will
need to carefully examine the Gemara, Chullin 20b-21a [which defines the parameters of
decapitation] in a future section, so as to understand the parameters of when Sifrei
applies.
In the next section, we will turn our attention to how a different book written by
Rambam, viz. his Guide to the Perplexed (Moreh Nevukhim), addresses a breathless
heartbeat.

126
This resolution parallels how R. Auerbach/R. Bleich/R. Zilberstein would resolve the contradiction in
Rashi. See supra, Section E. [Note, however, that the alternative resolution that will presently be outlined
in the main text does not parallel the alternate resolution that was offered in the context of Rashi. The
reason for the latter non-parallelism is because Rosh – unlike Rashi – refers to the concept of fluttering, and
so this cannot be explained by appealing to any misunderstanding of cardiac physiology on the part of
Rosh. The fluttering recognizes by medical science today is entirely equal to the fluttering recognized by
the medical science in the time of the Rosh.]
127
As we have seen supra, Section A, this is indeed R. Linzer’s response to R. Willig’s objection.
128
As such, we might conjecture that this Sifrei itself may have also been the source for Rabbeinu Bachye’s
comment on Deut. 6:5 (analyzed supra, Section I) that the heart is the last organ to die. Nevertheless, since
this is only conjecture on the part of the present essay, we will leave the normative weight of Rabbeinu
Bachye’s comment as an unsolved mystery.

49
K. THE STATUS OF A BREATHLESS HEARTBEAT XI:
MOREH NEVUKHIM

Rambam, Moreh Nevukhim, Book I, chs. 39 and 72, is cited approvingly in the
responsum of Chakham Tzvi analyzed in Section A above. Furthermore, an entirely
separate passage of Moreh Nevukhim (Book I, ch. 42) is cited by R. Moshe Sofer’s
medicolegal responsum on the definition of death (Teshuvot Chatam Sofer, Yoreh De‘ah
no. 338). These two comments of Moreh Nevukhim have potentially generated confusion
in the brain death discussion, because no author [prior to the publication of this present
essay] has ever observed that the two comments of Moreh Nevukhim are actually
independent and unrelated.129 Furthermore, as cited above in Section I (in the context of
Rabbeinu Bachye), R. Hershel Schachter has protested against citing the Moreh
Nevukhim altogether in the context of brain death. Therefore, in an attempt to clarify each
passage of Moreh Nevukhim, the following section of this essay will analyze each of the
separate passages in Moreh Nevukhim as they relate to a breathless heartbeat.
Moreh Nevukhim (Book I, ch. 39) writes that it is impossible for either a human
being, or any creature belonging to the animal kingdom, to live without a heart. In this
regard, Moreh Nevukhim (Book I, ch. 72) elucidates the commandment of Deut. 6:5 to
love the Holy One, blessed be He, “with all your heart.” This means that a Jew must
employ all of his physiological powers to love the Holy One, blessed be He, since human
life depends upon the heart.130 Teshuvot Chakham Tzvi, Yoreh De‘ah no. 77 cites these
words of Moreh Nevukhim (Book I, chs. 39 and 72) as normative, one of the many proofs
Chakham Tzvi marshals to demonstrate that it is impossible for a chicken to live without
a heart. Yet, as established in Section A of the present essay, Chakham Tzvi’s responsum
in its totality is irrelevant to the question of a breathless heartbeat, and so this passage of
Moreh Nevukhim (which only relates to Chakham Tzvi’s responsum in its totality) is
likewise irrelevant to the question of a breathless heartbeat.
On the other hand, a completely different passage in Moreh Nevukhim, viz. Book
I, ch. 42, is indeed potentially relevant to the question of a breathless heartbeat. Namely,
in the latter passage (Book I, ch. 42), Rambam debates the Andelusian scholars regarding
the recovery of the Ben ha-Tzorfatit described by I Kings 17:17-24. According to
Rambam himself, the boy was halakhically dead and was subsequently miraculously

129
Adding to the confusion is that – within Book I of Moreh Nevukhim – ch. 42 (cited by Chatam Sofer) is
obviously [bibliographically] located between ch. 39 and ch. 72 (cited by Chakham Tzvi). Neverthless, a
careful examination reveals that the two passages of Moreh Nevukhim are unrelated. The passage consisting
of ch. 39 and ch. 72 is completely separate from the passage consisting of ch. 42 [notwithstanding the
bibliographic fact that ch. 42 interposes between ch. 39 and ch. 72.] This can be cited as one of the
legitimate causes for confusion in the brain death debate.
130
Although this elucidation of Rambam appears prima facie to be remarkably similar to that offered by
Rabbeinu Bachye (discussed supra, Section I), it is not the same. Rambam is simply commenting that a
person’s life force resides in the heart, an entirely reasonable restatement of the Mishnah, Berakhot 54a,
that the human inclination resides in the heart. By contradistinction, Rabbeinu Bachye is (ostensibly)
offering a novel derashah on Deut. 6:5, viz. that human life can exist even when only the heart and no other
organ functions. Arguably, then, there is ample reason to accept Rambam’s elucidation while
simultaneously refusing to admit Rabbeinu Bachye’s exposition as evidence.

50
resurrected. The Andelusians, on the other hand, maintain that the Ben ha-Tzorfatit was
not halakhically dead; rather, he was in respiratory arrest but still maintained a pulse. In
analyzing the comments of the Andelusians, Rambam clearly writes that – according to
the predicament that they portray – the Ben ha-Tzorfatit was still alive by virtue of his
pulse. Thus, for Moreh Nevukhim, a breathless pulse is a sign of life. [And since we now
know that pulse is caused by heartbeat, this – in turn – means that a breathless heartbeat
is a sign of life.]
R. Moshe Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah 338, s.v. ve-hineh ha-
Rivash, cites these words of Moreh Nevukhim (Book I, ch. 42) and then proceeds to rule
in the immediately following paragraph (s.v. aval kol she-achar she-mutal): “but
whenever [the patient] is lying as an inanimate stone and has no pulse, if afterward
breathing ceases, we have only the words of our holy Torah that [the patient] is dead.”
Further in the same paragraph, R. Sofer reconciles this proposition with the Gemara,
Niddah 69b, which indicates that outside observers risk misdiagnosing death until a
corpse decomposes, only after which can death may be pronounced with certainty. R.
Sofer explains that the fear of misdiagnosing death expressed by Niddah 69b is only true
for unsophisticated observers, but the expert trained members of the Chevra Kadisha
know to look for the combination of respiratory arrest and circulatory arrest, which is
sufficient to determine death, without need to wait for decomposition.
Seemingly, then, Chatam Sofer understands Moreh Nevukhim (Book I, ch. 42) to
be declaring that circulation is a sign of life, and Chatam Sofer is ruling accordingly that
the Chevra Kadisha does not pronounce death until the combination of both respiratory
arrest and circulatory arrest [as well as the patient lying inanimate like a stone].
However, Chatam Sofer’s responsum is written in a self-contradictory manner.
Although (as now catalogued) he refers three times to circulatory activity being a sign of
life, earlier in the responsum (before Moreh Nevukhim is mentioned) he refers to
respiratory arrest as being the definition of death. Namely, in the paragraph s.v. ve-
nechazei anan, Chatam Sofer submits that the Oral Torah contains a bioethical definition
of life and death. This definition is either a Halakhah le-Mosheh mi-Sinai, or a tradition
the sages of the Talmud garnered from the physicians whom they consulted, or a
scriptural exposition on the basis of Genesis 7:22. In this paragraph, Chatam Sofer
professes that ha-kol talui be-neshimat ha-af – everything depends upon the breathing of
the nose.
In the next paragraph (s.v. ve-lomar nafal mapolet shanei), Chatam Sofer declares
that when a person has stopped breathing, we no longer desecrate the Sabbath to save
him, since he is dead. Further in the same paragraph, the Chatam Sofer cites Rambam,
Hilkhot Shabbat 2:19, to the effect that a person is dead when he stops breathing. Chatam
Sofer writes that Rambam meant to preclude the possibility of having to wait until the
body decomposes, as one might have thought on the basis of Niddah 69b. On the other
hand, continues Chatam Sofer, based on a separate passage in Rambam (Hilkhot Avel
4:5), [which is itself based on the Gemara, Shabbat 151b,] we must wait “a little bit of
time” after respiratory arrest in order to declare a patient dead, lest the patient actually be
in a state of iluf [which is literally translated as swoon, and is actually the same term for
misdiagnosis of death as that employed by the Gemara, Niddah 69b].131

131
Yet, although never explicitly enunciated by Chatam Sofer, is is clear to this student that in the case of
the avalanche victim, Chatam Sofer declares him dead immediately upon the detection of breathlessness,

51
Thus, it emerges that Chatam Sofer seemingly contradicts himself as to the
definition of death. First he seems to write three times that cessation of respiration is the
definition of death.132 But then he rules another three times that death occurs when and
only when the cessation of respiration is accompanied by cessation of heartbeat. 133
In any event, leaving aside how to resolve the somewhat self-contradictory words
of Chatam Sofer, it is clear that Chatam Sofer interprets Moreh Nevukhim as regarding
circulatory activity [which we now know to represent a function of cardiac activity] to be
a sign of life. Hence, the question becomes: can we assign halakhic weight to a statement
appearing in Moreh Nevukhim?134 As cited in Section I above, R. Hershel Schachter

even without waiting “a little bit of time.” Were it not so, Yoma 85a should have demanded excavating the
entire avalanche victim on the Sabbath without delay (even after no breathing is detected at the nose), for
perhaps the victim is in a swoon. Evidently, the combined factors of (a) the medical history of the intense
trauma the patient experienced during the avalanche plus (b) the diagnostic finding of breathlessness during
excavation, when taken together, create a legal reality of 100% certainty of death without any possibility of
iluf. Thus, Shabbat 151b is inapplicable to the avalanche case of Yoma 85a. The fact that Chatam Sofer
intended this message without explicitly enunciating it can be cited as one of the legitimate factors for
confusion in the brain death debate. [See, for example, R. Aharon Soloveitchik (cited supra, note 104)
who misses this essential distinction, erroneously claiming that Rema to Shulchan Arukh Orach Chaim
330:5 (who forbids performing a postmoterm C-section for fear of having misdiagnosed the mother’s death,
an extension of Shabbat 151b) ostensibly contradicts Shulchan Arukh Orach Chaim 329:4 (which codifies
Yoma 85a).]
In summary, then, Chatam Sofer envisages two distinct types of declaration of death [besides the
special case of decapitation, never mentioned by Chatam Sofer and instead to be analyzed further in the
main text of the present essay]: (i) standard death, where the patient becomes progressively weaker and
ultimately stops breathing. Here, Shabbat 151b applies to forbid burying immediately, lest the patient have
experienced iluf; (ii) death by avalanche, where Yoma 85a directs us to declare him dead immediately upon
detection of breathlessness.
N.B. The foregoing two paragraphs within this footnote describe that the scientific reality as
envisaged by Chatam Sofer. Contemporary poskim, however, have ruled that even a breathless avalanche
victim is to be completely extricated on the Sabbath without delay, since – in our era – resuscitation
represents a realistic medical possibility, unlike the era of Chatam Sofer. [R. Moshe Feinstein, Iggerot
Mosheh, Yoreh De‘ah II, no. 146, s.v. u-mah she-Kevod Torato ha-Rav dan le-hakel, draws precisely this
distinction between our era and Chatam Sofer’s era. For further discussion, see infra, Section BB.]
Fundamentally, what these contemporary poskim appear to be concluding is that “illness has descended into
the world,” as per the Gemara, Megillah 21a. Namely, in previous eras, human beings were so strong that
they breathed until they died. In our era, we are weaker than our ancestors, and patients stop breathing even
before they die, such that they can still be resuscitated.
132
Once in the paragraph that begins with the words ve-nechazei anan and twice in the paragraph that
begins with the words ve-lomar nafal mapolet shanei.
133
Once in the paragraph that begins with the words ve-hineh ha-Rivash and twice in the paragraph that
begins with the words aval kol she-achar she-mutal ke-even domem.
134
It is true that R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 146, absolutely cites Moreh
Nevukhim (as translated supra, Section D, text accompanying note 49). However, there, R. Feinstein is
referring to the passage of Moreh Nevukhim cited by Chakham Tzvi, not the passage of Moreh Nevukhim
cited by Chatam Sofer. As explained in the opening two paragraphs of the present section of the essay,
those two passages of Moreh Nevukhim are completely unrelated.
Now, one might still remonstrate that – granted that R. Feinstein refers to the Moreh Nevukhim
cited by Chakham Tzvi (and not the Moreh Nevukhim cited by Chatam Sofer) – nevertheless does not the
fact that R. Feinstein cited the Moreh Nevukhim altogether prove that Moreh Nevukhim can serve as a
source for a halakhic precedent? This question appears to require further analysis, since – as explained

52
insists that we cannot, and instead we must find the sources in the Gemara that stand
behind the halakhic statements of Moreh Nevukhim.135 Indeed, addressing a completely
separate issue, R. J. David Bleich explicitly wrote this student that the words of Moreh
Nevukhim are not always dispositive.136

supra, note 130 – the source for the Moreh Nevukhim cited by Chakham Tzvi can be readily traced to the
Mishnah (Berakhot 54a), such that there is no difficulty accepted this particular comment of Moreh
Nevukhim (as distinct from the Moreh Nevukhim cited by Chatam Sofer, which is far more novel).
Further magnifying the mystery is that R. Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 132,
rules that the halakhah follows Chatam Sofer, but offers no discussion whatsover of Moreh Nevukhim. [It is
true that in his previous responsum Yoreh De‘ah II, no. 146, R. Feinstein likewise cites Chatam Sofer
approvingly, but there – as already mentioned – the Moreh Nevukhim explicitly embraced by Iggerot
Mosheh is the Moreh Nevukhim cited by Chakham Tzvi, not the Moreh Nevukhim cited by Chatam Sofer.
See also Iggerot Mosheh, Yoreh De‘ah II, no. 174, which (as well) cites Chatam Sofer approvingly, but
never discusses any Moreh Nevukhim.]
Thus, in grand total, we never find that R. Feinstein explicitly relates to the Moreh Nevukhim cited
by Chatam Sofer, leaving us with a mystery. [This can be cited as one of the legitimate sources of
confusion in the brain death debate.]
135
From the broader context of his remarks, it is clear that R. Schachter accepts as halakhic proof any
statement Rambam offers in his Code or Commentary to the Mishnah, while simultaneously denying such
status to the Moreh Nevukhim. Although R. Schachter does not elaborate on his reasoning why
discriminates among Rambam`s publications, what he appears to be claiming is that Moreh Nevukhim is a
book of philosophy to rescue those who are perplexed, rather than an authoritative compendium of halakhic
rulings.
To that effect, R. Schachter’s critique of relying on Moreh Nevukhim alone is reflected in the
parallel critique of Moreh Nevukhim by Dr. Alan Jotkowitz, “The Intersection of Halakhah and Science in
Medical Ethics: The Approach of Rabbi Eliezer Waldenberg,” Ḥakirah Vol. 19 (Summer 2015), p. 94, who
writes:

“Indeed, it is not clear why the medieval opinion of Rambam should be eternally binding.
Rambam himself was apparently relying not only on Torah wisdom but also on the
medicine of his time as he understood it. Why then shouldn’t modern authorities be
allowed to incorporate contemporary medical knowledge into their halakhic rulings?”
136
The context for this written communication by R. Bleich regarding Moreh Nevukhim is as follows. In
Tradition 46:1 (Spring 2013), R. Bleich features an article analyzing whether the sage Yonatan ben Uziel –
concerning whom the Gemara, Sukkah 28a, reports any bird overflying him when he studied would be
vapourized – would be liable for torts (if the bird were privately owned). This student left a telephone
message with R. Bleich remonstrating that Rashi to Sukkah 28a explains that it was actually the angels who
gathered overhead to hear the lecture who would incinerate the birds, and thus – according to Rashi’s
approach – there should be no room to adjudicate the human lecturer’s liability for direct damages.
In an e-mail on May 9, 2013, R. Bleich responded as follows:

“Rambam, Intro to Chelek, Fifth Principle, says angels have no free will. [We need not
address contradictory comments in the Guide.] By their nature, angels were compelled to
attend the discourse. That is tantamount to a natural effect of a human act. ”

Cf. R. Bleich’s subsequent publication of that article in book form, viz. Contemporary Halakhic
Problems VII, where R. Bleich adds a footnote on p. 410 containing the substantive contents of the e-mail
from May 9, 2013. [However, in the published footnote, R. Bleich does not mention Moreh Nevukhim.
Thus, this student is pleased to benefit the public by presently recapitulating the full text of R. Bleich’s
original e-mail.]

53
Arguably (though not necessarily), R. Shalom Mordechai Schwadron, Teshuvot
Maharsham VI, no. 124, seems to suggest a potential source for the Moreh Nevukhim
cited by Chatam Sofer.137 Maharsham points to the Mishnah, Ohalot 1:6, which states
that decapitated creatures are dead, even though they experience residual movement post-
decapitation (af al pi she-mefarkesin). The Mishnah further rationalizes this by explaining
that the residual movement is like the tail of a lizard that has been separated from the
creature.
Now, reasons Maharsham, a decapitated creature certainly cannot breathe. So, it
should have been obvious to the Mishnah that the creature is dead. Why did the Mishnah
have to superfluously add the phrase “af al pi she-mefarkesin,” and provide the analogy

137
In context, Maharsham cites Chatam Sofer to insist that cessation of respiration is only proof of death
when there is no sign of life in the body to the contrary. What, in fact, constitutes “a sign of life to the
contrary” for Maharsham? In the particular patient whose status is adjudicated by the responsum,
Maharsham refers to three different alternative signs of life, as follows:

(a) In lines 7-8 of the right-hand column, the patient is described as producing a sound, analogous
to that of a gossess.
(b) In lines 12-13 of the right-hand column, the patient is described as experiencing a pulsating
sinew under the knee.
(c) In line 14 of the right-hand column, the patient is described as being warm.

Subsequently, in lines 34-39 of the right-hand column, when providing the rule that “a sign of life
to the contrary” negates the presumption of death, Maharsham specifically identifies (a) alone, viz. sound
production. No mention is made of (b) pulsating sinew or of (c) warm temperature. On the other hand, line
17 of the right-hand column of Maharsham clearly refers to Chatam Sofer, which – in turn – does not
mention sound production, but which does mention pulsation (consistent with a pulsating sinew, and also
consistent with the patient being warm). [Cf. lines 40-42 of the right-hand column, where Maharsham
invokes Yoma 23a as a prima facie proof that fluttering is a sign of life even following respiratory arrest,
although he then torpedoes that proof in lines 44-45 of the right-hand column by countering that Yoma 23a
may be referring to a situation where an apnea test has not been conducted. (As we observed supra, note
94, by contradistinction to Maharsham, the newly published manuscript of Me’iri does in fact accept that
Yoma 23a establishes that fluttering is an intrinsic sign of life under all circumstances, except that the
manuscript of Me’iri was not yet published in the era of Maharsham.)] Additionally, while not addressed in
this specific responsum of Maharsham, elsewhere (as documented supra, Section F) in his Da‘at Torah
commentary on Shulchan Arukh, the author of Maharsham marshals proof from Chiddushei ha-Ran to
Chullin 32b that a breathless heartbeat is a sign of life.
Accordingly, we are left with an ambiguity, with two possible interpretations of Maharsham:

(i) Any of the three alternative signs of life, (a), (b) or (c), including a pulsating sinew,
negate the presumption of death. Thus, Maharsham understands that a breathless pulse is
a sign of life. Ergo, in endeavouring to find a Talmudic source for Chatam Sofer,
Maharsham is de facto discovering a Talmudic source for Moreh Nevukhim.
(ii) Only (a) sound production is ultimately endorsed by Maharsham as an alternative sign of
life that negates the presumption of death. Maharsham does not necessarily arrive at the
same conclusion for a breathless pulse. Accordingly, Maharsham is not necessarily
addressing the Moreh Nevukhim.

On account of this ambiguity within Maharsham, the main text adorned by the present footnote is
careful to specify “arguably (though not necessarily)”. [Cf. R. Nathan Gestetner, Teshuvot Lehorot Natan
XV, no. 82, sec. 7, who misses this ambiguity (be-mechilat Kevod Torato), erroneously claiming that
Maharsham definitely endorses warm temperature as a sign of life.]

54
to the lizard’s tail? This teaches us – suggests Maharsham – that movement is always a
sign of life in all cases other than decapitation. Hence the novelty: here, uniquely in the
case of decapitation, muscular movement is not a sign of life. But otherwise – when a
patient is not decapitated – any muscular movement would indeed represent a sign of
life.138
[While not fully spelled out, the assumption of Maharsham appears to be as
follows. According to Torah law, the minimal measurement of a human being is rosho
ve-rubbo, as per the Gemara, Sukkah 3a, that a person must have rosho ve-rubbo in a
sukkah to be considered dwelling in the sukkah. Decapitation (which separates rosho
from rubbo) thus spells the anatomical destruction of the human being.139 The Mishnah is
accordingly teaching that even though the decapitated body continues to move – which
normally would automatically represent a sign of life – here, uniquely in the case of a
human being who lacks rosho ve-rubbo, the creature is dead. And so the Mishnah has
incidentally informed us that all movement (in a non-decapitated creature, i.e. a creature
that possesses rosho ve-rubbo) is a sign of life. This, then, would arguably represent the
source for Moreh Nevukhim, since pulse may – further arguably– represent a subtle form
of movement.]
However, Maharsham proceeds to retort that the proof from Ohalot 1:6 is not
compelling (ein zeh mukhrach) because “that which there is no breath in the nose when
he is decapitated is because the nose has no further connection with the contingent
organs, and this is not a proof regarding loss of vitality, except that – in any event – since
his spinal column was broken, he is considered dead.”
[The meaning Maharsham’s countervailing retort is not coherently verbalized.
What he appears to be arguing is that – on the contrary – some interpret Ohalot 1:6 as
meaning that the legal status of decapitation can occur even in the presence of rosho ve-
rubbo, viz. even in a situation of “physiological decapitation.” Such an expansive
approach to Ohalot 1:6 would be based on the Gemara, Chullin 20b-21a, (which invokes

138
Maharsham’s proof is copied by R. Bleich, Be-Netivot ha-Halakhah III, p. 107. [N.B. Although R.
Bleich does not cite Maharsham by name on that page, R. Bleich cites Maharsham earlier, on p. 100, and in
immediate juxtaposition to analyzing Moreh Nevukhim (p. 101 of Be-Netivot ha-Halakhah III).] R. Bleich
further strengthens Maharsham’s proof by pointing to the Mishnah, Chullin 37a, which clearly establishes
that pirkus [i.e. convulsive movement] is a sign of life in an animal being slaughtered but which is not yet
decapitated. Thus, the point of Ohalot 1:6 (especially when seen in contrast with Chullin 37a) is that – in
any non-decapitated creature – movement is automatically a sign of life.
Note, however, that R. Bleich’s strengthening of Maharsham’s proof depends upon a Mishnah
only discussing animals and not human beings, thereby raising the question identified supra, Section F.
Pursuant to what is further explained in that section, viz. in light of Chakham Tzvi’s declaration that
whatever constitutes vitality in an animal also constitutes vitality in a human, R. Bleich’s proof appears to
be valid. While it is true that Iggerot Mosheh entertains a contrary possibility according to way Chullin 21a
is elucidated by Rosh, Iggerot Mosheh himself seems to acknowledge that the contrary possibility is highly
questionable.
139
R. Shalom Yitzchak ha-Levi, “Be-Inyan Kvi‘at Rega ha-Mavet,” Yeshurun Vol. 26 (Nissan 5772), p.
637 similarly hypothesizes that decapitation constitutes death because “the shape of his body is nullified”
(batlah tzurat gufo). Likewise, R. Moshe Sternbuch, “Kvi‘at Zman ha-Mavet,” Yeshurun Vol. 27 (Elul
5772), p. 690 hypothesizes that decapitation constitutes death because “the human body is missing” (chaser
be-guf ha-adam).

55
that very Mishnah in Ohalot), as it is interpreted by some opinions (discussed later in this
essay).140]
In any event, it seems to this student that we can actually point to a separate
potential source for Moreh Nevukhim. Namely, as observed in the previous section,
Rambam – in both his commentary to Ohalot 1:6 as well as his Mishneh Torah, Hilkhot
Tum’at Met 1:15 – appears to endorse Sifrei to Numbers 19:13. Since that Sifrei considers
all fluttering to be a sign of human life, this would arguably serve as a legitimate source
for Moreh Nevukhim to reckon a breathless pulse [=a breathless hearbeat] as a sign of
life.141 After all, the author of Moreh Nevukhim is none other than the same Rambam, and
so it is quite logical to surmise that Moreh Nevukhim is itself predicated on the identical
Sifrei.142
Yet, R. Naftali Zvi Yehudah Berlin and R. David Pardo, in their respective
commentaries upon that Sifrei, both independently write that decapitation is an exception
to the principle enunciated by that Sifrei. Thus, we will need to carefully examine the
Gemara, Chullin 20b-21a [which defines the parameters of decapitation] in a future
section, so as to understand the parameters of when Sifrei applies.

L. THE STATUS OF A BREATHLESS HEARTBEAT XII:


IBN EZRA

R. Menasheh Klein, Teshuvot Mishneh Halakhot XIII, no. 221, points to Ibn Ezra,
commentary on Exodus 23:25, as a Rishon who identifies a breathless heartbeat as a sign
of life. There, Ibn Ezra describes every human as being imbued with three souls: the
neshamah residing in the brain, the ru’ach residing in the heart and the nefesh residing in
the liver. Of these three, Ibn Ezra specifies that it is the ru’ach of the heart which

140
Infra, Section O. [N.B. The fact that Maharsham’s countervailing retort is not coherently verbalized can
be cited as one of the legitimate sources of confusion in the brain death debate.]
141
To that effect, this Sifrei will rescue R. Bleich from the attack of R. Steinberg, in their exchange
recorded in Be-Netivot ha-Halakhah III, p. 150. Namely, as described supra, note 138, R. Bleich infers
from Ohalot 1:6 that all motion [including a breathless heartbeat] constitutes a sign of life in a non-
decapitated creature. R. Steinberg objects that this inference is devoid of any exegetical basis (i.e. this
inference is not supported by any derashah). With this Sifrei, we have finally discovered a bona fide
derashah which seems to indicate that all motion [including a breathless heartbeat] is a sign of life. [Cf. R.
Bleich, loc. cit., who – apparently overlooking this Sifrei – answers R. Steinberg with alternative
arguments. See infra, note 160, for a conjectured amplification of one of those alternative arguments.]
142
In a highly speculative manner, one might even hypothesize that Maharsham himself alludes to the
possibility that Sifrei is the source of Moreh Nevukhim. Namely, as we saw supra, note 137, Maharsham
references the Gemara, Yoma 23a, which speaks of fluttering as a sign of life. This is, of course, the
Gemara from which Me’iri derives the halakhic conclusion that fluttering is indeed a sign of life in all cases
other than anatomical decapitation. Granted that – as likewise acknowledged supra, note 137 – Maharsham
never saw the Me’iri, nevertheless perhaps Maharsham was understood that Yoma 23a reflects the identical
lesson conveyed by the Sifrei to Numbers 19:13. [However, this remains a highly speculative reading of
Maharsham, since Maharsham ultimately rejects the applicability of Yoma 23a to the definition of death.
Thus, it is possibly more correct to credit the subsequently published analysis/analyses of R. Kasher, R.
Schachter, R. Shabtai, R. Sternbuch, R. Beniel and/or R. Polen (cited supra, note 115) with the
hypothesis/discovery that Sifrei may be the source for Moreh Nevukhim.]

56
represents the source of life. R. Klein observes that such specificity perforce means that
Ibn Ezra regards cardiac activity to be an independent source of life even in the absence
of neurological activity and/or the absence of hepatic activity, such that – in effect – Ibn
Ezra recognizes a breathless heartbeat to represent a sign of life.
Actually, Ibn Ezra’s claim that every human possesses three souls is parallel to
(le-havdil) the claim of the Noahide physician named Galen.143 Yet, Galen – in turn – is
critiqued by Rambam, Shemonah Perakim, ch. 1, who counters that every human is
endowed by a single soul.144 Without identifying names, this debate [between Ibn Ezra
vs. Rambam] is cited by Ramban (i.e. Nachmanides) in the latter’s commentary to
Genesis 2:7. Ramban explains that the simple meaning of the verse in question more
preferentially supports the notion of a single human soul [like Rambam], whereas
Onkelos’ elucidation – as well as the Gemara, Sanhedrin 65a and the Midrash, Vayikra
Rabbah 32:2 – more preferentially supports the concept of three distinct souls per human
[like Ibn Ezra].145
In any event, the soul quantification dispute between Ibn Ezra vs. Rambam
appears to be entirely metaphysical in nature, with no practical halakhic ramification.
After all, they both agree that a breathless heartbeat is a sign of life: Ibn Ezra as we see in
the present section, and Rambam as we saw above, in Sections J-K.146
On the other hand, placing Ibn Ezra on the same pedestal as Rambam in terms of
reaching a practical halakhic conclusion raises three distinct methodological problems,
none of which are identified by R. Klein (be-mechilat Kevod Torato): (a) Ibn Ezra’s
understanding of cardiac physiology; (b) Ibn Ezra’s stature in psak halakhah; and (c) the
provenance of Ibn Ezra’s commentary on Exodus, as follows.

(a) Ibn Ezra, commentary on Genesis 2:7, describes the heart as being a
respiratory organ, and is cited approvingly by Chakham Tzvi to the same effect. Thus,
whatever Ibn Ezra comments on Exodus 23:25 must be understood in the same light, and
so the objection that R. Reichman raises regarding Rashi [as described above, Section E,
and which was transposed to Ran in Section F] will also apply to Ibn Ezra. In fact, it is
actually easier to defend Rashi and Ran rather than Ibn Ezra on this count, because – as
we additionally saw in Section E – R. Bleich [especially as vindicated by R. Lach] can

143
See R. Reichman, “The Halachic Definition of Death in Light of Medical History” (referenced supra,
note 67), p. 192.
144
R. Reichman, loc. cit., pp. 203-204 apparently overlooks Shemonah Perakim to this effect, but –
no less impressively – correctly cites Rambam’s medical writings as establishing the same point.
145
R. Chaim Dov Chavel, in his Mossad Harav Kook elucidation of Ramban’s commentary, addenda at the
end of the volume, points to R. Saadiah Ga’on (cited by Ibn Ezra to Ecclesiastes 7:3) and R. Shlomo Ibn
Gabirol, Mekor Chaim (fifth gate, sec. 20) as similarly professing that the human being is imbued with
three souls.
146
Indeed, even Rambam – who only acknowledges the existence of a single soul – elsewhere (Hilkhot
Arakhin ve-Charamin 2:4) counts the head, heart and liver as the three organs on which the soul depends.
Seemingly, then, the debate between Ibn Ezra vs. Rambam is largely semantic; viz. what Ibn Ezra calls the
“three souls,” Rambam calls the “three organs on which the one soul depends,” with the slight variation
that Ibn Ezra speaks of “brain” whereas Rambam speaks of “head.” [Cf. infra, note 184c.]

57
uphold Rashi [and Ran]’s understanding of cardiac physiology as being independent of
Chakham Tzvi and hence as being perfectly valid, whereas Ibn Ezra’s understanding of
cardiac physiology is literally identical to that of Chakham Tzvi and hence subject to
exactly the same scrutiny as Chakham Tzvi. Only if we can rationalize Chakham Tzvi [in
terms of “hot air exiting the heart” equalling deoxygenated blood and “cold air entering
the heart” equalling oxygenated blood147] can we identically rationalize Ibn Ezra;
otherwise, we are forced to concede that Ibn Ezra misunderstood the function of the heart
and hence no practical halakhic conclusion can be drawn from Ibn Ezra’s commentary on
Exodus 23:25.
By contradistinction, Rambam faces no such methodological problem, since
Rambam – based on Sifrei to Numbers 19:13 – apparently identifies all fluttering as a
sign of life, and this remains true no matter how one conceptualizes cardiac physiology.

(b) There is actually some question as to whether Ibn Ezra should be reckoned as
a posek. To be sure, Ibn Ezra is quoted by Tosafot in Rosh ha-Shanah 13a, s.v. de-akrivu
[as well as the parallel Tosafot in Kiddushin 37b, s.v. mi-machorat]. However, R. Shimon
ben Tzemach Duran, Teshuvot Tashbetz I, no. 51 – in citing testimony of Ibn Ezra
regarding the proper calligraphy of the kuf letter – declares that:

“Although the sage of blessed memory148 was not a rabbi proficient in the
laws, nevertheless he was kosher for testimony, and from his testimony we
have learned that this is how the original Torah scrolls were [written].”

The clear implication of Tashbetz is that Ibn Ezra cannot be regarded as a


posek.149 Somewhat more mild, but still containing a note of caution, is the remark of
Ramban (i.e. Nachmanides) in the introduction to his own commentary on Pentateuch,
that “with Rabbi Avraham the son of Ezra150 we shall have open rebuke and hidden
love.”

147
See supra, note 72 with accompanying text.
148
I.e. Ibn Ezra.
149
This inference is drawn by R. Ovadiah Yosef, Teshuvot Yabi‘a Omer IV, Choshen Mishpat no. 6, sec. 4.
Yabi‘a Omer’s inference is cited approvingly by R. J. David Bleich, “The Obligation to Heal in the Judaic
Tradition: A Comparative Analysis,” published in Jewish Bioethics (cited supra, note 99), pp. 24-25.
Cf. R. Simchah Rabinowitz, Piskei Teshuvot al Mishnah Berurah Chelek Chamishi (Jerusalem,
5755), p. 252, who incongruously cites Ibn Ezra (commentary to Exodus 23:15) among the list of “poskim”
who rule that eating matzah during Passover after the Seder night(s) constitutes an optional mitzvah. [I.e.,
although – as established by the Gemara, Pesachim 120a – the obligation to eat matzah is only in force
during the Seder night(s), with the balance of Passover carrying a prohibition against eating chamatz but no
concomitant obligation to eat matzah per se, nevertheless everytime a Jew chooses to optionally eat matzah
during the balance of Passover, these poskim declare that a Jew is fulfilling an optional mitzvah.] Alas, this
represents an oversight on the part of R. Rabinowitz (be-mechilat Kevod Torato). An examination of Ibn
Ezra’s actual commentary to Exodus 23:15 reveals that the commentary claims that there is an “obligation”
to eat matzah throughout Passover, clearly an error that is explicitly refuted by the Gemara, Pesachim 120a.
[In point of fact, some contend that Ibn Ezra’s commentary in question is actually a forgery, such that Ibn
Ezra never wrote the suspicious words under investigation. See infra, note 159 and accompanying text.]
150
I.e. Ibn Ezra.

58
Now, R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 114151 does
attribute a “decisive halakhic ruling”152 to Ibn Ezra, based on Ibn Ezra’s commentary to
Genesis 36:31.153 However, it is possible to contextually re-interpret R. Feinstein as
simply refuting (so-called) “Pentateuch critics” [viz. heretics who deny (chas ve-chalilah)
Rambam’s eighth principle of faith] according to the critics’ silly assumptions [as per the
Mishnah, Avot 2:19, “know how to refute a heretic”], not that R. Feinstein is actually
recognizing Ibn Ezra to be a halakhic authority. Namely, some “Pentateuch critics” claim
that Ibn Ezra was himself a “Pentateuch critic,” and R. Feinstein is responding that we
see from Ibn Ezra’s own commentary that Ibn Ezra rejected the notion of “Pentateuch
criticism.”154
In any event, whether or not R. Feinstein intends to seriously recognize Ibn Ezra
as a posek, there is an independent problem with R. Feinstein’s responsum. Viz., R.
Feinstein (be-mechilat Kevod Torato) never accounts for Ibn Ezra’s astonishing claim
(commentary on Deut. 34:1) that the twelve verses of Deut. 34:1-12 were transcribed by
Joshua rather than by Mosheh Rabbeinu.155 [The Gemara, Bava Batra 15a, only records a
dispute in the Sifrei as to whether the eight verses of Deut. 34:5-12 were transcribed by
Mosheh Rabbeinu or by Joshua, but there is no debate in the Gemara regarding the four
verses of Deut. 34:1-4 having been transcribed by Mosheh Rabbeinu. For that matter, R.
Chaim Ben Atar, Or ha-Chaim commentary to Deut. 34:6, decries the heretical error that
(chas ve-chalilah) students of Ibn Ezra can render by studying Ibn Ezra’s commentary to
Deut. 34:1.] Ergo, there may be prima facie reason to suspect Ibn Ezra of failing to
comply with Rambam’s eighth principle of faith (with respect to the four verses of Deut.
34:1-4), and if (chas ve-chalilah) that prima facie impression would prove correct, we
might have to disqualify Ibn Ezra from serving as any source of halakhic information
(quite apart from Tashbetz’ already expressed reservation).156

151
R. Menasheh Klein, Teshuvot Mishneh Halakhot XII, no. 214, claims that Iggerot Mosheh, Yoreh De‘ah
III, no. 114, is a forged responsum that was never written by R. Feinstein. However, R. Klein subsequently
retracts that claim in Teshuvot Mishneh Halakhot XVI, no. 102, where R. Klein duly acknowledges that
Iggerot Mosheh, Yoreh De‘ah III, no. 114 was indeed written by R. Feinstein. [See, also, R. Shabtai
Rappaport’s video testimony on the Halachic Organ Donor Society website at <http://www.hods.org>,
which confirms that the entire sixth volume of Iggerot Mosheh was carefully reviewed and approved by R.
Feinstein prior to publication.]
152
R. Feinstein’s original Hebrew is “din pasuk,” an unusual expression. R. Shnayer Z. Leiman – who
corresponded behind the scenes with R. Feinstein in the events leading to the composition of that Iggerot
Mosheh responsum – has recently explained in an oral lecture that R. Feinstein means to communicate what
is more conventially called “halakhah pesukah,” i.e. a decisive halakhic ruling.
153
There, Ibn Ezra critiques a heretical commentary which slanderously claims that a prophet after Mosheh
Rabbeinu (chas ve-chalilah) edited the text of the Sefer Torah by adding the nine verses of Genesis 36:31-
39. Ibn Ezra rules that the heretical commentary must be vapourized.
154
I am grateful to R. Aryeh Klapper for illuminating my eyes with this insight.

The credit for correctly identifying this problem with R. Feinstein’s responsum goes to R. Marc Shapiro,
155

The Limits of Orthodox T--ology: Maimonides’ Thirteen Principles Reappraised (Oxford, 2004).
156
For a hypothesized suggestion how R. Feinstein might reconcile Ibn Ezra’s commentary to Deut. 34:1
with Rambam’s eighth principle of faith, see Appendix C to the present essay.

59
By contradistinction, Rambam [in both his commentary and code157] faces no
such methodological problem, being recognized as a halakhic authority par excellence.
And, quite obviously, Rambam accepts his own eighth principle of faith.158

(c) There is significant controversy over the provenance of the commonly


published commentary of Ibn Ezra to Exodus, which was first published from manuscript
in 5248. Some scholars contend that Ibn Ezra’s real commentary on Exodus is the more
succinct manuscript published by R. Isaac Samuel Reggio centuries later in 5600,
because it is much more consistent in style and content with the established Ibn Ezra
commentary on Genesis, Leviticus, Numbers and Deuteronomy.159 Importantly, the
succinct commentary of Ibn Ezra on Exodus contains no reference to cardiac activity
representing a sign of life. Thus, it would emerge that – even were Ibn Ezra’s
understanding of cardiac physiology to be hypothetically accepted and even were Ibn
Ezra to hypothetically be regarded as a posek – it is not clear that Ibn Ezra himself
professed that cardiac activity is a sign of life.
By contradistinction, Rambam faces no such methodological problem, the
provenance of both his commentary and code being accepted without caveat.

Because of these three distinct methodological problems with Ibn Ezra, we must
leave the question of whether or not Ibn Ezra to Exodus 23:25 can serve as a proof
regarding a breathless heartbeat for further study.
Actually, an entirely different comment of Ibn Ezra – (apparently160) never before
cited in the brain death debate – appears to better support the contention of R. Klein,
because it avoids one or perhaps even two of the above three methodological problems.
Namely, Ibn Ezra to Ecclesiastes 1:16 writes that the heart – as distinct from the brain –
is the source of human life. Remarkably, Ibn Ezra further professes the correct

157
As potentially distinct from his Moreh Nevukim. See supra, notes 135-136.
158
Likewise, Rambam’s eighth principle of faith is endorsed by Shulchan Arukh Yoreh De‘ah 282:1, which
describes the Sefer Torah as “the trustworthy witness to all who enter the world.” [Indeed, this formulation
of Shulchan Arukh is copied verbatim from Rambam, Hilkhot Sefer Torah 10:11. Similarly, in an e-mail on
Nov. 16, 2009 responding to a question from this student as to whether the halakhah follows R. Moshe
Feinstein to affirm Rambam’s eighth principle of faith, R. J. David Bleich wrote: “The issue was resolved
by Rambam long before R. Moshe.”]
159
See R. Yehudah Leb Fleisher, Mishneh le-Ezra (Vienna, 5686), pp. xi-xxxix. That material is accessible
at <http://www.hebrewbooks.org/34553>.
160
The term “apparently” is parenthetically included, since – as will be presently observed in the main text
– Ibn Ezra’s comment to Ecclesiastes 1:16 is entirely consistent with [and hence may well be derived from]
Midrash Rabbah to the same verse. Ergo, one might conjecture that Dr. Rosner (referenced supra, note
107), in analyzing the Midrash Rabbah, alludes implicitly to this Ibn Ezra. Furthermore, one might
conjecture that R. Bleich, Be-Netivot ha-Halakhah III, p. 150, elliptically refers to the same Midrash
Rabbah [and possibly resultant Ibn Ezra] when [in responding to R. Steinberg’s attack recorded supra, note
141], R. Bleich rhetorically inquires, “who knows all the expositions that Rabbi Akiva expounded upon all
the et words in the Torah?” The reason for the latter conjecture is that the aforementioned Midrash Rabbah
to Ecclesiastes 1:16 is actually paralleled by Midrash Oti’yot de-Rabbi Akiva, ot lamed.

60
embryological fact that the heart is the first physiologically functioning organ in the
developing fetus, a notion which – according to one suggestion of the 5770 RCA Vaad
Halacha study161 – actually emerges from the Gemara, Yoma 85a regarding the definition
of death. Indeed, Ibn Ezra’s comment to Ecclesiastes 1:16 appears entirely consistent
with Midrash Rabbah to the same verse [cited above in Section I]. Since there is no
question regarding the provenance of Ibn Ezra’s commentary to Ecclesiastes,
methodological problem (c) above is thereby resolved. And, arguably, since Ibn Ezra’s
comment is directly supported by Midrash Rabbah on the same verse [as well as by the
Gemara, Yoma 85, according to one suggestion of the 5770 RCA Vaad Halacha study],
there is no need to attribute Ibn Ezra’s words to his (mis)understanding of cardiac
physiology. If so, methological problem (a) would also be obviated. At the end of the
day, however, methodological problem (b) still remains.161a As such, Ibn Ezra will be
cautiously regarded by this essay as one of the “indeterminate Rishonim.”

M. THE STATUS OF A BREATHLESS HEARTBEAT XIII:


RADAK

R. Levi Yitzchak Beniel162 identifies Radak as a Rishon who considers a


breathless heartbeat to represent a sign of life. Namely, I Kings 17:17 describes how the
Ben ha-Tzarfatit became exceedingly ill, “until there was no soul left in him.” Radak
comments ad locum that some explain that the Ben ha-Tzarfatit did not actually die, but
rather that “his breathing arrested, and others could not discern in him any sign of life,
neither in breathing nor in pulsation of the sinews, until his mother thought that he had
died.” From Radak’s formulation, it appears that respiratory arrest alone would be
insufficient to create a presumption of death unless it is also accompanied by circulatory
arrest.
The question therefore becomes whether Radak is deemed to represent a posek
among the Rishonim whose words establish a halakhic precedent, or whether he is a
commentator devoid of any halakhic authority [as some contend regarding Ibn Ezra,
analyzed above, Section L.] Indeed, this student is only aware of one case where Radak’s
words have ever been marshalled as a halakhic precedent [prior to the present brain death
debate]. Viz., R. Meir Dan Plotzki, Kli Chemdah to Exodus 35:27-28, approvingly cites

161
See pp. 24-29 of the 5770 RCA Vaad Halacha study. In footnote 33 of that same passage, the Vaad
Halacha hesitates regarding its own suggestion as follows: “The possible difficulty of this approach is that
it is perhaps projecting knowledge into the world of Chaza”l, which may not have been available yet.”
However, it seems to this student that once one appreciates the point established in the present essay, supra,
note 16, viz. that the Talmud [as the fountain of the Oral Torah] possesses full mastery of scientific truth,
the Vaad Halacha’s hesitation becomes unnecessary, and its original embryological suggestion is
strengthened.
161a
For further discussion of the questionable status of Ibn Ezra as a posek, see R. Yitzchak Yosef, Ein
Yitzchak, Vol. 1, pp. 470-476.
162
Refu’ah ka-Halakhah (referenced supra, note 72), p. 491.

61
Radak’s commentary on II Kings 4:7, where Radak rules that the oil that was
miraculously created for the Shunamite lady was exempt from tithes.163
Given the paucity of discussion regarding the stature of Radak, we will leave the
question of whether or not Radak can serve as a proof regarding a breathless heartbeat for
further study, cautiously leaving him as one of the “indeterminate Rishonim.”164

N. CUMULATIVE SUMMARY OF BREATHLESS


HEARTBEAT SURVEY AND TRANSITION FOR NEXT
PORTION OF PAPER

In the first thirteen sections of this essay (A-M), we have surveyed ten Rishonim
who might prima facie be understood as according significance to a breathless heartbeat,
and so we are now ready to tabulate our results. Of these ten Rishonim, three (Rashi,
Rosh, Ran) have been demonstrated to be “wild card Rishonim,” and four others (Tosafot,
Rabbeinu Bachye, Ibn Ezra and Radak) have been deemed indeterminate, leaving us with
three surviving candidates:

(1) Whereas Me’iri to Yoma 85a is ambiguous, Me’iri to Yoma 23a identifies all
fluttering in a patient [other than one who is anatomically decapitated] as a sign of life.
Thus, it is clear that Me’iri regards a breathless heartbeat as a sign of life, leaving only
the question of whether we can render halakhic questions based on the newly discovered
manuscripts of Me’iri.
(2-3) Whereas Rambam’s commentary on Avot 2:9 is ambiguous, Rambam’s
commentary on Ohalot 1:6 [as well as his Mishneh Torah, Hilkhot Tum’at Met 1:15]
appears to endorse Sifrei to Numbers 19:13, which – in turn – defines all fluttering as a
sign of human life, and presumably this would include a breathless heartbeat. Indeed,
Rabbeinu Shimshon of Shantz, in his commentary to Ohalot 1:6, clearly endorses the
full text of Sifrei, and thus for Rabbeinu Shimshon of Shantz, a breathless heartbeat
appears to be a sign of life.

163
Radak [as well as Kli Chemdah] is also cited approvingly by R. Shlomo Yosef Zevin, Ha-Mo‘adim ba-
Halakhah, p. 158. To that effect, R. Zevin suggests that Radak supports the position orally attributed to R.
Chaim Soloveitchik that a miraculously synthesized vegetable product is disqualified for any mitzvah
purpose which requires a naturally photosynthesized vegetable product. [However, it is not clear from R.
Zevin whether R. Soloveitchik himself was quoting Radak.]
164
R. Beniel (loc. cit.) further proposes that Ramban be marshalled as an additional Rishon who regards a
breathless heartbeat as a sign of life. This is because Ramban, commentary to Genesis 45:26, writes that
Jacob’s heart arrested upon hearing the good news of Joseph’s survival, such that Jacob also stopped
breathing and “he [Jacob] became as though he was dead.” However, be-mechilat Kevod Torato, R.
Beniel’s inference from Ramban is not compelling. Whereas Ramban establishes that cardiac arrest may
lead to death, Ramban does not necessarily inversely establish that cardiac activity is ipso facto a sign of
life in a patient who is already brain dead. It is true that this very same Ramban is cited by Chatam Sofer in
the latter’s responsum defining death (viz. Teshuvot Chatam Sofer, Yoreh De‘ah 338), but there Chatam
Sofer is employing Ramban to demonstrate that cardiac arrest does not constitute death when accompanied
by continued respiratory activity. [As for the obvious problem that it is now medically known that
respiratory activity cannot possibly continue after cardiac arrest, see Appendix B of the present essay.]
Ultimately, then, Ramban never addresses the status of a breathless heartbeat.

62
More explicit than Rambam’s commentary and code is Rambam in his Moreh
Nevukhim, where he writes that a breathless pulse is indeed a sign of life in a human
[which would translate into a breathless heartbeat representing a sign of life in a human],
although that leaves open the question whether Moreh Nevukhim can serve as a source for
halakhic information. Writing in his capacity as an Acharon, Maharsham may have
arguably (though not necessarily) addressed the last question, viz. what is the real
halakhic source for the Moreh Nevukhim’s assumption that a breathless pulse is indeed a
sign of life in a human. Maharsham points to the Mishnah, Ohalot 1:6 [regarding
decapitation] as implying that it is only in a decapitated human [where the minimal
measure of rosho ve-rubbo no longer exists] that movement is irrelevant. In any other
human, any movement – possibly including pulse – automatically constitutes a sign of
life. R. Bleich bolsters Maharsham’s proof by citing the Mishnah, Chullin 37a, that
spasmodic movement is a sign of life in an animal being slaughtered but which is not yet
decapitated.165 [Analogous to the aforementioned proof from Chiddushei ha-Ran, this
proof from Chullin 37a depends upon the inference of human vitality from animal
vitality. Just as in the case of Chiddushei ha-Ran we concluded that the inference is
potentially valid, so too is the same true for R. Bleich’s proof.]
However, Maharsham immediately proceeds to question that source, apparently
based on an alternative way the Mishnah can be deciphered. Namely, as emerges from
the Gemara, Chullin 20b-21a, according to some interpretations, it may be possible to
argue that a person is considered “physiologically decapitated” even when he
anatomically possesses a measurement of rosho ve-rubbo.
Be that as it may, a separate halakhic source that would justify Moreh Nevukhim
is the aforementioned Sifrei to Numbers 19:13 which defines all fluttering as a sign of
human life. [Indeed, since Moreh Nevukhim is authored by the very same Rambam who
cites that Sifrei in his commentary and code, such an elucidation of Moreh Nevukhim
seems quite plausible.] Yet, here as well, we must survey the parameters of decapitation,
since R. Naftali Zvi Yehudah Berlin and R. David Pardo, in their respective commentary
to that Sifrei, posits that decapitation is the one exception, where fluttering is not a sign of
life. However, Tiferet Yisrael disagrees with this understanding of Sifrei, apparently
contending that the parameters of decapitation bespoken by Chullin 20b-21a deny motion
that is bereft of consciousness or respiration as being a sign of life. Indeed, Tiferet Yisrael
would seem to be provide one of the hypothesized resolutions to Rosh’ self-contradictory
comments on this matter.

Accordingly, this serves as the appropriate transition to the next portion of the
essay, viz. to analyze the status of physiological decapitation. Importantly, we will
discover in this next portion that Rif equates physiological decapitation with death,
whereas we will also encounter several Acharonim who interpret Shulchan Arukh as
paraphrasing Rambam in negating the concept of physiological decapitation.

O. PHYSIOLOGICAL DECAPITATION I:
CHULLIN 20B-21A

165
See supra, note 138.

63
The Gemara, Chullin 21a, discusses the story of Eli (spelled with an ayin166) the
High Priest. In context, Rav Yehuda in the name of Shmuel rules that the breaking of the
neckbone plus most of the accompanying musculature renders a human being
halakhically dead. The Gemara [as elucidated by Rashi (s.v. ve-im tomar)] proceeds to
ask the High Priest is recorded by I Samuel 4:18 to have died simply as a result of a
broken neckbone, without any destruction to the surrounding musculature. The Gemara
responds ziknah shanei: a geriatric patient is different than all other patients.167 Due to his
seniority, the High Priest was killed through a breaking of the neck alone. Thus,
decapitation can occur in even a non-anatomical manner in a sensitive patient. From the
outside, the High Priest appeared as anatomically normal as any other individual, but the
blow to his neck caused internal physiological damage [-presumably meaning brain
death], killing him even while his heart was still beating. Thus, the High Priest was
“physiologically decapitated” and serves as the template for physiological decapitation.
If this proposition would be accepted, then it would emerge that neither Ohalot
1:6 nor Sifrei to Numbers 19:13 would serve as any proof that a breathless heartbeat is a
sign of life in a brain dead patient.168 Indeed, quite the contrary, if this proposition is
accepted, then we will have discovered absolute halakhic proof that brain death does
equal death, and this would obviously require careful re-evaluation of the Rishonim
tabulated in the previous section, who ostensibly recognize a breathless heartbeat as a
sign of life.169
Accordingly, given the paramount significance of Chullin 20b-21a to the concept
of brain death, we will now outline the sugya as it relates to the High Priest episode. Our
overview of the sugya in Chullin 20b-21a consists of the following eight steps:

166
This orthographic point is emphasized in order to distinguish the name of the person from (le-havdil) the
Sacred Name of Ha-Kadosh Barukh Hu, Yishtabach Shemo, identified by the Mishnah, Shevu‘ot 35a. [In
Hebrew language print, there is no danger of confusion because the ayin is clearly distinguishable from the
aleph. By contrast, in English transliteration, the danger of confusion (Heaven forbid) exists, since both the
ayin and aleph are transliterated identically. Sensitive to the halakhic imperative to avoid the danger of
confusion (as per Rashi to Menachot 29b, and after personally conferring with R. Bleich on Aug. 23, 2013
regarding a related application of that Rashi), this writer will exercise care from here on in the essay to
refer to the human being as “the High Priest” without ever mentioning his personal name again.]
167
R. Tendler, in his lecture cited supra, note 10, insightfully coins the term “geriatric bias” to capture the
full meaning of the expression ziknah shanei.
168
See discussion supra, Sections J-K.
169
R. Shabtai, Defining the Moment, pp. 135, misses this point (be-mechilat Kevod Torato), mistakenly
claiming regarding the 5770 RCA Vaad Halacha study’s analysis of Chullin 21a as follows:

“As noted by the Va’ad Halacha, even their conclusions from these discussions are far
from obvious or necessarily correct, thus adding additional layers of ambiguity to an
already vague term, further complicating any parallel drawn between shevirat ha-
mafreket and a medical diagnosis of “brain death.””

Alas, quite the contrary, because the analysis of the Vaad Halacha regarding the High Priest in
Chullin 21a [who experienced a situation of shevirat ha-mafreket] is far from obvious or necessarily
correct, therefore this gives us all the more reason to equate brain death with death. Accordingly, we must
comprehensively explore Chullin 21a, the task of the present Section O of the present essay.

64
1. Zeiri states that if the neckbone of an animal has been broken together with
most of the accompanying musculature, the animal is halakhically dead.
2. The Gemara supports Zeiri’s words by citing a braita which delineates the
process for melikah (the sacrificial killing of an avian offering as per Torah law, in which
the kohen pierces the bird’s neck with his thumbnail).
[The background to the braita is as follows: In an avian chatat, the melikah
includes severing one of the two “pipes” of the bird: either the trachea or the esophagus.
In an avian olah, the melikah includes severing both pipes. When both pipes are severed
in the case of the avian olah, the Sages hold that they should be severed completely,
whereas Rabbi Elazar the son of Rabbi Shimon holds they should be severed in their
majority and only in their majority.]
The braita states that when the kohen performs melikah, he pierces through the
spine of the bird – but not through the majority of the accompanying musculature – and
then pierces the pipe (in the case of chatat) or pipes (in the case of olah).
[N.B. According to Chiddushei ha-Rashba, the kohen then breaks the majority of
the accompanying musculature in the case of olah, whereas according to Ba‘al ha-Ma’or,
the kohen does not subsequently break the majority of the accompanying musculature in
the case of an olah. It would seem clear from a simple reading of the braita, in any event,
that for a chatat, the kohen definitely breaks a majority of the accompanying musculature
in the end. However, this is not the position of Rambam, Hilkhot Ma‘aseh ha-Korbanot
6:23. Rambam maintains that the kohen does not subsequently break a majority of the
accompanying musculature of the chatat. Why, in fact, the Rambam contradicts the
simple reading of the braita is the subject of a widespread investigation among the
Acharonim.170]
Evidently, explains the Gemara, the reason that the braita insists that the kohen
must take care to avoid cutting the majority of the accompanying musculature before he
severs the pipe (in the case of chatat) or pipes (in the case of olah) is that the bird would
be immediately halakhically dead by the breakage of the spine with the majority of the
accompanying musculature even before the kohen would have a chance to reach the pipe
(in the case of chatat) or pipes (in the case of olah). Such a melikah would be
disqualified. In order for a melikah to be kosher, the bird must remain alive until the pipe
(in the case of chatat) or pipes (in the case of olah) are severed. Accordingly, the braita’s
protocol supports the contention of Zeiri.
3. Rav Yehudah in the name of Shmuel says that the breaking of the neckbone
plus most of the accompanying musculature renders a human being halakhically dead.
[Thus, what Zeiri stated would kill an animal is equally valid in a human being,
according to Rav Yehudah in the name of Shmuel.]

170
See sources cited in the Frankel edition of the Rambam. See also R. Moshe Feinstein, Dibberot Mosheh,
Chullin, no. 15, where R. Moshe Feinstein offers an original approach to this question. The latter analysis
concludes with the caveat that much further analysis is required on this weighty sugya. [“Ve-adayin tzarikh
harbeh iyun ba-inyan ha-chamur ha-zeh.”] That volume of Dibberot Mosheh was published in 5743, after
the first six volumes of Iggerot Mosheh, but before the seventh and final volume of Iggerot Mosheh
published during R. Feinstein’s physical lifetime.

65
4. The Gemara questions the ruling of Rav Yehudah in the name of Shmuel by
citing I Samuel 4:18 which records that the High Priest died simply as a result of a
broken neckbone, without any destruction to the surrounding musculature.
5. The Gemara answers in defense of Rav Yehudah in the name of Shmuel by
responding: ziknah shanei – a geriatric patient is different than all other patients. Due to
his seniority, the High Priest was killed through a breaking of the neck alone.
6. The Gemara cites the Mishnah, Ohalot 1:6, to the effect that decapitation is
automatically considered death according to Halakhah. The Gemara inquires what
“decapitation” means in this Mishnah. Reish Lakish answers that it means literal
decapitation. Rabbi Assi in the name of Rabbi Mani answers that it means the same level
of injury as is inflicted upon an avian olah during the course of melikah.
7. Rabbi Yirmiyah asks Rabbi Assi whether [that which Rabbi Assi answers in
point 6 above] means a melikah according to the Sages – in which case Reish Lakish and
Rabbi Assi are in total agreement [since the melikah of the Sages in effect means
virtually total decapitation (which is apparently what Resh Lakish independently
envisaged when he spoke of “literal decapitation”)], or whether Rabbi Assi means a
melikah according to Rabbi Elazar the son of Rabbi Shimon, in which case Reish Lakish
and Rabbi Assi disagree. Rabbi Assi answers in accordance with the latter option. Viz., in
point 6 above, he meant to say melikah according to Rabbi Elazar the son of Rabbi
Shimon, such that Reish Lakish and Rabbi Assi disagree.
8. The Gemara reports an “ikka de-amrei” alternative version of the discussion in
points 6-7 above. The question is posed: what does decapitation mean in Ohalot 1:6?
Reish Lakish answers that it means literal decapitation. Rabbi Assi in the name of Rabbi
Mani answers that it means the same level of injury as is inflicted upon an avian olah
during the course of melikah, as per the interpretation of Rabbi Elazar the son of Rabbi
Shimon. [In other words, the only difference between the first version of the discussion
(points 6-7) and the ikka de-amrei version (point 8) is that according to the ikka de-amrei,
Rabbi Yirmiyah never participates in the conversation. Rather, according to the ikka de-
amrei, Rabbi Assi in the name of Rabbi Mani immediately explains himself from the
outset, such that there is no necessity for Rabbi Yirmiyah (or anyone else) to ever
subsequently inquire what Rabbi Assi means.]

This is the end of the outline. We now turn our attention to survey how the poskim
draw practical conclusions from this Gemara.
In codifying this Gemara, both Rif and Rosh – in their respective commentaries
on Chullin as well as in their respective Halakhot Ketanot, Hilkhot Tum’ah digests
[printed at the end of Tractate Menachot] – indeed rule that physiological decapitation
constitutes death. On the other hand, Rambam (Hilkhot Tum’at Met 1:15) is silent on the
topic.
Of course, the obvious problem is how Rosh (commentary on Chullin as well as
Halakhot Ketanot, Hilkhot Tum’ah digest) can rule in accordance with physiological
decapitation, when the very same Rosh (commentary to Ohalot 1:6) affirms the Sifrei to
Numbers 19:13 which considers any fluttering (mefarper) to be a sign of life. We already
mentioned this contradiction above, Section J, offering two diametrically opposite
resolutions, which leave Rosh as a “wild card Rishon.” On the other hand, there is no
contradiction in the words of Rif, and so we can safely surmise that for Rif, physiological

66
decapitation – presumably meaning the irreversible cessation of the two brain functions
traditionally recognized by Talmudic sources [catalogued above, Section A], viz.
consciousness and respiration – (probably170a) is death.
To that effect, whereas Shulchan Arukh Yoreh De‘ah 370:1 does not explicitly
mention physiological decapitation, Shakh §1 – in commenting upon that paragraph of
Shulchan Arukh – writes that it is implied (mashma) by Chullin 21a that in a geriatric
patient, a breaking of the neck will itself suffice to render the patient dead. Shakh also
cites the Yam Shel Shlomoh to the same effect. And, as we saw above, Section J, this is
also the view of Tiferet Yisrael.
However, a number of other Acharonim interpret Shulchan Arukh [and even
Shakh and Yam Shel Shlomoh] differently, as follows.
R. Isaiah Pick Berlin, Omer ha-Shikh’chah, no. 48, asks why both Rambam and
Shulchan Arukh omit any explicit reference to the ziknah shanei principle. Moreover, the
Shakh – who does finally cite the ziknah shanei principle – only says mashma (as quoted
above), as though there is some doubt about the correctness of the ziknah shanei
principle. In light of these incongruities, R. Berlin concludes that the Rambam must have
possessed the alternate version of the Gemara in Chullin 21a which is presented by
She’iltot de-Rav Achai Ga’on (Parashat Emor, no. 103). There, the Gemara (as presented
by She’iltot) uses the High Priest as the proof that breaking of neckbone plus the
majority of the accompanying musculature renders a patient dead. The High Priest
was anatomically decapitated according to She’iltot’s version of the Gemara [-not merely
physiologically decapitated.] Rambam accordingly follows the She’iltot, claims Omer ha-
Shikh’chah. And out of respect for Rambam – continues Omer ha-Shikh’chah – Tur and

170a
The caveat “probably” is inserted here, in recognition of the opposing claim of R. Bleich, Be-Netivot
ha-Halakhah III, pp. 133 & 145-147, that even Rishonim who have the textual variant of “navel” in Yoma
85a – and this would include Rif – consider a breathless heartbeat to be a sign of life, since inspection of
the navel is a way of checking for aortic pulse. [If R. Bleich’s opposing claim would hypothetically be
correct, then we would have a contradiction between Rif’s codification of Yoma 85a and Rif’s codification
of Chullin 21a. This would render Rif a “wild card Rishon,” analogous to Rashi, Ran and Rosh.]
R. Bleich’s opposing claim can be challenged on two separate counts: (a) As remonstrated by R.
Shabtai, Defining the Moment, p. 73,” the abdominal aorta is often difficult to feel and is a rather
insensitive indicator of continued heartbeat.” Accordingly, R. Shabtai prefers R. Avraham Steinberg’s
competing explanation, viz. that the navel represents motion due to respiration. [Now, the truth be told, R.
Bleich himself cites a medical textbook on physical diagnosis which does direct the physician to palpate for
aortic pulse at the navel. If so, then there seems to be a debate among physicians at play here. Writing prior
to R. Shabtai – but obviously anticipating R. Shabtai’s argument (since it is identically advanced by R.
Steinberg) – R. Bleich defends himself by arguing that the practice of medical diagnosis has evolved since
the Talmudic era. Ergo, even if not all physicians agree today that aortic pulse should be palpated at the
navel, nevertheless this appears to have been the case in the Talmudic era, and this should suffice to teach
us that a breathless pulse is a halakhic sign of life.] (b) Even if we are to accept that “navel” refers to the
aortic pulse [as R. Bleich claims], this would only prove that pulse is a relevant sign of life for the rejected
position in Yoma 85a (which directs the rescuer to check until the navel), but would not necessarily inform
us about the normative position in Yoma 85a (which directs the rescuer to check until the nose). [This
methodological objection has already been articulated previously in this essay, in the context of both Me’iri
and Tosafot in their respective commentaries to Yoma 85a. See supra, notes 88 and 98.]
Because each of these challenges against R. Bleich seems to create a legitimate safek (and how
much more so the synergic combination), in concert with the additional fact that Rif codifies the concept of
physiological decapitation on two separate occasions [i.e. in Menachot and Chullin], this student’s intuition
is that the optimally accurate portrayal of Rif is that he “probably” equates brain death with death.

67
Shulchan Arukh may have followed his approach. And that may be why the Shakh used
the hesitant word mashma, because he knew there is an alternate version to the Gemara
which rejects the concept of ziknah shanei. [However, Omer ha-Shikh’chah is careful to
add: “I do not insist kablu da‘ati (accept my opinion) in the intention of the Shakh.”
Thus, it does not sound as though Omer ha-Shikh’chah is certain about his thesis.]
Moreover, concludes Omer ha-Shikh’chah, even the Yam Shel Shlomoh quoted by Shakh
apparently recognizes the doubtfulness of physiological decapitation, because he never
questions Rambam’s omission thereof, whereas he does question the Rambam’s omission
of another aspect of the same sugya. Yam Shel Shlomoh held that, for purposes of
stringency, one should be concerned that maybe ziknah shanei exists (like our version of
Chullin 21a), and also that maybe ziknah shanei does not exist (like She’iltot’s version of
Chullin 21a).
R. Naftali Zvi Yehudah Berlin, in his Ha‘amek She’elah commentary upon the
She’iltot (ibid., §8) reaches exactly the same conclusion as Omer ha-Shikh’chah. Namely,
Ha‘amek She’elah writes that Rambam and Shulchan Arukh follow She’iltot.
R. Benjamin Hirsch Auerbach, in his Nachal Eshkol (Vol. 2, Hilkhot Tum’at
Kohanim, p. 185), likewise inquires why “neither Rambam nor any of the Rishonim”
mentions the concept of physiological decapitation.171 Nachal Eshkol’s answer goes even
a step further [than Omer ha-Shikh’chah and Ha‘amek She’elah]. According to Nachal
Eshkol, both our version of the Gemara as well as the She’iltot concur that nothing less
than anatomical decapitation constitutes legal decapitation. That is obviously the case for
the She’iltot: the High Priest suffered a broken neckbone together with the majority of his
accompanying musculature. But even according to our version of the Gemara (i.e. that
the High Priest only suffered a broken neckbone), what ziknah shanei means is – as
explained by Ran al ha-Rif – that in a geriatric patient, a broken neckbone suffices to
cause a cessation of all residual motion (pirkus) in the patient. I.e., a broken neckbone
suffices to cause immediate, irreversible cardiopulmonary arrest in a geriatric patient.
Concludes the Nachal Eshkol, “and as the juvenile and as the senior [are concerned], they
have the same law”. However, Nachal Eshkol concedes that Rashi to Chullin 21 (s.v. ve-
im tomar) is at odds with Ran al ha-Rif, as Rashi himself does accept the notion of
physiological decapitation. In the end, Nachal Eshkol believes that while Rashi and Ran
al ha-Rif clash regarding how to elucidate Chullin 21a, Rambam and Shulchan Arukh
concur with Ran al ha-Rif to reject physiological decapitation.
R. Jacob Gesundheit, in his Tiferet Ya‘akov commentary on Chullin 21a, also
addresses physiological decapitation. He is surprised by the fact that “the Rambam and
the poskim do not mention” the principle of ziknah shanei.172 He therefore comments

171
Actually, the phraseology of Nachal Eshkol regarding “nor any of the Rishonim” is imprecise, since Rif
(who is most certainly a Rishon) accepts the concept of physiological decapitation. Moreover, as will be
soon observed in the main text, Nachal Eshkol himself concedes that Rashi to Chullin 21a, s.v. ve-im tomar
(who is most certainly a Rishon) accepts the notion of physiological decapitation. Rather, what Nachal
Eshkol actually means is that neither Rambam nor Shulchan Arukh mention the concept of physiological
decapitation.
172
Actually, the phraseology of Tiferet Ya‘akov regarding “Rambam and the poskim” is imprecise, since
Rif (who is most certainly a posek) accepts the concept of physiological decapitation. Rather, what Nachal
Eshkol actually means is that neither Rambam nor Shulchan Arukh mention the concept of physiological
decapitation.

68
that, if not for Rashi,173 he would explain the sugya as follows: At first glance, the
Gemara’s challenge to Rav Yehudah in the name of Shmuel from the story of the High
Priest seems strange. Why do we not simply assume that the High Priest’s broken neck
caused him to experience cardiopulmonary arrest and that is what killed him? Thus, it is
not that the mere broken neck constituted death, but that it triggered death. Moreover, if
the mere breaking of the neck was assumed by the challenger in the Gemara to constitute
death, why does the verse say regarding the High Priest, “and his neckbone broke and he
died”? The breaking of the neck was death! There is no need to add “and he died”, as if
the death was subsequent to the breakage! Therefore, argues Tiferet Ya‘akov, the shakla
ve-tarya should be explained as follows. The challenger in the Gemara indeed assumes
that breaking the neck is not death (which is why the verse states “and his neck broke and
he died” – they were two separate events: the breaking of the neck, and then death by
cardiopulmonary arrest). But now the question is: why did Scripture even bother to
mention that the High Priest’s neck broke? Let the verse simply state: “And he fell from
his chair and he died”! It must be because the High Priest broke his neck plus the
majority of the accompanying musculature, and the chiddush of the verse is that even this
did not halakhically constitute the death of the High Priest (only the subsequent
cardiopulmonary arrest that was instantly triggered). And if so, then this refutes Rav
Yehudah in the name of Shmuel’s statement that the breaking of the neck plus the
majority of the accompanying muscaluture constitutes death. To which the Gemara
answers: No! Ziknah shanei! The High Priest only broke his neck, without the
surrounding musculature. But you would have thought, since he was a senior citizen, that
a mere breaking of the neck constitutes death in his case, and therefore Scripture comes
to teach the chiddush that even in the case of a senior citizen, a person is not decapitated
until the neckbone is torn together with most of the surrounding musculature. Thus, it
emerges that, according to the Tiferet Ya‘akov, there is no such concept as physiological
decapitation.
R. Yitzchak Pardo,174 in his To‘afot Re’em commentary on the She’iltot, adopts
almost the completely opposite approach. He is alarmed by the contradiction between the
She’iltot’s version of Chullin 21a and ours. He writes “tzarikh li iyun tuva” (this requires
a lot of analysis for me), unless we can say that the version of the She’iltot really means
to say as version of Chullin 21a does, but that there are many missing words in the
She’iltot (“she-chaser harbeh be-divrei Rabbeinu”). Thus, the To‘afot Re’em attempts to
reconcile both versions, such that everyone will agree with the ziknah shanei principle
and that everyone will agree with the concept of physiological decapitation, but he is
ultimately uncertain whether it can be done. To‘afot Re’em concludes that the halakhah
indeed is that breakage of the neckbone together with the majority of the accompanying
musculature constitutes death. He adds that the Yam Shel Shlomoh also wants to add the
ziknah shanei principle, and he refers the reader to the Shakh. However, the To‘afot
Re’em seems uncertain whether this can be accepted, which is consistent with his
previous remark of tzarikh li iyun tuva.

173
A reference to Rashi to Chullin 21a, s.v. ve-im tomar.
174
Not to be confused with R. David Pardo, cited in Sections J-K as a commentary on Sifrei.

69
On the other hand, Arukh ha-Shulchan, Yoreh De‘ah 370, §1, unreservedly
endorses the words of the Shakh, taking them at their face value. Thus, for Arukh ha-
Shulchan, physiological decapitation is death, [just like the ruling of Tiferet Yisrael.]175
Now we must address how other Acharonim can possibly disagree with Tiferet
Yisrael and Arukh ha-Shulchan, when Rif and Rosh both accept physiological
decapitation in their halakhic codifications on in their respective commentaries on
Chullin as well as in their respective Halakhot Ketanot, Hilkhot Tum’ah digests [printed
at the end of Tractate Menachot]. Seemingly, since R. Joseph Karo explains in the
introduction to his Beit Yosef that he pursues an algorithm of following the 2/3 majority
of the three pillars of decision-making of Rif, Rambam and Rosh, shouldn’t we accept
physiological decapitation because it is codified by both Rif and Rosh? We can answer
this question on two levels. First, we have seen that Rosh’ position is not so simple; his
comments on the matter of a breathless heartbeat are actually self-contradictory, and so
he is a “wild card Rishon” on the question of brain death. Second, even if we were to
hypothetically conclude [regarding the first level of response] that Rosh absolutely rejects
a breathless heartbeat as a sign of life [such that both Rif and Rosh would be united on
this front], the concept of sfek nefashot le-hakel presented by the Gemara, Shabbat 129a
teaches that when there is a legitimate debate among the poskim regarding a matter of
saving a life, we are authorized to follow the opinion that says to desecrate the Sabbath
for the patient.176 Indeed, methodologically speaking, R. Moshe Feinstein explains177 that
according to Kessef Mishneh [who is the very same R. Joseph Karo as the author of
Beit Yosef and Shulchan Arukh] the principle of sfek nefashot le-hakel requires us to
desecrate the Sabbath even in accordance with a minority opinion that is contested by a
majority opinion. Ergo, it seems to this student that mutatis mutandis, although 2/3 of the
pillars of decision-making [viz. Rif and Rosh] may reckon physiological decapitation as
death, the fact that Rambam is silent on the matter – and might well be interpreted as
disagreeing – is sufficient to require us to desecrate the Sabbath on behalf of a
physiologically decapitated patient.177a
It should also be noted that another one of the Rishonim [albeit not one of the
three pillars of decision-making recognized by Beit Yosef], the Ra’aviah, had a different

175
Cf. infra, note 278a with accompanying text, for further analysis of Arukh ha-Shulchan’s position on the
definition of death. However, that discussion concerns the topic of resuscitation (i.e. misdiagnosis of
death), whereas in this section we are concerned with establishing what constitutes death per se (assuming
resuscitation is known to be impossible).
176
Encyclopedia Talmudit IX, p. 267. To that effect, the verse which the Gemara, Yoma 85b, invokes as the
source for authorization to desecrate the Sabbath even for doubtful piku’ach nefesh, viz. Leviticus 18:5, is
understood by Tashbetz III, no. 37 (s.v. ve-ha-Ramban) to constitute an obligation. Thus, whenever one is
authorized to desecrate the Sabbath to doubtfully save a life, one is obligated to do so.

Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 250, left-hand column, s.v. ve-al zeh palig ha-Kessef
177

Mishneh.
177a
We may similarly take methodological observation of the fact that – as documented supra, note 116a –
Beit Yosef mentions as an obiter dictum that even a Sifrei which is ignored by the Talmud can be
normative. Arguably, then, since Sifrei to Numbers 19:13 deems fluttering to be a sign of life, we might
hypothesize that Beit Yosef is willing to follow Rambam on the matter of physiological decapitation, even
against the combined opposition of Rif and Rosh.

70
text of the Gemara in Chullin 21a, which stated [like the plain meaning of She’iltot] that
the High Priest was dead because the neckbone plus the majority of the accompanying
musculature broke.178 [Thus, Ra’aviah (in his capacity as a Rishon) is the functional
opposite of To‘afot Re’em (as an Acharon). Viz., To‘afot Re’em proposes a different the
text of She’iltot to match the Gemara, whereas Ra’aviah has a different text of the
Gemara to match the She’iltot.] While this would not necessarily be of significance to
Beit Yosef, it might be of concern for Rema, who does occasionally determine normative
halakhah in accordance with Ra’aviah. Likewise, it is clear from the comments of another
one of the Rishonim, viz. Me’iri to Yoma 23a, that he understands Chullin 21a to only
regard actual breaking of the neckbone plus the majority of the accompanying
musculature as decapitation.179 Thus, Me’iri certainly rejects the notion of physiological
decapitation. [In any event, for whatever the reason(s), neither Beit Yosef nor Rema
explicitly recognize ziknah shanei in Shulchan Arukh Yoreh De‘ah 370:1.]
In synopsis, then, while Rif [as well as Rashi, Ran and Rosh in the form of “wild
card Rishonim”] accept the ziknah shanei notion of physiological decapitation, neither
Rambam nor Shulchan Arukh mention it, such that by the time Maharsham wrote his
responsum on the definition of death (analyzed in Sections J-K above), four approaches
to ziknah shanei among the Acharonim had been published: (a) It is rejected by both our
version of Chullin 21a180 and She’iltot’s (Nachal Eshkol and Tiferet Ya‘akov). (b) It is
subject to a dispute between our version of Chullin 21a and the She’iltot’s (Omer ha-
Shikh’chah and Ha‘amek She’elah, though Omer ha-Shikh’chah expresses hesitation
about this). (c) It is accepted by our version of Chullin 21a, and it might very well be
accepted by the She’iltot, but this is uncertain (To‘afot Re’em). (d) It is totally accepted as
a matter of practical Halakhah (Tiferet Yisrael and Arukh ha-Shulchan).
From this synopsis, we can infer several conclusions of value. Firstly, we can now
understand Maharsham’s vacillation presented above, Section K: since there is more than
one way to understand Chullin 20b-21a (and hence more than one way to understand
Ohalot 1:6), therefore there is room to question whether Ohalot 1:6 serves as a source to
Moreh Nevukhim cited by Chatam Sofer. Secondly, since [as discussed above, Section J]
both R. Berlin and R. David Pardo in their respective commentaries on Sifrei to Numbers
19:13 assert that fluttering is a sign of life in all situations other than the decapitation
described by Chullin 20b-21a, we can now appreciate that whether or not Sifrei to
Numbers 19:13 proves that a breathless heartbeat is a sign of life in a brain dead patient
depends on the dispute on how to decipher Chullin 20b-21a. At least for R. Berlin
himself – being the identical author of both Emek ha-Netziv and Ha’amek She’elah –
Sifrei would recognize a breathless heartbeat in a brain dead patient (who has not been
anatomically decapitated) as a sign of life. Thirdly, we see that each of the Rishonim who
were tabulated in Section N as ostensibly recognizing a breathless heartbeat as a sign of

178
See Yalkut Bi’urim of the Ha-Metivta edition of Talmud (by R. Yehoshua Leifer), Chullin Vol. 1.
179
See supra, note 94, and accompanying text.
180
In other words, according to both Nachal Eshkol and Tiferet Ya‘akov, the normative elucidation of our
version of the Gemara, Chullin 21a does not follow Rashi, Rif or Rosh.

71
life will actually need to be re-evaluated, in light of how he understands Chullin 20b-21a.
The requisite re-evaluation will be orchestrated in a future section.181

P. PHYSIOLOGICAL DECAPITATION II: CLARIFYING


THE POSITION OF RAN

In the immediately preceding section, we saw how the various Rishonim


understand the principle of physiological decapitation presented by the Gemara, Chullin
21a. To that effect, Ran’s position merits further clarification, the subject of the present
section.
Whereas Ran does not comment [in his Chiddushei ha-Ran book] on the subject
of ziknah shanei in Chullin 21a, the same author does address it in his separate Ran al ha-
Rif commentary. If it were merely a question of decoding the words of Ran al ha-Rif as
understood by this student, looking at the simple words of Ran al ha-Rif, this student
would be inclined to read Ran al ha-Rif as being identical to Rashi in accepting
physiological decapitation. [If so, this would create a contradiction between Ran al ha-Rif
on Chullin 21a vs. Chiddushei ha-Ran on Chullin 32b (analyzed above, Section F), and
the two possible mirror opposite resolutions would be identical to that already professed
vis-a-vis Rashi, as explained above, Section E. Thus, Ran would become a “wild card
Rishon” exactly like Rashi.] Importantly, however, as we saw above, Section O, Nachal
Eshkol decodes Ran al ha-Rif to be saying the exact reverse. Viz. Nachal Eshkol decodes
Ran al ha-Rif to be rejecting physiological decapitation, thereby disputing Rashi.
Nachal Eshkol’s claim is based on a subtle difference between Rashi and Ran al
ha-Rif’s language. Rashi writes “be-lo rov bassar ve-karei leih met,” viz. [the High
Priest’s neckbone broke] without the majority of the accompanying musculature, and
[Scripture] calls him dead. By contradistinction, Ran al ha-Rif writes “be-lo rov bassar u-
met,” viz. [the High Priest’s neckbone broke] without the majority of the accompanying
musculature, and he died. What Ran al ha-Rif must mean, reasons Nachal Eshkol, is that
two separate events occurred: first the High Priest broke his neckbone, and second that
trauma triggered cardiopulmonary arrest, only the latter representing death. Thus, while
Nachal Eshkol never explicitly mentions Chiddushei ha-Ran to Chullin 32b, it emerges
that for Nachal Eshkol, Chiddushei ha-Ran to Chullin 32b is completely consistent with
Ran al ha-Rif to Chullin 21a, to recognize a breathless heartbeat as a sign of life.
To this student, it seems well-nigh incredible that an issue of life-and-death (viz.
whether a breathless heartbeat consistutes a sign of life) should depend on so subtle a
difference in the language of Ran al ha-Rif, viz. the fact that he writes u-met instead of
ve-karei leih met. On the other hand, it is not clear that this student is in a position to
challenge Nachal Eshkol’s decoding of Ran al ha-Rif. Perhaps Nachal Eshkol recieved an
oral tradition to this effect that this is what Ran al ha-Rif intended. Therefore, this student
will leave the matter as an open question182 what Ran al ha-Rif holds. Viz. perhaps – as
would emerge from Nachal Eshkol – Ran al ha-Rif to Chullin 21a rejects physiological
decapitation and is thus completely consistent with Chiddushei ha-Ran to Chullin 32b

181
Infra, Section Q.
182
At least until other students of Halakhah will propose a satisfactory proof one way or another.

72
that a breathless heartbeat is a sign of life. And perhaps – as would emerge from the way
this student is inclined to decode the Ran al ha-Rif – Ran al ha-Rif to Chullin 21a accepts
physiological decapitation, thus creating a contradiction with Chiddushei ha-Ran to
Chullin 32b, thereby requiring us to conclude that the position of Ran (in both his Ran al
ha-Rif and Chiddushei ha-Ran) is that of Rashi, viz. “a wild card Rishon.”
In practice, it seems to this student that since we do not know whether or not Ran
is a “wild card Rishon” like Rashi, this itself epistemologically renders Ran a “wild card
Rishon.”

Q. PHYSIOLOGICAL DECAPITATION III: RE-


EVALUATING THE RISHONIM WHO OSTENSIBLY
RECOGNIZE A BREATHLESS HEARTBEAT

Given the survey of Chullin 20b-21a that was orchestrated in Sections O-P above,
we are now enabled to re-evaluate the Rishonim whom we earlier tabulated in Section N
as ostensibly recognizing a breathless heartbeat as a sign of life. We can also add the
position of Shulchan Arukh to the calculation, as follows:

(1) Me’iri to Yoma 23a clearly rejects physiological decapitation, and


specifically states that any fluttering or motion is a sign of life. Thus, for Me’iri, a
breathless heartbeat is certainly a sign of life. The problem remains, of course, that
reaching a halakhic decision from the newly discovered non-traditional manuscripts of
Me’iri is highly controversial.
(2-3) The position of Rambam regarding physiological decapitation [as well as
the position of Shulchan Arukh, which we have now discovered seems to paraphrase
Rambam] is subject to debate, but there is certainly a significant possibility that he indeed
rejects physiological decapitation, for such is the interpretation of Nachal Eshkol, Tiferet
Ya‘akov and Ha‘amek She’elah, with Omer ha-Shikh’chah being inclined to likewise so
conclude. This would be harmoniously consistent with Rambam’s apparent endorsement
of Sifrei to Numbers 19:13 [both in Rambam’s commentary and code] that any fluttering
is a sign of life, and thus there is a significant possibility that Rambam [as well as
Shulchan Arukh] considers a breathless heartbeat to be a sign of life.
(4) We have no evidence how Rabbeinu Shimshon of Shantz relates to the
concept of physiological decapitation in Chullin 21a, even as we know that he clearly
accepts the Sifrei to Numbers 19:13 that fluttering is a sign of life. In point of fact,
Rabbeinu Shimshon of Shantz authored a commentary in manuscript form on the entire
Gemara – a commentary, we might speculate, which could hypothetically have addressed
Chullin 21a – but most of his original manuscript has been lost.183
Seemingly, however, there is a peripheral argument to be advanced in the form of
mi-mah nafshakh (viz. one of two flip sides of the coin is presumably true, even if we
cannot identify with precision which one it is): if one rejects Me’iri because his
manuscripts are non-traditional, one should seemingly accept Rabbeinu Shimshon of
Shantz’ traditional commentary. And if one rejects Rabbeinu Shimshon of Shantz

See R. Aryeh Leibowitz, “Redacting Tosafot on the Talmud: Part I – Sources,” Ḥakirah Vol. 18 (Winter
183

2014).

73
because his commentary is archaeologically incomplete, one should seemingly accept
Me’iri whose commentary is archaeologically complete. Thus, while we do not know
whether Me’iri truly holds that a breathless heartbeat is a sign of life or whether
Rabbeinu Shimshon of Shantz truly holds that a breathless heartbeat is a sign of life,
arguably we may conclude that one of those two Rishonim (-we don’t know which one)
can be reckoned as a legitimate opinion that a breathless heartbeat is a sign of life.

R. PHYSIOLOGICAL DECAPITATION IV: RESPONSA


AFTER MAHARSHAM

In Section O, we explained (inter alia) why Maharsham would experience


uncertainty on whether Ohalot 1:6 serves as a source to Moreh Nevukhim, based on the
variety of ways to interpret Chullin 20b-21a.
Following Maharsham’s time, Chazon Ish, R. Moshe Feinstein and R. Shlomo
Zalman Auerbach all authored responsa addressing the meaning of Chullin 20b-21a,
albeit without explicitly noting that they were effectively revisiting Maharsham’s
responsum. Accordingly, we now turn our attention to Chazon Ish, R. Feinstein and R.
Auerbach’s respective words.

(1) Chazon Ish, Even ha-Ezer 28:1 – who adjudicates an agunah whose husband
was last seen mortally injured and has since disappeared – commences his responsum
with the assumption that the brain is regarded as an ever she-ha-neshamah teluyah vo, but
then offers a backup line of argumentation (to permit the same agunah to remarry) in
case the brain is not regarded as an ever she-ha-neshamah teluyah vo. In the opinion of
this student, to recognize the possibility (as the Chazon Ish anticipates in the alternative)
that the brain is not an ever she-ha-neshamah vo requires elucidating Chullin 20b-21a
like Nachal Eshkol et al [to dismiss the concept of physiological decapitation]. After all,
if one holds (like Rif et al) that physiological decapitation is death (contra Nachal Eshkol
et al), then how can the brain not be regarded as an ever she-ha-neshamah teluyah vo?
Of course, this does not mean that Chazon Ish actually rules with certainty to
dismiss physiological decapitation, because it is only the second of the two possibilities
that Chazon Ish enumerates. Thus, it may well be that Chazon Ish is in a safek as to how
to decipher Chullin 21a. On the other hand, even according to the first possibility that
Chazon Ish raises (viz. that the brain is indeed treated as an ever she-ha-neshamah
teluyah vo), this would not prove that Chazon Ish [even doubtfully] recognizes
physiological decapitation, either. After all, what an ever she-ha-neshamah teluyah vo
may mean is that life cannot long continue without that limb, but not necessarily that the
patient is instantly dead. [Either way, we would have at least a safek that Chazon Ish
learned Chullin 20b-21a like Nachal Eshkol et al, such that physiological decapitation is
not necessarily equivalent to death.]
Alas, Chazon Ish (be-mechilat Kevod Torato) seems to have overlooked Shulchan
Arukh Even ha-Ezer 17:31, which codifies the Gemara, Yevamot 120b, in fact the very
same Gemara explicitly invoked by Chazon Ish in that responsum. Namely, Shulchan
Arukh identifies the three anatomical places “from which the soul departs” [which
according to Chazon Ish’ own responsum are synonymous with evarim she-ha-neshamah
teluyah vahem] as “the heart, the brain and the intestines.” How, then, can Chazon Ish

74
express doubt whether or not the brain is an ever she-ha-neshamah teluyah vo? It should
be evident that the brain is an ever she-ha-neshamah teluyah vo!
At first glance, Otzar ha-Poskim on Shulchan Arukh Even ha-Ezer 17:31 seems to
offer an attempt to grapple with this incongruity. Namely, Otzar ha-Poskim indeed
recapitulates the Chazon Ish in question [which, as juxtaposed by Otzar ha-Poskim to the
words of Shulchan Arukh, clearly reveals the alarming problem within Chazon Ish’
responsum], and adds in brackets that the volume of Chazon Ish in which the responsum
was published was only released in 5718. The latter date is four years after Chazon Ish
ascended to the Heavenly Academy. Accordingly, this volume of Chazon Ish was never
published by Chazon Ish himself, and so – at first glance – one could claim that the
responsum was never published by Chazon Ish and hence might contain erroneous
information that Chazon Ish did not personally authorize.184
Upon further investigation, however, it emerges that Chazon Ish did personally
publish this same agunah responsum in an earlier volume which was indeed released by
Chazon Ish during his physical lifetime. Viz., the Jerusalem 5714 edition of Chazon Ish,
Choshen Mishpat Vol. 3 – in fact the final book ever published by Chazon Ish during his
physical lifetime184a – contains the responsum in ch. 43, sec. 1. Thus, the responsum is
definitely authentic, and raises an alarming problem how Chazon Ish could seemingly
overlook Shulchan Arukh.184b
Interestingly, with the responsum now corrected by the words of Shulchan Arukh,
the agunah conclusion of the responsum is actually strengthened. Namely, once it is
granted that Shulchan Arukh recognizes the brain as an ever she-ha-neshamah teluyah vo,
then obviously the widow of the long-missing husband can remarry [as, in fact, Chazon
Ish ruled]. However, vis-à-vis the topic of our present essay, viz. question of the
definition of life in a bioethical context, once it is acknowledged that the brain is
definitely an ever she-ha-neshamah teluyah vo [contrary to the doubt expressed by
Chazon Ish’ responsum], this responsum would (seemingly) offer no proof how to learn
Chullin 20b-21a.184c

184
Cf. R. Joshua Envel, “Le-Darkei Psikat ha-Mishnah Berurah ve-ha-Chazon Ish,” Yeshurun Vol. 31
(Elul 5774), p. 867, who chronicles all the Chazon Ish volumes published by Chazon Ish himself during his
physical lifetime. Among these, we discover that a first edition of Even ha-Ezer was published in Vilna
5692, a second edition of Even ha-Ezer was published in Jerusalem 5740, and a third edition of Even ha-
Ezer was published in Jerusalem 5741.
184a
As chronicled by R. Envel, loc. cit.
184b
This can be cited as one of the legitimate sources of confusion in the brain death debate.
184c
The word “seemingly” is parenthetically inserted into the sentence in the main text, because with a
highly conjectural argument, one might perhaps hypothesize the following explanation for Chazon Ish.
Shulchan Arukh Even ha-Ezer 17:31 is actually transcribed verbatim from Rambam, Hilkhot Geirushin
13:18. Yet, in a different passage, viz. Rambam, Hilkhot Arakhin ve-Charamin 2:4, the three evarim she-
ha-neshamah teluyah vahem are identified as the head, liver and heart. We find two differences here:
“head” instead of “brain,” and “liver” instead of “intestines.” Indeed, the Mishnah, Arakhin 20a explicitly
identifies the head and liver as evarim she-ha-neshamah teluyah vahem. By contradistinction, we never
find the Talmud identifying the brain or the intestines as evarim she-ha-neshamah teluyah vahem. Thus,
Chazon Ish may have assumed that Rambam’s list in Hilkhot Arakhin ve-Charamin is more halakhically
accurate than Rambam’s list in Hilkhot Geirushin. If so, even though Shulchan Arukh transcribes Rambam,
Hilkhot Geirushin, the real intention of Shulchan Arukh [once one appreciates that it is Rambam in

75
(2) R. Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 174, sec. 1,
analyzes Chullin 20b-21a, challenging the approach of Kessef Mishneh (Hilkhot Tum’at
Met 1:15) to that sugya. But R. Feinstein himself commits a black-letter error (be-
mechilat Kevod Torato) in recapitulating the sugya: On p. 286 of that volume of Iggerot
Mosheh, left-hand column, fourteen to twelve lines from the bottom, R. Feinstein writes
that according to the “ikka de-amrei” in the sugya, Rabbi Assi in the name of Rabbi Mani
explains that the Mishnah in Ohalot 1:6 refers to the same level of injury as is inflicted
upon a korban olat ha-of during the course of melikah according to the opinion of the
Sages.
Alas, R. Feinstein’s recapitulation of the sugya is contrafactual. The opposite is
true: according to the “ikka de-amrei” in the sugya, Rabbi Assi in the name of Rabbi
Mani explains that the Mishnah in Ohalot 1:6 refers to the same level of injury as is
inflicted upon a korban olat ha-of during the course of melikah according to the opinion
of Rabbi Elazar the son of Rabbi Shimon (the opponent of the Sages in the sugya).
[Remarkably, R. Yitzchak Ya’akov Weisz, in transcribing R. Feinstein’s
responsum verbatim in Teshuvot Minchat Yitzchak V, no. 8, and then offering his own
feedback to R. Feinstein’s correction of Kessef Mishneh, allows R. Feinstein’s black-
letter error to pass without comment. Apparently, R. Weisz did not notice that R.
Feinstein recapitulated the sugya the opposite of how it appears in the Talmud.185]
Further, R. Feinstein continues his responsum by providing three distinct
interpretations to how Rosh understands Chullin 20a-21a. These have been summarized
in an earlier footnote in the present essay, and – as identified there – R. Feinstein’s first
interpretation is surely mistaken (be-mechilat Kevod Torato), because it would mean that
Rosh overlooked an explicit Gemara in Sotah 45b.186 With all due respect manifest before
R. Feinstein, the epistemology of the Oral Torah – which sets the Rishonim on an even
higher rank than Acharonim – requires us to conclude that it is R. Feinstein who
overlooked the Gemara in Sotah 45b rather than Rosh who overlooked the Gemara in
Sotah 45b.187

Hilkhot Arakhin ve-Charamin which is the more precise recapitulation of the nomenclature of the Talmud]
is to codify the heart, the head (not merely the brain) and the liver (as distinct from the intestines) as the
three evarim she-ha-neshamah teluyah vahem. And so, while total absence of the head would certainly be
recognized by Chazon Ish to constitute death, the Chazon Ish was less certain whether physiological failure
of the brain would likewise constitute death. Ergo, we would have at least a safek that Chazon Ish learned
Chullin 20b-21a like Nachal Eshkol et al, such that physiological decapitation is not necessarily equivalent
to death. However, as mentioned, this is a highly conjectural argument how to hypothesize a defense for
Chazon Ish, and so the matter requires further investigation.
185
This can be cited as one of the legitimate sources of confusion in the brain death debate.
186
See supra, note 84.
187
Here, too, R. Yitzchak Ya’akov Weisz, Teshuvot Minchat Yitzchak V, no. 8, allows R. Feinstein’s error
to pass without comment. This can be cited as another one of the legitimate sources of confusion in the
brain death debate.

76
In any event, while describing the third of these three possible interpretations of
Rosh, R. Feinstein digresses to rule as that physiologic decapitation is indeed death, as
derived from the High Priest. Writes R. Feinstein:

“Shmuel derives from the verse regarding [the High Priest] that breakage
of the neckbone in a human renders him dead, except that without
seniority it is logical to him [Shmuel] that the human being needs also the
tearing of the majority of the surrounding musculature [to be considered
decapitated]. For if the breakage of the neckbone were irrelevant for the
definition of death, it would not help in the case of a senior, yet the verse
says ‘and his neckbone broke and he died’, implying that for Shmuel this
made [the High Priest] dead. And the reason there is no distinction in
practical law between a senior and a juvenile is because we are not experts
in the measure of seniority. Seniority here does not depend on years, for
there are seniors who [are healthy and therefore they] are like juveniles for
this purpose, even though they are seniors for other purposes.” 188

These remarks of R. Feinstein indicate that R. Feinstein accepts Rif’s approach


[which is indeed also the ruling of Tiferet Yisrael and Arukh ha-Shulchan, and is also
“wild card option” for Rashi, Rosh and Ran] that Chullin 21a should be interpreted to
mean that physiological decapitation = halakhic decapitation, except that R. Feinstein
adds (writing in 1968) that we are not sufficiently expert to medically diagnose
physiological decapitation.
However, it must be observed that R. Feinstein does not recognize the fact that
others (Nachal Eshkol, Tiferet Ya‘akov, Omer ha-Shikh’chah, Ha‘amek She’elah, To‘afot
Re’em) capitalize on the legitimate doubt created by Rambam and Shulchan Arukh [and
perhaps also She’iltot de-Rav Achai Ga’on and/or Ra’aviah, also supported by Me’iri] to
interpret Chullin 21a either to the contrary or doubtfully to the contrary, which would
thereby generate a doubt whether physiological decapitation is actually death.189
Be that as it may, in Iggerot Mosheh, Yoreh De‘ah III, no. 132, s.v. aval zehu, R.
Feinstein revisits the concept of physiological decapitation in the third paragraph. There,
he writes that when a patient is on a ventilator following a trauma, and the patient cannot
breathe, then the radionuclide scan should be performed as a “stringency” to ensure that
the patient is dead. Now, assuming one accepts R. Moshe David Tendler and R. David
Feinstein’s joint oral testimony regarding this responsum190 that the patient described

188
Iggerot Mosheh, Yoreh De‘ah II, no. 174, p. 287, left-hand column, lines 11-20.
189
Interestingly, in his subsequently published [albeit more theoretically oriented] Dibberot Mosheh
publication, R. Moshe Feinstein offers a novel approach to Chullin 20b-21a, concluding with the caveat
that much more analysis is required on this weighty sugya. See supra, note 170.
190
See R. Shabtai, Defining the Moment, ch. 12 for a description of R. Tendler and R. David Feinstein’s
joint oral testimony regarding this responsum, according to which it addresses a patient with cardiac
activity.
Actually, on p. 242, R. Shabtai negates R. David Feinstein’s words as being in the category of
testimony and instead describes them as “his own reflections on the topic (which are nonetheless significant
in and of themselves) and not those of his father.” The reason R. Shabtai arrives at this conclusion is

77
experiences circulation [-and, indeed, in contemporary medicine, radionuclide scans are
only conducted on patients who experience circulation], then what here is the
“stringency” of conducting the radionulide test?
[I.e. if one alternatively explains the responsum as dealing with a patient in
circulatory arrest,191 then the “stringency” is understandable. The “stringency” is that

because of R. David Feinstein wrote a letter on Jan. 3, 1990 stating “I never spoke to my father about his
halakhic ruling on ‘brain death.’”
However, with all due respect to R. Shabtai, the 5770 RCA Va’ad Halacha study, footnote 135 (of
that study) reports how R. David Feinstein would specifically write this student (SCS) a letter fifteen years
later (in 2005), testifying that he indeed heard from his father that Iggerot Mosheh, Yoreh De‘ah III, no.
132, describes a patient in a state of cardiac activity. [As for the letter from Jan. 3, 1990, that may well refer
to Iggerot Mosheh, Yoreh De‘ah II, no. 146, first paragraph, where R. Moshe Feinstein writes that cerebral
function is irrelevant to the definition of death when the patient is still breathing. See supra, note 36. It is
regarding this kind of so-called “brain death” (i.e. death of the cerebrum without death of the brainstem)
that R. David Feinstein never spoke to his father.]
191
See R. Shabtai, loc. cit., for a description of the countervailing interpretation of Iggerot Mosheh, Yoreh
De‘ah III, no. 132, according to which it addresses a patient in cardiac arrest.
Although a radionuclide scan is never performed on a patient in cardiac arrest (since the
effectiveness of the scan depends upon circulation of blood), R. Shabtai might well plausibly respond that
R. Feinstein did not understand the full medical implications of cardiac arrest, as illustrated by R.
Feinstein’s contrafactual remarks (in the previously published responsum Iggerot Mosheh, Yoreh De‘ah II,
no. 146) that a patient can continue breathing even after cardiac arrest. [See supra, notes 32 and 36.] So, the
same way R. Feinstein contrafactually assumed that respiration outlasts cardiac arrest, R. Feinstein may
have contrafactually assumed that the effectiveness of the radionuclide scan outlasts cardiac arrest. Indeed,
writing even before R. Shabtai, the 5770 RCA Vaad Halacha study, p. 54, likewise posits: “Of course
without a beating heart it is not possible to do a blood flow test, but as is clear from many of his writings on
these topics, he [viz. R. Moshe Feinstein] addressed the information as presented with all of its
limitations...”
Nevertheless, it is somewhat mysterious that R. Feinstein would have harboured multiple
contrafactual medical impressions, and so this is a weakness to R. Shabtai’s countervailing interpretation.
On the other hand, a strength to R. Shabtai’s countervailing interpretation is that R. Feinstein had
already published two responsa (Iggerot Mosheh, Yoreh De’ah II, nos. 146 and 174) forbidding heart
transplants as double murder, one of which (no. 146) also focused on the role that the heart per se grants in
according life to a creature. It is thus somewhat mysterious for R. Feinstein to then write a third responsum
(Yoreh De’ah III, no. 132) which rules that a patient with a functioning heart can be pronounced dead,
without even mentioning the heart altogether, and – moreover – which specifically references Chatam Sofer
in the opening paragraph. Indeed, this is the very same Chatam Sofer that R. Feinstein had also referenced
in his two previous responsa (-responsa which forbade heart transplants as double murder). [As catalogued
supra, notes 132-133, that responsum of Chatam Sofer (whose words R. Feinstein presumably must have
read) contradicts itself as to whether respiratory arrest defines death, or whether respiratory arrest combined
with circulatory arrest defines death. For R. Feinstein to so nonchalantly gloss over this contradiction
within Chatam Sofer, and simply read the Chatam Sofer to definitely rule that respiratory death constitutes
death even in the face of circulation, seems mysterious.] R. Shabtai’s countervailing interpretation
apparently solves this problem, by suggesting that R. Feinstein (erroneously but sincerely) believed he was
addressing a patient in cardiac arrest.
Why, then, according to this countervailing interpretation of R. Shabtai, is the necessity for cardiac
arrest not explicitly identified in R. Feinstein’s opening paragraph of this responsum, an opening paragraph
which simply states that death occurs when a patient cannot breathe? Perhaps R. Shabtai might choose to
elaborate as follows:
R. Feinstein predicates his statement in the former portion of the first paragraph (viz., that absence
of breathing is proof of death) upon the analysis presented in a previous responsum of his, viz. Iggerot
Mosheh, Yoreh De’ah II, no. 174, sec. 2. A survey of that previous responsum yields a remarkable
conclusion, as already described supra, note 54. Namely, R. Feinstein indicates that cessation of respiration

78
even though the patient is in circulatory arrest (which matches the classic definition of
death from time immemorial), we cannot pronounce death until the brain is diagnosed as
being physiologically decapitated (presumably because, until then, there is a chance of
resuscitation). But R. David Feinstein and R. Moshe David Tendler counter-claim that R.
Bleich’s interpretation of the responsum is historically mistaken, because they testify that
R. Feinstein was referring to a patient who has circulation (just no autonomous
breathing). What then is the “stringency” of the radionuclide test?]
The answer must be that if one accepts R. David Feinstein and R. Moshe David
Tendler’s joint oral testimony, then the stringency of which the responsum speaks is that
even though R. Feinstein holds by physiological decapitation (as previously announced in
Yoreh De‘ah II, no. 174, sec. 1), still R. Feinstein will not acknowledge that physiological
decapitation has occurred until the brain has completely rotten. In other words, in
principle, physiological decapitation – as derived from the story of the High Priest
according to R. Feinstein’s controversial interpretation – occurs when the brain is
irreversibly dysfunctional, even if the brain has not decomposed. R. Feinstein imposes a
stringency upon this that he will not acknowledge that physiological decapitation has
occurred until the brain has actually rotten, as certified by the radionuclide scan.192

is only the definition of death insofar as closing the eyes is concerned. But the patient cannot truly be
considered dead for the sake of being seriously manipulated (such as by surgical incision), even upon
cessation of respiration. Presumably, this also means that we cannot bury a presumed corpse upon cessation
of respiration, seeing as burial is also a serious form of manipulation. So, the obvious problem becomes:
how can we bury any corpse before decomposition? [Indeed, Iggerot Mosheh, Yoreh De’ah II, no. 146
writes that if we were not experts in the diagnosis of death, we would have to delay burial until
decomposition.]
Accordingly, in response to this problem, Iggerot Mosheh, Yoreh De’ah III, no. 132, first
paragraph, is answering that one can bury a patient even before decomposition as long as one follows the
protocol established by the Chatam Sofer.I.e., the definition of death is indeed the cessation of respiration,
but that it must be applied in the manner elaborated at length by the ruling of the Chatam Sofer. Indeed, as
previously noted, the Chatam Sofer rhetorically commences his responsum by stating three times that death
depends upon cessation of respiration, but continues by elaborating three times that death only occurs when
cessation of respiration occurs in concert with cessation of circulation. Thus, Iggerot Mosheh perfectly
parallels Chatam Sofer’s writing style.
192
R. Hershel Schachter, Be-Ikvei ha-Tzon no. 36, points to a similar sounding (but conceptually distinct)
reason why R. Moshe Feinstein (Iggerot Mosheh, Yoreh De‘ah III, no. 132) would regard a rotten brain as
constituting decapitation. Since, in Iggerot Mosheh, Orach Chaim I, nos. 8-9, R. Feinstein rules that a
gangrened limb is considered dead and removed from the body, therefore R. Feinstein concluded that in
brain death (if the brain was completely deprived of blood flow and so became gangrened) the patient is
considered to be legally missing a brain. [R. Schachter further observes that Iggerot Mosheh, Orach Chaim
I, nos. 8-9 is challenged by R. Yom Tov ha-Levi Schwarz, Ma‘aneh la-Iggerot, nos. 5-6. Accordingly, R.
Schachter does not equate brain death with absolute death, but rather R. Schachter regards the status of a
brain dead patient as doubtfully alive, doubtfully dead.]
Actually, this student would counter that R. Schachter’s extrapolation from the gangrened arm to
the gangrened brain requires further consideration, since the arm is an external limb, whereas the brain is an
internal organ. I.e., while the brain may be gangrened during brain death, the external head (which houses
the brain) is not gangrened. This distinction is significant, because the Gemara, Chullin 46b, teaches that an
external limb has withered, by definition, when it becomes bereft of circulation, whereas an internal organ
has only withered, by definition, when – in addition to becoming bereft of circulation – it has decayed to
the point of crumbling when touched by the fingernail. The Gemara, Bekhorot 37b, posits that there is a
formidable difference between the two conditions. [Cf. R. Nathan Gestetner, Teshuvot Lehorot Natan XV,
no. 82, sec. 6, who expresses doubt that perhaps the brain be deemed an external limb, due to the

79
circulation of air provided by the nostrils. While this would prima facie explain R. Schachter’s
extrapolation, it seems to this student that careful consideration reveals that the air entering the nostrils goes
into the trachea, not the brain, such that this student’s critique of R. Schachter’s extrapolation remains
valid. Perhaps, however, the doubt that R. Gestetner actually means to express is whether the olfactory
sense provides a halakhic link between the nasal airflow and the brain.]
Now, as pointed out by the 5770 RCA Vaad Halacha study, pp. 41-42, R. Feinstein may have
originally assumed (when he published Iggerot Mosheh, Yoreh De‘ah III, no. 132) that the brain was
completely liquefied in brain dead patients, thus satisfying the criterion of decaying to the point of
crumbling when touched by the fingernail. If so, R. Schachter’s interpretation of R. Feinstein may have
been correct for the scientific assumptions of R. Feinstein at the time the responsum was originally
published. However, it is has more recently been scientifically demonstrated that brain dead patients do not
typically experience such total liquefaction while cardiac activity remains in progress. (Moreover, although
superfluous in rendering the objection, it has recently been scientifically demonstrated that there is some
small amount of circulation to the brain, sufficient to maintain hypothalamic-pituitary function in many
brain dead patients, in which case the brain certainly cannot be considered gangrened. See supra, Section
E.) Thus, it is possible that R. Feinstein would not longer regard the radionuclide scan as an adequate
stringency. [Indeed, the 5770 RCA Vaad Halacha study, p. 44, specifically reports that R. Schachter has
recently become more convinced that a brain dead patient may actually be definitely alive (not only “safek
alive”), given the updated scientific information of continued brain activity in brain dead patients.] On the
other hand, if R. Feinstein’s request for the radionuclide scan was based on Chullin 21a [regarding the High
Priest, as interpreted by Arukh ha-Shulchan], it is possible that R. Feinstein might be willing to consider the
radionuclide scan as an adequate stringency even today.
Now, according to R. Schachter’s claim that Iggerot Mosheh, Yoreh De‘ah III, no. 132 is based on
Iggerot Mosheh, Orach Chaim I, nos. 8-9, one must then explain why gangrene of the brain (which Iggerot
Mosheh equates with legal absence of the brain) would then legally be tantamount to decapitation. [I.e.
granted that R. Schachter has demonstrated that Iggerot Mosheh equates gangrene of the brain with legal
absence of the brain, but why should legal absence of the brain – in turn – be equated with death according
to Iggerot Mosheh?] R. Schachter answers that Iggerot Mosheh understood that the brain is one of the
evarim she-ha-neshamah teluyah vahem (viz. organs upon which life depends). While never specifically
cited by R. Schachter, the fact that the brain is one of the evarim she-ha-neshamah teluyah vahem appears
to indeed be codified by Shulchan Arukh Even ha-Ezer 17:31. However, the problem with R. Schachter’s
interpretation of R. Feinstein is that R. Schachter cannot explain why R. Feinstein calls employment of the
radionuclide scan a “stringency.”After all, if Iggerot Mosheh, Yoreh De‘ah III, no. 132 is a corollary of
Iggerot Mosheh, Orach Chaim I, nos. 8-9 [as R. Schachter claims], then the radionuclide scan should not
merely represent a stringency, but should rather be required according to the letter of the law in order to
pronounce the patient dead according to R. Feinstein.
Therefore, it seems to this student that even if one follows R. Schachter’s approach that Iggerot
Mosheh, Yoreh De‘ah III, no. 132 is a derivative of Iggerot Mosheh, Orach Chaim I, nos. 8-9, one must still
assume that R. Feinstein’s radionuclide scan responsum also refers to Chullin 21a as interpreted by Rif et al
[an approach to Chullin 21a indeed espoused in Iggerot Mosheh, Yoreh De‘ah II, no. 174]. And so this is
the stringency of R. Feinstein: viz. that although Rif et al interpret Chullin 21a to consider a patient
physiologically decapitated as soon as the patient’s brain is sufficiently dysfunctional to be irreversibly
unconscious and irreversibly apneic, nevertheless as a stringency R. Feinstein requests radionuclide scan
to prove that the entire brain is completely dead. [Having established that, R. Schachter’s approach to
invoke Iggerot Mosheh, Orach Chaim I, nos. 8-9 becomes somewhat superfluous.]
In summary, then, according to the joint testimony of R. David Feinstein and R. Moshe David
Tendler that Iggerot Mosheh, Yoreh De‘ah III, no. 132, refers to a patient experiencing cardiac activity,
there are two possible ways to explain the “stringency” of the radionuclide scan:

(a) As suggested by this student, R. Feinstein is following the Gemara, Chullin 21a, as interpreted
by Rif et al, and applying it when the radionuclide scan will confirm absence of circulation to
the brain.
(b) As suggested by R. Schachter, R. Feinstein is following his previously published Iggerot
Mosheh, Orach Chaim I, nos. 8-9 that a gangrened limb is considered legally absent.
[However, it seems to this student that since the brain is an internal organ, the status of

80
In summation, it appears that R. Feinstein held like Rif’s interpretation of Chullin
21a [also endorsed by Tiferet Yisrael and Arukh ha-Shulchan, and which is a “wild card
option” for Rashi, Rosh and Ran], but never addressed the countervailing opinion of
Nachal Eshkol, Tiferet Ya‘akov, Omer ha-Shikh’chah, Ha‘amek She’elah, and To’afot
Re’em, the countervailing opinion being based on the legitimate doubt created by
Rambam and Shulchan Arukh [and perhaps also She’iltot de-Rav Achai Ga’on and/or
Ra’aviah, also supported by Me’iri.] R. Feinstein did impose a chumra on Tiferet Yisrael
and Arukh ha-Shulchan’s intepretation not to diagnose physiological decapitation until
the brain rotted.

(3) R. Shlomo Zalman Auerbach, like R. Moshe Feinstein before him, interprets
Chullin 20b-21a like Rif [and in accordance with Tiferet Yisrael and Arukh ha-Shulchan,
and which is a “wild card option” for Rashi, Rosh and Ran] that physiological
decapitation = halakhic decapitation, and he also (like R. Feinstein) never seriously
acknowledges those who oppose physiological decapitation based on the legitimate doubt
created by Rambam and Shulchan Arukh [and perhaps also She’iltot de-Rav Achai Ga’on
and/or Ra’aviah, also supported by Me’iri]. This emerges from Shulchan Shelomoh, Erkei
Refu’ah II (Jerusalem, 5766), p. 40, where R. Auerbach writes (as quoted by R. Simchah
Bunim Lazerson):

“Therefore I think that if the physicians perform the injections described


earlier [of radioactive material, to diagnostically confirm that the brain is
irreversibly dysfunctional], it seems to my humble opinion that
presumably this is regarded as though his head was removed or the
neckbone of the senior was broken – which is considered dead even
without [the tearing of] the majority of the surrounding musculature. And
even though there are some who express doubts and are concerned, in any
event it is a doubt bordering on certainty (safek ha-karov le-vadai) [that
the patient is dead].”

Therefore, R. Auerbach will certify the patient as dead [even if cardiac activity
continues] when every single brain cell can be verified to be dead. For R. Auerbach, the
High Priest teaches that death of the entire brain = decapitation = death.
Of course, as he indicates on p. 31 of Shulchan Shelomoh, in his own lifetime
(until he ascended to the Heavenly Academy in 5755), R. Auerbach was never presented
with a single clinical case where he felt it could actually be proven that a brain dead
patient on a ventilator had experienced the death of all brain cells. Therefore, R.

gangrene would only be legally achieved by decay to the point of crumbling when touched by
a fingernail, and today it is scientifically recognized that this is not necessarily the case in
brain dead patients. (Furthermore, although superfluous in serving as an objection, there may
even be a small amount of circulation to the brain, in which case the limb definitely cannot be
considered gangrened.) On the other hand, R. Gestetner appears to be arguing that the
olfactory sense may doubtfully render the brain to be an external organ.] But even according
to R. Schachter’s approach, it seems to this student that R. Schachter’s approach is ultimately
inadequate unless one explains the stringency of R. Feinstein is that R. Feinstein relies on
Chullin 21a as interpreted by Rif et al.

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Auerbach never allowed removing organs from any of the brain dead patients with which
he was presented. However, R. Auerbach states that if – in the future – medical
diagnostic technology will improve such that it is possible to demonstrate that every
single brain cell has died, then the brain dead patient will be known to be physiologically
decapitated beyond cavil, and R. Auerbach will authorize removal of organs from the
brain dead patient to save other patients’ lives. 193
Ultimately, then, R. Feinstein and R. Auerbach both held like Rif’s interpretation
of Chullin 21a [also endorsed by Tiferet Yisrael and Arukh ha-Shulchan, and which is a
“wild card option” for Rashi, Rosh and Ran] as establishing the notion of physiological
decapitation, but never addressed the countervailing opinion of Nachal Eshkol, Tiferet
Ya‘akov, Omer ha-Shikh’chah, Ha‘amek She’elah, and To’afot Re’em, the countervailing
opinion based on the legitimate doubt created by Rambam and Shulchan Arukh [and
Sheiltot de-Rav Achai Gaon and/or Ra’aviah, also supported by Me’iri]. In upholding Rif,
R. Feinstein insisted (as a stringency) that we should not apply physiological decapitation
until we have evidence that the brain rotted, and R. Auerbach (apparently attempting to
take his cue from R. Feinstein) spoke of verifying that every brain cell has died.
In sum total, even after the contributions of R. Feinstein and R. Auerbach
regarding physiological decapitation, we are left with the same practical conclusion of
Sections O-Q, above, viz. that there is a safek whether or not Chullin 21a equates
physiological decapitation with death.

S. PHYSIOLOGICAL DECAPITATION V: RABBI


SHAUL YISRAELI

In the previous section, we analyzed the post-Maharsham responsa on the subject


of physiological decapitation by Chazon Ish, R. Moshe Feinstein and R. Shlomo Zalman
Auerbach. Another such post-Maharsham responsum – but one which raises a greater
number of arguments and so merits the present section of its own – is the analysis of R.
Shaul Yisraeli, which appears on pp. 32-41 of the spring 5747 edition of the Barkai
journal. To that effect, R. Abraham Steinberg reports that R. Yisraeli was a key member
of the Chief Rabbinate of Israel committee which ruled in 5747 that a brain dead patient
is halakhically dead.194
R. Yisraeli commences his responsum by observing that R. Feinstein’s responsa
prohibiting heart transplantation do not necessarily demonstrate that a brain dead patient
is alive. R. Feinstein was addressing a medical era quite different than our own today.
The putative heart donor patients in R. Feinstein’s era were capable of autonomous
respiration and were hence alive. Brain dead patients today cannot autonomously breathe,
and so were never described by R. Feinstein’s responsa.
Having cleared that pivotal hurdle, R. Yisraeli essentially proceeds to offer four
proofs that a brain dead patient is halakhically dead:

193
R. Shabtai, Defining the Moment, p. 343, leaves as an open question whether R. Auerbach intended to
define the death of each brain cell in functional or structural terms.
194
R. Steinberg’s testimony is available at <http://www.hods.org>.

82
(a) Yoma 85a declares that when a patient trapped under debris has stopped breathing, he
is dead. But surely, argues R. Yisraeli, the Sages of the Talmud knew from the
experience of government executions and decapitations that the heart beats even after the
person stops breathing. Yet, they still unequivocally declared that a patient is known to be
dead when he is detected to have stopped breathing at the nose, and it is accordingly
prohibited to unearth the patient further to reach his chest (to check for heartbeat).
Evidently, a heartbeat in a patient who cannot breathe is meaningless, and it therefore
emerges that a breathless heartbeat is not a sign of life.
R. Yisraeli proceeds to cite R. Chaim David Halevi who disagrees with the
foregoing and who argues that a breathless heartbeat is indeed a sign of life. R. Halevi
asserts that examination of the nose itself suffices as an effective diagnostic tool to
ascertain whether the heart is still beating, for a pulse can be detected in the area of the
nose, i.e. at the temples.195

195
Actually, one could cogently argue (in contradistinction to R. Halevi’s methodology, but in an effort to
strengthen R. Halevi’s conclusion) that quite apart from the pulse at the temples [which is in the vicinity of
the nose], a test for breathing of the nose will – in and of itself – determine whether or not the patient’s
heart is beating. This is because in the time of the Sages of the Talmud, there were no such concepts as
artificial respiration or cardiopulmonary resuscitation. Thus, in the time of the Sages of the Talmud, a
patient found in rubble who was not breathing was guaranteed to either presently be in a state of
irreversible cardiac arrest or imminently be in a state of irreversible cardicac arrest [such that further
excavation of the patient from the rubble would automatically represent a blatantly fruitless and pointless
desecration of the Sabbath]. Once a patient stopped breathing, he was past the point of “no return,” and no
amount of excavation would help extend his heartbeat, not even for a fraction of a second. This is indeed
the approach of R. Hershel Schachter, Be-Ikvei ha-Tzon, p. 251.
R. Shlomo Zalman Auerbach, cited on pp. 34-35 of Shulchan Shelomoh, Erkei Refu’ah II, adopts
the identical approach as R. Schachter, but adds the following complication. R. Auerbach claims that once
irreversible cardiac arrest occurs, the patient is retroactively deemed dead from the time of respiratory
arrest. The basis for his claim is on account of Rema to Shulchan Arukh Orach Chaim 330:5 who rules that
we do not perform post-morterm C-sections out of fear of misdiagnosing maternal death. (See supra, note
131.) R. Auerbach asks that if we must fear misdiagnosis of maternal death, then we should also fear
misdiagnosis of fetal death, and so when we are finally certain beyond cavil that the mother is dead, we
should then perform an emergency post-mortem C-section, lest the fetus still be alive at this later point. It
must rather be the case, infers R. Auerbach, that once we are certain beyond cavil that the mother is dead,
we retroactively re-calculate her death as having occurred at the moment of respiratory arrest, and so it
much too late to rescue the fetus.
R. Auerbach concedes that his claim of retroactive death is somewhat novel (ktzat chiddush) and
even requires further investigation (tzarikh iyun). To this student, it is clear why R. Auerbach’s contention
of the possibility of retroactive death must be rejected. Death is an empirical physical event which is
synonymous with departure of the soul, and like any empirical event, must respect the physical laws of the
space-time continuum which preclude the possibility of time travel (and, hence, retroactivity). Rema to
Shulchan Arukh Orach Chaim 330:5 is no contradiction to this prospective approach to death (i.e. an
approach to death which denies the possibility of retroactivity). In the case of a fetus, because it is so
fragile, the danger of misdiagnosing death is non-existent (as opposed to the mother, who – being a resilient
creature – might be misdiagnosed with death). [R. Auerbach (be-mechilat Kevod Torato) overlooked this
obvious distinction, which can be cited as one of the legitimate sources of confusion in the brain death
debate.]
Fundamentally, another way of phrasing R. Schachter’s explanation is that “illness has descended
into the world,” as per the Gemara, Megillah 21a. Namely, in previous eras, human beings were so strong
that they breathed until they definitely died. In our era, we are weaker than our ancestors, and patients stop
breathing even before they definitely die, viz. even before they suffer irreversible cardiac arrest [-the latter
definition of definite death being predicated upon Sifrei to Numbers 19:13. See supra, note 115.]

83
R. Yisraeli counterattacks based on Rav Papa’s analysis of the tannaitic dispute
found in the braita quoted in Yoma 85a. The Sages say that one checks a debris victim
until his nose. “Others” say one checks the debris victim until his heart [according to
Rashi’s manuscript of the Gemara]. Rav Papa explains that the dispute only exists when
the debris victim is excavated feet first, wherein “others” are satisfied to simply excavate
the patient to his heart, and the Sages require excavating even further, to his nose. But,
continues Rav Papa, if the debris victim is excavated head first, everyone agrees that it is
sufficient to excavate to the nose. Asks R. Yisraeli: According to R. Halevi’s elucidation
of the sugya, what chiddush is Rav Papa offering? Since the pulse is found at the nose,
obviously everyone will agree that when the patient is excavated head first it suffices to
inspect only the nose! The patent obviousness of this proposition would make Rav Papa’s
statement utterly unnecessary in the context of the sugya. But since Rav Papa does make
the statement, R. Halevi must be wrong.
R. Yisraeli further counterattacks R. Halevi by submitting that if R. Halevi’s
thesis is true, then actually there should be a dispute between the Sages and “others”
even when the debris victim is uncovered head first. This is because “others” will only
authorize excavating the patient to the temples, whereas the Sages will authorize
excavating the patient slightly further, i.e. to the nose.
Accordingly, R. Yisraeli dismisses R. Halevi’s proposition, and insists upon his
original conclusion that Yoma 85a is teaching that cessation of respiration is proof of
death, even when the patient’s heart is still beating.

(b) In the final paragraph of Iggerot Mosheh, Yoreh De’ah II, no. 146, R. Feinstein insists
that the physicians in charge of heart transplants may not be trusted. This is so, maintains
R. Feinstein, even if the heart was removed from a patient who was definitely killed
before his heart was even removed, such that the removal of the heart did not entail an act
of homicide. It is still impossible to permit the transplantation of that heart into a new
patient, continues R. Feinstein, for we can neither trust the physicians’s assessment that
the new patient’s original heart is actually so diseased that it necessitates replacement,
nor can we trust the physicians’ assurances that the new patient will survive the
implantation of a new heart.
Based on the foregoing, R. Yisraeli infers that R. Feinstein recognized the
possibility that a person can halakhically die before his heart is removed for
transplantation. After all, R. Feinstein said not to trust the physicians “even if there is a
heart ready [for transplantation] from a person who was definitely killed and died before
his heart was removed, such that there was no homicide in [subsequently] removing his
heart…” Since, by definition, a heart is only suitable for transplantation when it is still
beating, what R. Feinstein must have intended to articulate is that it is possible for a
person to die even while cardiac activity continues. Presumably, then, R. Feinstein was
implicitly communicating that a breathless heartbeat is not a sign of life. [And nowadays,
when physicians may be trusted, their diagnosis of brain dead would be regarded as
absolute.]

(c) R. Feinstein, Iggerot Mosheh, Yoreh De’ah III, no. 132, s.v. aval zehu be-inshei, relies
on a nuclide scan to diagnose physiological decapitation. Thus, argues R. Yisraeli, a brain
dead patient is dead because he is physiologically decapitated.

84
(d) Teshuvot Chatam Sofer, Yoreh De’ah no. 338, s.v. ve-hineh ha-Rivash, describes
patients who have stopped breathing but whose pulse continues. R. Yisraeli reports that,
all the same, the Chatam Sofer rules that such patients are dead. Thus, the sole definition
of death is cessation of respiration, and a breathless pulse is not a sign of life.
Accordingly, argues R. Yisraeli, a brain dead patient is halakhically dead.
Of course, R. Yisraeli now faces a difficulty with explaining the ensuing
paragraph (s.v. aval kol she-achar), where Chatam Sofer rules that once a patient lies
motionless as a stone and his pulse stops, then if his breathing stops, he is dead according
to Halakhah. Why would Chatam Sofer mention cessation of motion and of pulse, if all
that truly matters is cessation of respiration? R. Yisraeli answers that Chatam Sofer was
only describing the specific case where a patient trapped upside-down in debris has been
rescued feet first, as discussed by Rav Papa in the Gemara, Yoma 85a. Under such
circumstances, even if we unearth the patient until the chest and do not detect any
heartbeat (nor any motion in the limbs that have already been uncovered), the halakhah is
that we should still continue to desecrate the Sabbath by further unearthing the patient
until his nose is uncovered, whereupon the final test to determine whether or not he is
alive will be the attempted detection of respiration. But, argues R.Yisraeli, other than the
particular case of an upside-down patient who is unearthed feet first, there is never any
point in checking the heart. Absence of breathing, and only the absence of breathing, is
the definition of death.

These, then, are R. Yisra’eli’s four proofs that physiological decapitation


constitutes death. Nevertheless, be-mechilat Kevod Torato, challenges to his proofs can
be advanced, as follows:

(a) The fact that heartbeat serves as a sign of life is not necessarily contradicted by Yoma
85a. As noted in sections B and D above, Rashi [as further elaborated by Chakham Tzvi
and Divrei Sha’ul, as well, to a certain extent, by Iggerot Mosheh] explains that the entire
point of the Yoma 85a is to instruct that even though the rescuer cannot detect a heartbeat
in a patient, he must still search for respiration, because a weak heartbeat may be
concealed by the ribcage of the patient. Yoma 85a never says that a heartbeat is to be
dismissed when a patient is not breathing; Yoma 85a only says that breathing must still be
tested even when a person’s heartbeat can no longer be detected.
As for R. Yisraeli’s two attacks on R. Halevi, upon careful reflection it emerges
that the two objections neutralize one another. First R. Yisraeli claims that, according to
R. Halevi, Rav Papa’s statement is so obviously true it should not be included in the
Gemara. Then R. Yisraeli claims that, according to R. Halevi, Rav Papa’s statement is so
obviously false that it should not be included in the Gemara. Well, therein resides the
solution. One would have honestly thought that the Sages and the “others” indeed argue
even when the patient is discovered head first, precisely for the reason articulated by R.
Yisraeli’s second objection. Thus, Rav Papa comes to teach us the chiddush that the
Sages and the “others” do not argue: Everyone agrees that when the patient is excavated
head first, it will be easiest to detect cardiac activity at the nose. And, as such, R.
Yisraeli’s first proof is neutralized.

85
(b) R. Yisraeli is assuming that R. Feinstein means that the “even if” set of circumstances
could materialize by the patient meeting the criteria of brain death (including irreversible
unconsciousness and irreversible apnea) while the patient is anatomically normal.
[In truth, the opinion of this student is that R. Yisraeli is historically correct, and
R. Feinstein indeed orally ruled that brain death is death, as will be demonstrated later in
this essay.196] However, epistemologically speaking, this particular proof by R. Yisraeli
as to the position of R. Feinstein is unreliable. After all, it is equally possible that R.
Feinstein envisaged the “even if” set of circumstances as materializing in a patient who
was anatomically decapitated (which would constitute his instant death despite the
presence of heartbeat, as R. Feinstein rules in Iggerot Mosheh, Yoreh De’ah II, no. 174,
sec. 1, written two years prior to the letter under discussion), whereupon his heart was
swiftly removed by physicians and is now available for transplantation. Thus, R.
Yisraeli’s attempted proof is epistemologically unreliable [although he is indeed
historically correct as to R. Feinstein’s oral position, as will be demonstrated later in this
essay.197]

(c) R. Feinstein’s remarks regarding physiological decapitation are addressed in Section


R above. As explained there, even if we do accept the joint testimony of R. David
Feinstein and R. Moshe David Tendler [-and in a future section of the present essay, it
will be explained that we must indeed accept this testimony198], then still R. Feinstein
was following a controversial interpretation of Chullin 20b-21a. This would create a
doubt regarding pikuach nefesh, not enough to justify harvesting an organ from the brain
dead patient.

(d) Alas, R. Yisraeli seems to have simply misread and misreported Chatam Sofer’s clear
words in the paragraph commencing with the words ve-hineh ha-Rivash. The Chatam

196
Infra, Section W.
197
Cf. R. Shabtai, Defining the Moment, pp. 214-215, who attempts to challenge R. Yisraeli’s proof on two
alternative grounds. First, R. Shabtai argues that R. Feinstein’s “even if” comment is unreliable, since it is a
hypothetical obiter dictum. Second, R. Shabtai argues that since R. Feinstein forbids heart transplants as
double murder (meaning that even the donor is alive) in two other responsa (viz. Iggerot Mosheh, Yoreh
De ah II, no. 174 and Choshen Mishpat II, no. 72) – one responsum being written earlier than the present
responsum under discussion and one responsum being written later than the present responsum under
discussion – therefore this proves that R. Feinstein envisaged brain dead patients as alive.
Alas, both of R. Shabtai’s challenges represent a non sequitur. First, the Talmud does derive legal
inferences from obiter dictum remarks (what is called lav be-feirush itmar ela mi-klala itmar), and so there
is no reason to refuse to do the same with R. Feinstein’s responsum. Second, the other two responsa that R.
Shabtai references may hypothetically have been dealing with patients in PVS (where autonomous
breathing is possible), as distinct from brain death (where autonomous breathing is impossible), and so
there is no proof that R. Feinstein necessarily envisaged a brain dead patient as being alive.
Rather, with all due respect to both R. Yisraeli and (yibadel le-chaim) R. Shabtai, the truthful
rejoinder to R. Yisraeli is that which has been identified in the main text of the present essay. Namely,
since R. Feinstein may have hypothetically been referring to a literally anatomically decapitated patient in
his “even if” comment, therefore we cannot epistemologically derive anything from R. Feinstein’s “even
if” remark vis-a-vis brain death.
198
Infra, Section W.

86
Sofer actually says that a patient who has stopped breathing but whose heart is still
beating (like the Ben ha-Tzarfatit according to Andelusians) is alive.
Having established this, it is not even necessary to attempt to assess the
plausibility of R. Yisraeli’s chiddush in reading Chatam Sofer’s next paragraph
(beginning with the words aval kol she-achar). Nevertheless, for the sake of
strengthening the point, it is instructive to do so anyway. R. Yisraeli’s chiddush is
actually unsuccessful in interpreting the next paragraph, because Chatam Sofer proceeds
to discuss the standard practice of undertakers in burying corpses. The Chatam Sofer
declares that those undertakers do not bury a body until they confirm evidence of
cessation of respiration as well as circulation. There is no way to read these comments
of the Chatam Sofer as only being applicable to the context of upside-down debris
victims described by Rav Papa. Rather, the Chatam Sofer is enunciating a universal
principle of which all undertakers are expected to take cognisance. Death occurs upon
cessation of both respiration and circulation. Thus, with all due reverence to R. Yisraeli,
it emerges that his chiddush constitutes an error built upon another error.199
Thus, the arguments of R. Yisraeli regarding physiological decapitation have been
countered.200

T. PHYSIOLOGICAL DECAPITATION VI: TOSEFOT


RID

The 5770 RCA Vaad Halacha study, p. 33, offers a novel argument beyond the
previously published analyses of whether or not Chullin 20b-21a serves as a basis for the
concept of physiological decapitation. Specifically, the Vaad Halacha points to Tosefot
Rid, Shabbat 136a, who explains that the decapitation bespoken by Chullin 20b-21a is
defined as death because the residual spasmodic motion that follows decapitation does

199
R. Shabtai, Defining the Moment, pp. 175-177, identifies this same refutation against R. Yisraeli.
However, since R. Shabtai’s presentation is quite nuanced (evidently out of respect for R. Yisraeli), this
writer believes that it is pedagogically helpful to present the refutation more clearly and directly in the main
text adorned by the present footnote of this essay.
200
Cf. R. Shlomo Aviner, Teshuvot She’elat Shelomoh VII, no. 123, who regards it as axiomatic that so
righteous and great an institution as the Chief Rabbinate of Israel could not possibly have erred on the issue
of the definition of death. Certainly, R. Aviner’s sentiments, in articulating the reverence that is due to the
Torah scholars who comprise the Chief Rabbinate of Israel, are to be applauded. However, the substantive
point that has been demonstrated in this section remains unaffected. After all, Tosafot to Chullin 5b (s.v.
tzaddikim atzman lo kol sheken) explicitly declare that tzaddikim are only guaranteed protection from
inadvertently consuming a non-kosher foodstuff. It is entirely conceivable that even the greatest of
tzaddikim can err regarding any other matter.
Additionally, one could further argue (contra R. Aviner, be-mechilat Kevod Torato) that not all
members of the Chief Rabbinate of Israel have necessarily endorsed brain death as death. Specifically, R.
Menachem Mendel Kasher’s analysis of brain death – which recognizes cardiac activity as an intrinsic sign
of life according to the view of Chiddushei ha-Ran (as explained supra, note 81) and which also invokes
Sifrei to the same effect (as cited supra, note 115) – was formulated in response to the invitation of R.
Yehudah Unterman. [Indeed, R. Kasher’s analysis – including invocation of the relevant Sifrei – was
originally published alongside R. Unterman’s invitation in Noam Vol. 13 (5730).] Thus, it is possible that
R. Unterman would demur from defining brain death as death, assuming he concurred with the responsum
of R. Kasher which he himself commissioned.

87
not continue as long as 29 days in duration.201 Yet, we now know [as earlier documented
on p. 19 of the Vaad Halacha study] that some brain dead patients can continue to
maintain a heartbeat even longer than a month. Ergo, argues the Vaad Halacha, Tosefot
Rid would not recognize physiological decapitation as death.
However, it seems to this student that the Vaad Halacha’s argument is a non
sequitur. The Vaad Halacha is assuming that Tosefot Rid identifies the 29-day threshold
as the reason [-in Brisker analytical parlance: the sibah] why decapitation constitutes
death. However, it is possible to alternatively read the Tosefot Rid as providing a
signpost [-in Brisker analytical partlance: a siman] why decapitation constitutes death.
Namely, since – when not sustained on a ventilator – a decapitated patient will not
maintain a heartbeat for 29 days, therefore this reflects the fact that the injury is so severe
that the patient is already legally dead. As such, this signpost would coexist in harmony
with the reality that the same decapitated patient – even when sustained on a ventilator,
and as such maintaining a heartbeat beyond 29 days – would still be dead. And thus
Tosefot Rid does not necessarily support the Vaad Halacha.
Indeed, the methodologically identical remonstration was offered by R. Avraham
Steinberg to R. Shlomo Zalman Auerbach regarding the latter’s initial claim that a brain
dead patient must be alive since the Gemara, Arakhin 7a, submits that a mother who dies
during pregnancy always outlives her fetus [other than cases of traumatic death of the
pregnant mother], and and yet brain dead patients have been documented as gestating
foetuses. Namely, R. Steinberg argued that R. Auerbach’s specific proof from Arakhin 7a
is not dispositive, since the Gemara refers to a siman rather than a sibah. After the
pregnant sheep experiment, R. Auerbach conceded to R. Steinberg that the specific proof
from Arakhin 7a was no longer dispositive.202 Mutatis mutandis, the same can be said for
Tosefot Rid to Shabbat 136a.

U. PHYSIOLOGICAL DECAPITATION VII: THE


DICEPHALOID

In a recently published critique of the 5770 RCA Vaad Halacha study, Dr. Noam
Stadlan introduces a novel proof to support the concept of physiological decapitation.203
Namely, he observes that the Gemara, Menachot 37a-b, regarding the status of a
dicephaloid prima facie demonstrates that neurological failure should constitute death.
By this argument, Dr. Stadlan presumably [and quite correctly] means to highlight the
comment of R. Avraham Borenstein, Teshuvot Avnei Nezer, Yoreh De‘ah no. 399, sec. 3,
who – in elucidating the relevant Gemara – treats the neurological function of the head as
the principal measure of life for a human.

Due to a typographical error, the RCA Vaad Halacha writes in Hebrew “Shatabb 136a,” a misprint for
201

Shabbat 136a.
202
See R. Shabtai, Defining the Moment, ch. 16.
203
Dr. Noam Stadlan, “Is the Concept of Vital Motion a Halakhic Definition of Death?”, Ḥakirah Vol. 18
(Winter 2014), p. 103. [A separate argument that is inherent in the same article passage of Dr. Stadlan has
already been acknowledged and congratulated supra, note 13.]

88
Specifically, Avnei Nezer questions why the Gemara does not invoke the principle
yater ke-natul damei (a duplicated limb is considered missing) to consider a dicephaloid
to be missing a head.
Avnei Nezer answers as follows:

“That which the Merciful One predicates [the law of redeeming] the
firstborn of a human upon the head is because in a human, the essence is
the head, for there is the dwelling place of intelligent consciousness. And
likewise Rashi comments in Yoma 22b, when [the Gemara] asks `let us
count [the kohanim] themselves,` and Rashi explains `their heads.` Behold
[we see from Rashi that] the head is the essence of the human... And from
a human we cannot extrapolate to an animal, because in a human the
principal is the intelligent consciousness, as opposed to an animal [where]
the principal is the body, and the head is just like any other limb.
Therefore a dicephalous animal is considered to be lacking vitality of the
head and is deemed a treifah, as opposed to a [dicephalous] human where
it is upon the head [that the Torah predicates the mitzvah of pidyon ha-
ben, as per the Gemara, Menachot 37b] there is no treifah status [for the
dicephaloid] altogether.”

Thus, the approach of Avnei Nezer would prima facie grant exclusive value to the
neurological function of the human head, which – in turn – might mean that the
physiological decapitation should constitute death in a human.
However, upon further reflection, this proof from Avnei Nezer is not dispositive.
To appreciate why this is so, it is first necessary to consider the dispute between Rashi
and Tosafot on how to understand the relevant Gemara. To that effect, Menachot 37a-b
can be divided into the following three stages for pedagogical convenience.

(A) Plimo asks Rabbi Yehudah ha-Nassi on which head should a dicephaloid don
tefillin. Rabbi Yehudah ha-Nassi dimisses the question as irrelevant.
(B) A passerby stuns Rabbi Yehudah ha-Nassi with the actual question that he just
had a son born as a dicephaloid, and needs to know how much to pay for
pidyon ha-ben. An anonymous elder on the scene rescues Rabbi Yehudah ha-
Nassi by answering to pay ten shekalim. The Gemara immediately attacks the
anonymous elder based on Numbers 18:15, from which we learn that a baby
that is nitraf is excluded.
(C) The Gemara concludes that the anonymous elder is vindicated by Numbers
3:47, from which we learn that pidyon ha-ben depends on the head.

Rashi’s elucidation: Rashi translates nitraf as "killed." This means that the
Gemara at stage (B) indeed professes that we do say yater ke-natul damei, and this is why
the baby is considered "killed." The baby is killed because it has been virtually
decapitated by the presence of a duplicate cranial unit. Subsequently, at stage (C), the
Gemara realizes that Numbers 3:47 teaches us not to say yater ke-natul damei, and hence
that the dicephaloid is halakhically considered alive. [And it is to this stage (C) as
elucidated by Rashi that Avnei Nezer’s comment applies. Namely, the message of

89
Numbers 3:47 is to override application of yater ke-natul damei in the case of a
duplicated cranial unit, precisely to establish that the head is the essence of the human,
being the centre of intelligent consciousness.]
Tosafot’s elucidation [as further amplified by Chazon Ish, Menachot 42:4]:
Tosafot translate nitraf as "possessing a morphological anomaly which will prevent the
baby from surviving twelve months." Accordingly, it is only at stage (A) that the Gemara
assumes that we say yater ke-natul damei, and that the baby is considered to be virtually
decapitated. This is why Rabbi Yehudah ha-Nassi originally dismissed the possibility of
the person ever requiring tefillin. By stage (B), the Gemara abandons this assumption and
understands that the baby is clearly alive and not virtually decapitated, such that
eventually the boy will survive until bar mitzvah and be obligated to don tefillin. Thus, at
stage (B), the Gemara is no longer willing to invoke yater ke-natul damei, and is no
longer puzzled by the boy’s long-term survival. Rather, at stage (B), the Gemara is
instead puzzled why the father should pay twice the price for redemption, when only one
head has "full vitality." Seemingly, five shekalim should suffice for pidyon ha-ben. The
latter puzzlement is finally resolved at stage (C) by the Scriptural decree represented by
Numbers 3:47. This Scriptural decree means that despite the fact that one of the heads
lacks full vitality, its presence is sufficient to obligate the father to pay another five
shekalim.
In summary: according to Rashi, the reason that we don't say yater ke-natul
damei is because of the Scriptual decree of Numbers 3:47, whereas according
to Tosafot/Chazon Ish it is clear that we don't say yater ke-natul damei,
but Tosafot/Chazon Ish never explain the legalistic reason why this is so. Thus, Avnei
Nezer’s comment applies specifically to Rashi’s approach to Menachot 37a-b
[harmonious with the fact that Avnei Nezer parallel-references Rashi to Yoma 22b], but
would not explain the Tosafot/Chazon Ish approach to Menachot 37a-b.204
How, in fact, would Tosafot/Chazon Ish explain why we we don't say yater ke-
natul damei?
Now, R. Hershel Schachter, based on his analysis in Be-Ikvei ha-Tzon no. 36,
might prima facie answer that we don't say yater ke-natul damei regarding a dicephaloid
because there has been no blood loss from the dicephaloid.205 However, in a personal
correspondence between Dr. Stadlan and this student about the same issue,206 Dr. Stadlan

204
Furthermore, even regarding Rashi, what Avnei Nezer may hypothetically mean is that although the
principal source of vitality to a human being is in the head, there may still be residual vitality in the
human being residing in the heart (even after the head has neurologically failed through irreversible
unconsciousness and irreversible apnea), so long as there remains hypothalamic-pituitary function in the
brain. See supra, Section E. Thus, even regarding Rashi, Avnei Nezer alone is not a dispositive proof.
[Rather, the true meaning of Rashi’s position on physiological decapitation depends upon the debates
presented supra, Section E.]
205
In fact, during 5769, when R. Schachter visited Montreal, Canada, this student personally approached R.
Schachter to suggest this link between Be-Ikvei ha-Tzon no. 36 and the Gemara, Menachot 37a. R.
Schachter verbally agreed with this student that this would represent an accurate evaluation, because
according to him, the reason decapitation constitutes death is the blood loss. Where there is no blood loss,
decapitation has no legal meaning.
206
The correspondence that this student was privileged to experience with Dr. Stadlan occurred subsequent
to this student’s conversation with R. Schachter documented supra, note 205.

90
cogently remonstrated that R. Schachter will not be able explain a situation of where the
head and body have been carefully separated and placed on two circulatory machines.
Since there has been no blood loss, would we now say that there are two human beings
created out of one? Surely, the miracle of the bifurcating frogs (as expressed by Rashi to
Exodus 8:2) is the exception that proves the rule; one human being cannot suddenly
bifurcate into two human beings. [Indeed, separating the head from the body means that
neither element contains rosho ve-rubbo, presumably the minimal mathematical
measurement of a human being, as postulated above, Section K.] So we need a different
explanation for Tosafot/Chazon Ish as to why a dicephaloid is not halakhically considered
to be virtually decapitated.
We can therefore propose that a satisfactory explanation for Tosafot/Chazon
Ish would be based on Chiddushei ha-Ran to Chullin 32b [already discussed above,
Section F]. Namely, Chiddushei ha-Ran writes that although we say ke-mancha be-dikula
dam'ya for an animal's lungs, we do not say ke-mancha be-dikula dam'ya regarding the
animal's heart. Chiddushei ha-Ran's distinction is based on the claim that although an
animal can live without lungs, an animal cannot live without a heart. [As also described
in Section F, Chiddushei ha-Ran quotes an anonymous opinion which disagrees and
which claims that we do say ke-mancha be-dikula dam'ya even for the heart.].
So, Chiddushei ha-Ran refuses to apply the legal fiction of removing an animal's organ
from the animal's body, when the organ is demonstrably contributing to the life of the
animal. [Viz. even after the trachea has been slaughtered (thereby creating the legal
fiction that the lungs have been removed from the animal), the heart continues to
circulate blood to the rest of the animal, and so we cannot accept a legal fiction which
claims that the heart has been virtually removed from the animal.] Mutatis mutandis, we
can extrapolate that a dicephaloid, whose two heads continue to contribute to the function
of the body (e.g. breathing, muscular control), is not a situation where we will accept the
legal fiction of yater ke-natul damei. Accordingly, Tosafot/Chazon Ish to Menachot 37a
follow the approach of Chiddushei ha-Ran to Chullin 32b. [Admittedly, as mentioned,
there is an anonymous dissenting opinion cited by Chiddushei ha-Ran, and so we would
have to posit that the anonymous dissenting opinion will explain the Gemara in
Menachot 37a like Rashi (as distinct from Tosafot/Chazon Ish).]
In summary, the case of the dicephaloid is not necessarily a proof to the concept
of physiological decapitation, and so it remains the case that physiological decapitation
will depend on the dispute among the poskim we have seen above, Sections O-R.

V. CUMULATIVE SUMMARY OF PHYSIOLOGICAL


DECAPITATION SURVEY AND TRANSITION FOR
NEXT PORTION OF PAPER

In the above seven sections (O-U), we surveyed conflicting opinions whether or


not Chullin 20b-21a serves as a basis for the concept of physiological decapitation. In the
course of this enterprise, we effectively re-evaluated (in Section Q) the Rishonim whom
we had earlier tabulated as ostensibly recognizing a breathless heartbeat as a sign of life.
Futher in the course of this enterprise, we discovered (in Section R) two legitimate ways

91
to interpret the “stringency” of the radionuclide scan described by Iggerot Mosheh, Yoreh
De‘ah III, no. 132.207
Indeed, the duplicity of legitimate ways to interpret the radionuclide scan
stringency in Iggerot Mosheh, Yoreh De‘ah III, no. 132 harmoniously parallels the
phenomenon we already discovered earlier in Section D, where Iggerot Mosheh’s first
two responsa on the definition of death (viz. Yoreh De‘ah II, no. 146 and 174) offer
contradictory indications on the status of a breathless heartbeat. Furthermore, as we
explained in Section D [as well as the following Section E], the contradictory indications
within the first two responsa of Iggerot Mosheh are themselves ultimately sourced in
Rashi himself, whose commentaries to Yoma 85a vs. Chullin 21a are self-contradictory.
This now serves as the appropriate transition for the next portion of the present
paper: attempting to arrive a definitive conclusion as to what R. Moshe Feinstein actually
held, and whether it can serve as a basis for practical halakhic guidance.
To be sure, Iggerot Mosheh, Yoreh De‘ah III, no. 132 possesses as its stated task
the assignment of a final, absolute medicolegal definition to death. However, this
responsum contains within itself an internal incongruity.
First, R. Feinstein defines death as the cessation of respiration, apropos the
Gemara, Yoma 85a, Rambam (Hilkhot Shabbat 2:19), and Shulchan Arukh Orach Chaim
329:4. However, he then adds (in the last sentence of the first paragraph) that this
definition has been clarified at length by Teshuvot Chatam Sofer, Yoreh De‘ah no. 338.
As has been demonstrated above in Section I, Chatam Sofer actually contradicts himself,
professing three times that death is equated with respiratory arrest, and then professing
three other times that death is equated with the combination of respiratory and circulatory
arrest. Alarmingly, R. Feinstein does not mention this self-contradiction. Even more
alarmingly, R. Feinstein makes no reference to his own previous responsum, Iggerot
Mosheh, Yoreh De‘ah II, no. 146, which – as demonstrated in above – recognizes Rashi’s
position [that cardiac activity is a potential sign of life] to be potentially credible.
Punctuating this double-alarming nature of the first paragraph of Iggerot Mosheh, Yoreh
De‘ah III, no. 132, cardiac activity (or lack thereof) is not explicitly mentioned anywhere
in any of the subsequent paragraphs of the same responsum, a puzzling omission
indeed.208
This leads to the two conflicting ways to interpret the responsum outlined above
in Section M. Either way of deciphering Iggerot Mosheh, Yoreh De‘ah III, no. 132
perforce leaves us with a profound sense of incredulity. There is no easy way to
understand this responsum.209 Thus, a judgement call is required on how to apply Iggerot
Mosheh, Yoreh De‘ah III, no. 132.

207
See supra, notes 190-192.
208
At best, R. Feinstein refers to cardiac activity only implicitly in the paragraph s.v. aval zehu, where he
discusses the radionuclide scan.
209
And see Iggerot Mosheh, Yoreh De‘ah III, no. 88 (appropriately enough published within the same
volume), where R. Feinstein writes that when evidence becomes posthumously available to overturn the
ruling of an outstanding luminary such as Chazon Ish, the Oral Torah authorizes (and indeed requires) us to
carefully re-examine the issue.

92
The conclusion that there are two possible legitimate interpretations to R.
Feinstein’s responsum is confirmed by R. Shlomo Zalman Auerbach, as cited by R.
Simchah Bunim Lazerson, Shulchan Shelomoh, Erkei Refu’ah II, p. 18. There, a
statement publicized in the name of R. Auerbach reads as follows:

“Also in Iggerot Mosheh, Yoreh De’ah III, no. 132, it is possible to


explain that the ga’on and tzaddik intended only to be stringent. See there.
But even if we will explain that he holds also to be lenient, it is only
because he did not know of the possibility [of a brain dead patient] to
digest food and host a pregnancy. And therefore since it is not mentioned
in the Talmud and poskim to rely on that which we call brain dead, his law
is that he is alive.”

In other words, R. Auerbach is first outlining interpretation (i) above, and then
interpretation (ii) above.210
Nevertheless, while not necessarily withdrawing his evaluation that Iggerot
Mosheh, Yoreh De‘ah III, no. 132, can be legitimately intepreted in two opposite ways,
R. Auerbach would subsequently modify his own practical conclusion. Namely, R.
Auerbach would subsequently acknowledge that his remarks regarding the capacity of a
brain dead patient to digest food and to host a pregnancy would be proven to be irrelevant
by the pregnant sheep experiment. Because of this pregnant sheep experiment, R.
Auerbach changed his practical conclusion from “his law is that he is alive” to “his law is
that he is doubtfully gossess, doubtfully dead.”211
Thus, given the genuine ambiguity that arises from R. Moshe Feinstein’s written
responsa on brain death, we now turn to the oral record to see if it can shed further light
on R. Moshe Feinstein’s position. Concomitantly, it will also be necessary to examine the
oral record regarding R. Feinstein’s colleagues R. Jacob Kamenetzky and R. Ovadiah
Yosef.

W. THE ORAL RECORD I: RABBI MOSHE FEINSTEIN

210
Likewise, the textual ambiguity within Iggerot Mosheh, Yoreh De`ah III, no. 132 is reflected in the
following additional statement of R. Auerbach published in Shulchan Shelomoh (p. 32) with R. Lazerson`s
personal editorial note (henceforth translated in square brackets):

“There is someone who says that R. Moshe Feinstein zatza”l retracted that which he had
previously ruled that in order to establish death we need the absence of three conditions
as ruled by Chatam Sofer [editor’s note: Shu”t for Yoreh De‘ah no. 338 – cessation of
respiration, motionlessness like a stone, no pulse whatsoever]. However, this is not found
in his responsa. And since there is no definition like this of brain-stem death in the
Talmud, we are unable to innovate such a definition in our days. And only when a
Sanhedrin will arise will it be within their power to establish whether or not brain death
constitutes death.”
211
See R. Shabtai, Defining the Moment, ch. 16.

93
In a Dec. 28, 1988 lecture, R. Moshe David Tendler testifies that he personally
saw R. Moshe Feinstein rule that a brain dead patient is dead, reporting as follows
regarding the Chief Rabbinate of Israel’s subsequent deliberations:

“The decision whether to accept brain death or not was made solely on the
basis of my shver’s teshuvah. As you know, they only wanted to confirm
that the shver believed that halakhah le-ma‘aseh. When I wrote them that,
indeed, the shver paskened that way for a woman in my own town,
halakhah le-ma‘aseh – that in many, many cases he asked people to take
off a respirator when there was evidence of brain death – that was the final
decision.”212

Thus, although the 5770 RCA Vaad Halacha study, pp. 57-58, raises a question
about the clarity about R. Tendler’s testimony based on an article he co-authored with Dr.
Fred Rosner in Journal of Halacha and Contemporary Society No. XVII (Spring,
1989),213 it would seem to this student that the article in question [appearing only after R.
Tendler’s already publicized 1988 testimony] reflects the input of Dr. Rosner, and does
not contradict R.Tendler’s personal testimony.214
Testimony virtually identical to that of R. Tendler appears by R. David Feinstein
[son of R. Moshe Feinstein], videotaped on the Halachic Organ Donor Society website.215
During spring 5766, this student wrote a letter to R. David Feinstein regarding his
videotaped testimony, inquiring about the seeming incongruity that Iggerot Mosheh,
Yoreh De‘ah III, no. 132, writes that the definition of death follows Teshuvot Chatam
Sofer, Yoreh De‘ah no. 338. Three times does Chatam Sofer insist that the cessation of
respiration must be accompanied by cessation of circulation to constitute death.216

212
Available at
<http://www.yutorah.org/lectures/lecture.cfm/711848/Rabbi_Moshe_D._Tendler/Definition_of_Death_II>,
56:59-57:20 into the recording.
213
Viz., in that article, uncertainty is expressed on four different occasions regarding what R. Feinstein
himself personally held.
214
The 5770 RCA Vaad Halacha study raises the question because it only documents testimony of R.
Tendler that was offered following the Journal of Halacha and Contemporary Society article publication in
1989. Now that the present essay has discovered testimony of R. Tendler that precedes the same article
publication, it is logical to assume that the credibility of R. Tendler’s testimony has been restored.
Dr. Rosner – as distinct from R. Tendler – reserves the right to entertain uncertainty regarding the
oral record on R. Feinstein, since Dr. Rosner did not personally witness how R. Feinstein treated brain dead
patients. [Indeed, prior to the publication of R. Shabtai Rappaport’s own oral testimony (to be featured later
in the main text of the present section) of how to reconcile R. Tendler’s testimony with Chatam Sofer, Dr.
Rosner was quite correct to express uncertainty regarding the position of R. Feinstein.]
215
Available at <http://www.hods.org>.
216
See supra, note 133.
Actually, there is a contradiction within Chatam Sofer, since three other times (catalogued supra,
note 132) Chatam Sofer defines death solely based on respiration. Regrettably, this student’s understanding
of the sugya was not sufficiently developed in 5766 to accurately recapitulate Chatam Sofer in the question
addressed to R. David Feinstein. In retrospect, then, a more appropriate question for this student to have

94
R. Feinstein (in a letter dated the fifth day of the week of Tazria-Metzora, 5766)
kindly replied to this student as follows:217

“I think I was very clear about what I felt I heard. There is no point
arguing about it since it would not change what I heard. If one feels I am
mistaken, he is free to do otherwise. I don’t make halakhot in this field.”

Indeed, R. Shabtai Rappaport (son-in-law of R. Moshe David Tendler) does


endeavour to reconcile Chatam Sofer with the joint testimony of R. Tendler and R. David
Feinstein.218 R. Rappaport posits that, although it is true that the Chatam Sofer maintains
that pulse is a sign of life, that is only so when the pulse occurs due to the enjoyment of
the oxygen naturally inhaled by the patient. The last manifestation of the enjoyment of
the last breath a patient took is when the heart contracts for the last time. Thus, when a
patient is not on a respirator, R. Rappaport acknowledges that a patient is still alive for all
halakhic purposes – including, for example, a complex inheritance case where it is
essential to know the split second that a patient dies – even after the last breath he takes,
until his cardiac activity stops, as well. But when oxygen is artificially pumped by a
respirator into an irrevocably non-breathing patient, the Chatam Sofer would agree that
the patient is dead, even if the patient’s circulation continues. That circulation is an
artificial circulation which is not the result of a patient’s own breathing, and which
Chatam Sofer would not reckon as a sign of life.219
It seems to this student that R. Rappaport’s reconciliation serves as a possible
solution to the contradictory statements of the Chatam Sofer. As described above in
Section I, three times does the Chatam Sofer define death as cessation of respiration, and

asked would have been how R. David Feinstein addresses the position of Rambam, Me’iri and/or Rabbeinu
Shimshon of Shantz (as tabulated supra, Section Q) who regard a breathless heartbeat as a sign of life.
217
Due to my personal carelessness, the letter has been lost, and so I am forced to transcribe the letter from
memory. I apologize to R. David Feinstein if there are any technical errors in my verbatim recapitulation of
his letter. In any event, the substantive contents of the letter are definitely being accurately recorded by this
student, and R. David Feinstein can be consulted for corroboration.
218
Two occasions of videotape testimony of R. Shabtai Rappaport are recorded at <http://www.hods.org> .
The first occasion consists of an interview at R. Rappaport’s home in Efrat, Israel. The second occasion
consists of a debate in New York City between R. Rappaport and R. Tzvi Flaum. On both occasions, R.
Rappaport offers the reconciliation henceforth presented in the main text. On the first occasion, R.
Rappaport offers the reconciliation regarding how R. Feinstein understood Chatam Sofer. On the second
occasion, R. Rappaport offers the reconciliation regarding how R. Feinstein understood Chatam Sofer as
well as how R. Feinstein understood Rashi to Yoma 85a. [N.B. Actually, Rashi is anyway a “wild card
Rishon,” as demonstrated in the present essay, supra, Section E, such that we are not dependent on R.
Rappaport to account for Rashi. Nevertheless, it is illuminating to hear R. Rappaport’s thesis in this
regard.]
219
R. David Shabtai, Defining the Moment, pp. 276-277, 287-288, 293, 373-374 – while ignoring R.
Shabtai Rappaport’s testimony, in light of R. David Shabtai’s previously stated refusal (p. 256) to process
any oral testimony in his Defining the Moment book – attributes the identical position to the [anonymous]
Secretariat of the Chief Rabbinate of Israel (letter of 23 Tamuz, 5747), to R. Avraham Kahana Shapira and
to R. Mordechai Eliyahu in their respective written analyses of brain death.

95
yet three further times does the Chatam Sofer define death as cessation of respiration only
when accompanied by cessation of circulation. As such, R. Rappaport would be resolving
the “three vs. three” contradiction by explaining that even the heartbeat that the Chatam
Sofer regards as a sign of life must represent the legal enjoyment of autonomous
respiration.
Having established R. Feinstein’s understanding (by way of the oral testimony of
R. Rappaport et al) of Chatam Sofer, let us investigate how R. Feinstein would relate to
the Rishonim catalogued above [section Q] as recognizing a breathless heartbeat as a sign
of life. For Rambam in commentary and code [as well as Shulchan Arukh who seems to
paraphrase Rambam], presumably we can indeed apply the same solution that R.
Rappaport offers for how R. Feinstein related to Chatam Sofer. After all, Chatam Sofer
itself is based on Moreh Nevukhim (as explained above, Sections J-K), and it is logical to
assume that Moreh Nevukhim – written as it is by Rambam – is in turn based on
Rambam’s own commentary and code. For Me’iri, there is no need to speculate how R.
Feinstein would relate to it, since R. Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 7,
explicitly announces his view that Me’iri’s newly discovered manuscripts are not to be
considered a source of halakhic information. Finally, for Rabbeinu Shimshon of Shantz,
since he is based on the same Sifrei as would appear to represent the basis for Rambam,
the same solution that reconciles Rambam with R. Feinstein will work for Rabbeinu
Shimshon of Shantz.
Accordingly, given that R. Rappaport’s reconciliation can potentially account for
how R. Feinstein understood the Rishonim who take cognizance of a breathless heartbeat
as a sign of life, and in light of the comments of Tosafot to Yevamot 77a, s.v. im kodem
ma‘aseh amarah shom‘in lo, that where there is no ulterior motive, we are required to
accept the truth of testimony as to the halakhic ruling of a deceased scholar, it seems to
this student that we must accept the joint testimony of R. David Feinstein, R. Moshe
David Tendler and R. Shabtai Rappaport as being the historical truth vis-à-vis R. Moshe
Feinstein’s position on brain death.
Yet, in a handwritten personal letter this student received by fax on Feb. 28, 2011,
R. J. David Bleich expresses (inter alia) his objection to this student’s methodology
regarding how to evaluate the oral record of R. Moshe Feinstein’s position.220 The
relevant portion of R. Bleich’s letter reads as follows:

“2. Reb Moshe did not accept brain death. I know that from contemporary
edut that was both ongoing in nature and reiterated by Reb Moshe
numerous times. That edut is recorded in writing.
3. That psak became muchzak and concretized in shtadlonus carried out in
Reb Moshe’s name. His son has written that he never discussed the matter
with his father.

220
R. Bleich’s handwritten letter consists of four sequential paragraphs. The first paragraph offers a
halakhic ruling on a subject that is distinct from brain death (which this student had presented before R.
Bleich simultaneous with the brain death question), viz. a practical question of possible accidental
kiddushin. That portion of the letter will therefore be omitted from the present recapitulation, as it resides
beyond the scope of the present essay.

96
4. In Be-Netivot ha-Halakhah, I have an entire section demonstrating that
no one has credibility to challenge posthumously a psak that has become
muchzak.” 221

To that effect, in an e-mail this student subsequently received from R. David


Shabtai, the latter enclosed a copy of a personal letter that R. Moshe Sherer sent to R.
Moshe David Tendler in 1991, protesting the latter’s testimony that R. Moshe Feinstein
equated brain death with death.222 On the contrary, counter-testifies R. Sherer: R. Moshe
Feinstein regarded brain dead patients as alive, and it is precisely for this reason that R.
Moshe Feinstein asked the Agudath Israel of America to engage in political lobbying to
stop the government from defining brain death as death. Thus, from R. Sherer’s letter it
presumably emerges that the “contemporary edut that was both ongoing in nature and
reiterated by Reb Moshe numerous times” to which R. Bleich refers [in R. Bleich’s
handwritten letter] means the directives that R. Moshe Feinstein provided R. Sherer.
However, it is unclear to this student whether R. Sherer’s counter-testimony is
sufficiently specific. When R. Sherer testifies that R. Moshe Feinstein rejected brain
death, it may possibly mean the so-called “brain death” where the patient can still
autonomously breathe, precisely the kind of so-called “brain death” rejected by R. Moshe
Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 146. [Quite apart from R. Sherer, this
consideration is certainly true for R. David Feinstein, whom R. Bleich invokes in point 3
of the above handwritten letter. Viz., it is clear that when R. David Feinstein professes
that he never spoke with his father regarding “brain death,” this means so-called “brain
death” where the patient can actually breathe. But if the patient cannot even
autonomously breathe, then R. David Feinstein indeed testifies that his father ruled that
the patient is dead.223]
In the opinion of this student, the uncertainty regarding R. Sherer’s testimony is
reflected in the words of R. Yonoson Rosenblum, Rabbi Sherer: The paramount Torah
spokesman of our era (Mesorah Publications, 2009), pp. 491-499. R. Rosenblum
catalogues R. Sherer’s lobbying at the New York State legislature regarding brain death.
Yet, from R. Rosenblum’s recapitulation of these events, it is unclear what exactly R.
Moshe Feinstein directed R. Sherer to advocate.
In context, R. Sherer – speaking for R. Feinstein – opposed the following
proposed legislative bill, tabled as Bill 4140/A:

“If artificial means of support preclude a determination that a person’s


spontaneous respiratory and circulatory functions have [irreversibly]
ceased, a person shall be pronounced dead if in the announced opinion of a

221
N.B. Regarding paragraph 2, R. Bleich writes twice writes “edut” (testimony) in Hebrew letters, which
has presently been recapitulated in English transliteration by way of italics. Regarding paragraph 4, R.
Bleich’s citation of his book Be-Netivot ha-Halakhah specifically refers to Vol. III of that series, pages 138
and 153.
222
The letter by R. Sherer was formulated in the immediate aftermath of the 1991 RCA healthcare proxy
form. That RCA healthcare proxy form reported that R. Moshe Feinstein equated brain death with death,
prompting R. Sherer to respond with a vigorous critique of that report.
223
The documentation of this position of R. David Feinstein is provided supra, note 190.

97
physician based on the ordinary standards of medical practice such person
has experienced a total and irreversible cessation of brain function.”224

In a unique English-language letter he dispatched on May 24, 1976 to


Assemblyman Herbert J. Miller of the New York state legislature,225 R. Moshe Feinstein
reacted to the above proposed legislative bill as follows:

“Dear Assemblyman Miller,

I have reviewed once again all the data relevant to Assembly Bill 4140/A,
a bill in relation to determination of death.

It is my carefully considered opinion that:

1) This bill as written is and has always been unacceptable.


2) Any bill defining death must contain the following clarification as I
wrote in my responsum:

“The sole definition of death is the total cessation of respiration.

In a patient presenting the clinical picture of death, i.e. no signs of life


such as movement or response to stimuli, the total cessation of
independent respiration, is an absolute proof that death has occurred.
This interruption of spontaneous breathing must be for a sufficient
length of time for resuscitation to be impossible (approx. 15 min.).

If such a “clinically dead” patient is on a respirator it is forbidden to


interrupt the respirator. However, when the respirator requires
servicing, the services may be withheld while the patient is carefully
and continuously monitored to detect any signs of independent
breathing no matter how feable. If such breathing motions do not
occur, it is a certainty that he is dead. If they do occur the respirator
shall be immediately restarted.”

I must emphasize that any bill which does not contain these criteria is
unacceptable.

224
Cited in the 5770 RCA Vaad Halacha study, footnote 148 (of the RCA Vaad Halacha study).
225
A chronological error is manifest in the 5770 RCA Vaad Halacha study, p. 60, where it is reported that
the letter to Assemblyman Miller was sent only after R. Feinstein met in his personal home with his two
sons, with R. Tendler and with R. Moshe Sherer to discuss the subject on May 25, 1976. The latter date
must be slighty imprecise, since the letter to Assemblyman Miller is actually dated May 24, 1976. See the
facsimile of the letter published by R. Tendler, Responsa of Rav Moshe Feinstein: Translation and
Commentary, p. 90. [This can be cited as a legitimate source of confusion in the brain death debate.]

98
3) In the event that these specific requirements will not be incorporated in
your bill, I strongly endorse and support the “religious exemption”
clause in the Governor’s Program Bill, a concept which is in keeping
with religious rights and social ethics.

Sincerely yours,

Rabbi Moshe Feinstein”

Thus, although this letter of R. Feinstein opposes defining death based on “a total
and irreversible cessation of brain function,” R. Feinstein proceeds to define death based
on “the total cessation of respiration.” Seemingly, then, the so-called “brain death” that
R. Feinstein rejects is not true brain death, but rather cerebral death where the brainstem
still functions. If so, it is not clear that there is any substantive difference between R.
David Feinstein’s testimony and R. Moshe Sherer’s testimony. Indeed, R. Tendler claims
that the above letter to Assemblyman Miller was actually drafted by R. Moshe Sherer
himself.226
The truth of the matter is that one may legitimately call into question whether R.
Moshe Feinstein actually understood English well enough to comprehend the above
letter. This is because in a responsum written eleven years earlier (1965), R. Feinstein
candidly confesses that he does not understand complex English, such that the phrase “I
consent to give a get to my wife plonit bat ploni227 without any compulsion or
conditions” had to be specifically translated from English to Hebrew for R. Feinstein to
comprehend.228 Furthermore, five years after that get responsum, R. Feinstein wrote a
1970 letter of approbation to R. Shimon Eider’s book The Halachos of Shabbos,
explicitly confessing that he [R. Feinstein] does not know English and that he therefore is
unable to read R. Eider’s book.
On the other hand, one might arguably counter that in the several years following
the publication of the Eider book, R. Feinstein’s mastery of the English language
improved, such that by 1976 he was indeed able to comprehend the letter to
Assemblyman Miller. After all, in R. Feinstein’s subsequent letter of approbation [dated

226
R. Tendler, Responsa of Rav Moshe: Translation and Commentary, p. 88.[Cf. R. Rosenblum, Rabbi
Sherer: The paramount Torah spokesman of our era, p. 493, who reports that “Rabbi Sherer reported to
Rabbi Feinsten, who responded with a letter to Assemblyman Miller, in whose committee the bill was
pending.” From R. Rosenblum’s description, it is not clear who actually drafted the letter, and thus there is
no a priori reason to assume that R. Rosenblum contests R. Tendler on this particular detail.]
227
The identifying name is omitted from R. Feinstein’s published responsum.
228
Iggerot Mosheh, Even ha-Ezer III, no. 44, p. 489, right-hand column, lines 1-4. The responsum was
written on 29 Shevat, 5725, corresponding on the secular calendar to Feb. 1, 1965. [Although an analysis of
the substantive content of that responsum (which deals with the question of voluntary vs. coerced gittin) is
beyond the scope of the present essay, it is comprehensively treated by this student in “A Combination of
Two Halakhically Kosher Prenuptial Agreements to Benefit the Jewish Wife,” Section K of that essay,
available at <http://www.scribd.com/doc/176990434/Prenuptial-Agreements>.]

99
1980] to R. Yisroel Pinchos Bodner, The Halachos of Muktzeh (Lakewood, NJ: 1981), R.
Feinstein writes:

“Behold I have seen some of the composition of Ha-Rav ha-Ga’on R.


Yisroel Bodner shlit”a on hilkhot muktzeh and its concepts, arranged in a
systematic and clear manner in the English language that is spoken in our
country. It is an urgent matter that affects every Sabbath for every one,
and there is a lack of knowledge for the mass populace and even for Bnei
Torah. Everything [in the composition that I have seen] is orchestrated
with great care and formidable analysis. And also Ha-Rav ha-Ga’on
shlit”a would visit me to discuss the practical halakhah, and I saw in him
that he is plumbed the depths of the Halakhah in this, and [his
composition] is worthy to ascend on the royal table, and who is royalty –
the rabbis. Congratulations to him, and may he succeed to publish this
urgently important book, and to clarify the Halakhah in many difficult
matters in all dimensions of the Torah, to bring merit to the public. And on
this I am signing on the eve of Rosh Chodesh Elul, 5740.”

Seemingly, these remarks of R. Feinstein imply that he was capable of grasping


written English by 1980. If so, then R. Feinstein must have acquired a proficiency in
English sometime between 1970 and 1980, such that it is indeed possible that R.
Feinstein may have even known English in 1976, when the letter to Assemblyman Miller
was drafted. But, on the countervailing hand, perhaps all that R. Feinstein means in the
1980 letter is that he read the Hebrew appendix of R. Bodner’s composition, a fourteen-
page record of conversations with both R. Moshe Feinstein and R. Shlomo Zalman
Auerbach. After all, R. Feinstein only claims in the letter of approbation that he read
“some of the composition” [emphasis added]. Indeed, R. J. David Bleich has suggested
that R. Moshe Feinstein was never able to read English at any point in his physical
lifetime,229 according to which R. Bleich would perforce need to interpret the letter of
approbation to the Bodner book in the latter manner.
Further magnifying the puzzle surrounding the letter to Assemblyman Miller is
the following extraordinary and inescapable paradox: If R. Feinstein communicated with
the New York State legislature on this subject in 1976 in order to deliver his psak
halakhah, then one certainly would have expected him to communicate with the (higher
level) US federal government when, in 1980, it launched a “Defining Death” commission
through its President’s Commission for the Study of Ethical Problems in Medicine and

229
R. J. David Bleich, “Halakha and Brain Death: A Response,” Jewish Review (March 1990).
Interestingly, R. Bleich – in context – does not specifically address the 1976 letter to Assemblyman Miller,
but rather critiques R. Moshe David Tendler’s testimony that R. Moshe Feinstein read through the medical
records of brain dead patients. R. Bleich remonstrates: “I can also only marvel that Rabbi Feinstein, who
according to all reports, did not read English, was able to assimilate information recorded in medical
records – a task that is no mean feat for persons fluent in the language but lacking familiarity with medical
terminology.”
Cf. R. Moshe Feinstein’s 1976 letter of approbation to the Artscroll English-language elucidation
of the Book of Ruth. R. Feinstein writes that his son R. David Feinstein read through the English
manuscript, but is silent on whether he himself (R. Moshe Feinstein) could grasp the same English.

100
Biomedical and Behavorial Research. Yet, astonishingly, R. Feinstein never participated
in that commission which was devoted to the question of brain death. Instead, his two
disciples, R. J. David Bleich and R. Moshe David Tendler, both travelled to Washington,
D.C., to offer conflicting analyses before the commission. The following is the official
U.S. government summary of the presentations of R. Bleich and R. Tendler that were
delivered on July 17, 1980:

“Jewish writings do not deal directly with “brain death” but contain
passages susceptible to opposite readings. Rabbi Bleich interpreted Jewish
law to require a cessation of corporal blood blow, whether or not
spontaneous, as a prerequisite for determining death; Rabbi Tendler said
that the Jewish tradition would recognize complete cessation of brain
function as “physiological decapitation” and hence accept it as a basis for
declaring death.”230

In other words, even when R. Moshe Feinstein was physically alive and
(presumably) capable of communicating in 1980, he said nothing to the U.S. government
about brain death, and instead his two disciples were offering competing analyses.231
Whether R. Feinstein’s lack of facility of the English language [as manifest in his 1965
responsum and his 1970 letter of approbation] played a role in his absence from the 1980
commission testimony is not clear. [And, if R. Feinstein’s lack of facility of the English
language did play a role in his absence from the 1980 commission, it would also
retroactively call into question whether he could comprehend the 1976 letter to
Assemblyman Miller.]
The mysterious nature of R. Feinstein’s absence from the 1980 President’s
Commission is further highlighted by the fact that – just 1.5 years earlier, in late 1978 –
R. Feinstein did respond to a request from the Office of the US President on a separate
but thematically related medicolegal matter.232 As published in Iggerot Mosheh, Yoreh
De‘ah III, no. 140, R. Feinstein wrote the following responsum to R. Moshe Sherer, in
the latter’s capacity as President and Director of Agudath Israel of America, dated the

230
President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral
Research, Defining Death: Medical, Legal and Ethical Issues in the Determination of Death (US
Government Printing Office, 1981), p. 11. [The timing of the presentations by R. Bleich and R. Tendler is
identified on p. 9 of the same report “as a day of testimony and discussion... in July 1980.” The more
precise date of July 17, 1980 is supplied by R. Bleich when he recapitulates that experience in
Contemporary Halakhic Problems IV, p. 347.]
231
In point of fact, that R. Bleich and R. Tendler were in disagreement was already previously publicized in
a Torah periodical in Tradition 16:4 (Summer 1977), pp. 130-139, and le-havdil, in a secular periodical in
Journal of the American Medical Association 242 (Nov. 2, 1979), pp. 1985-1990, 2001-2002. [See Dr. Fred
Rosner, Medicine in the Mishneh Torah of Maimonides (KTAV Publishing, 1984), pp. 220-227.]
232
While silently ignored by almost all writers on the brain death question, this Iggerot Mosheh responsum
is cited by R. Joseph Shalom Eliashiv, Kovetz Teshuvot IV (Jerusalem, 5772), Yoreh De‘ah 135, in
explaining why he opposes organ donor cards. [N.B. That fourth volume of Kovetz Teshuvot was only
published after R. Eliashiv himself ascended to the Heavenly Academy.]

101
first day of Rosh Chodesh Kislev, 5739 [-N.B. one editorial comment will be inserted into
the translation by the present writer233]:

“Regarding that which he has been asked from Washington from the
Office of the President regarding use of organs from a deceased individual
– as directed by his will – for medical purposes, behold I am answering
briefly. For according to the law of the Torah, which the Sages of blessed
memory received one gentleman directly from the mouth of another going
back to Mosheh Rabbeinu, peace be upon him, that we received from
Sinai, there is no person with proprietorship over his body to instruct that
others should do anything with his body, and not even one organ of his
organs, even for purposes of achieving medical knowledge, and all the
more so that his children and relatives are not proprietors over this. And
even without this, it is forbidden to gain benefit from the body of a person
and even from one organ, but rather we are obligated to bury him
immediately when possible on the same day [as death is diagnosed
according to Halakhah (-Shalom C. Spira’s editorial insertion)234] without
any change to his body, and it is forbidden to surgically manipulate his
body – even with a single incision – but rather one is obligated to bury
him in his completeness just as he was at the moment that he died.”

Yet another enigma that arises from the 1980 President’s Commission is that R.
Bleich testified, with prior authorization, that R. Jacob Kaminetzky rules that a brain dead
patient is alive by virtue of his cardiac activity.235 As is well known, R. Kaminetzky was
a close ally of R. Feinstein,236 and – as emerged from the President’s Commission – R.

233
See infra, note 234.
234
This editorial insertion is imperative, for otherwise, this responsum would wreak havoc with R.
Feinstein’s other responsa (Iggerot Mosheh, Yoreh De‘ah II, nos. 146 and 174; Yoreh De‘ah III, no. 132,
Choshen Mishpat II, nos. 72-73) which insist that there is a diagnosis of death defined by Torah law, before
which it is absolutely forbidden to bury a patient. [Indeed, the point is obvious. Viz., since the Mishnah,
Yoma 83a, requires desecrating the Sabbath in order to excavate a patient who has been buried alive, we
ourselves certainly cannot bury a patient who is suspected to still be alive. Rather, there must be a
definition of death professed by the Torah, only after its arrival does the mitzvah to bury a patient become
activated. See R. Moshe Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah 338.]
235
R. Bleich, Contemporary Halakhic Problems IV, p. 347. As recorded there, R. Bleich further testified
[with prior authorization] that R. Shlomo Zalman Auerbach, R. Jacob Ruderman and R. Isaac Hutner
likewise consider a brain dead patient to be alive.
236
See, for example, R. Aryeh Kaplan, “A “Get” in Monsey,” Jewish Observer, Dec. 1976, who reports
that when the question arose in 1973 of how to write a get in Monsey for the first time [viz. how to
geographically describe Monsey in the text of the get], both R. Kaminetzky as well as R. Feinstein [when
each approached individually by three members of the Monsey kollel] absolutely refused to render a
halakhic decision on this weighty matter without consulting the other. It was only after R. Feinstein and R.
Kaminetzky met together and discussed the matter in detail [first privately among themselves, and then at
an expanded meeting which included the three Monsey kollel members] and arrived at a consensual
halakhic ruling as to the correct formulation [-and, furthermore, received approval for their consensual
ruling from R. Yechezkel Roth, R. Moshe Stern, R. Moshe Neuschloss and R. Nathan Horowitz] that the

102
Feinstein and R. Kaminetzky were now at odds on a matter of piku’ach nefesh. It appears
strange that these two luminaries, despite subsequently meeting together,237 never
addressed the fact that they were in dispute on a matter of life and death.238

first get was finally written in Monsey on Oct. 29, 1975. [That report is posthumously republished by R.
Kaplan’s widow in The Aryeh Kaplan Reader (Mesorah Publications, 1983), pp. 74-82.]
237
See R. Shimon Finkelman, Reb Moshe: The Life and Ideals of HaGaon Rabbi Moshe Feinstein
(Mesorah Publications, revised and expanded edition, 2011), pp. 228-229, for photographs and accounts of
how R. Feinstein and R. Kaminetzky met in 1983 as well as in 1984. Not a word is mentioned about their
brain death debate.
238
Although, as reported by Gina Kolata, “FDA Speeds Approval of Cyclosporin,” Science 221:4617 (Sept.
23, 1983), p. 1273, the FDA first approved of cyclosporin [the anti-immune drug which would henceforth
save the lives of heart transplant recipients] on Sept. 2, 1983, nevertheless even before that scientific
milestone, the debate between R. Feinstein vs. R. Kaminetzky would have been relevant to whether or not
there is a mitzvah to maintain the brain dead patient in the ICU. [Indeed, as documented on pp. 135-146 of
the President’s Commission report (referenced supra, note 230), numerous US courts had already hosted
legal battles over the status of brain death, rendering this topic a cause célèbre, obviously even before the
FDA approval of cyclosporin.] Accordingly, that R. Feinstein and R. Kaminetzky did not clarify this debate
between themselves – after it became publicly manifest through the 1980 President’s Commission – is
remarkable. [And furthermore, as referenced supra, note 237, R. Feinstein and R. Kaminetzky met together
in 1984, even after the FDA approved of cyclosporin. Thus, R. Feinstein and R. Kaminetzky’s inability to
communicate with one another regarding brain death seems bizarre.]
The truth of the matter is that R. Feinstein and R. Kaminetzky’s mutual states of physical health
were declining during that same time period, as reflected (for example) in the report that R. Feinstein was
too ill to attend the 1982 Daf Yomi Siyum ha-Shas at Felt Forum in Madison Square Garden, despite the
original plan that he would speak at that event. [See R. Finkelman, loc. cit., pp. 244-245.] Perhaps we can
therefore speculate that their declining states of physical health prevented them from properly discussing
the brain death problem.
Additionally, perhaps we can speculate that R. Feinstein and R. Kaminetzky’s mutual energies
were simultaneously drained by the dispute (which commenced in 1982) between R. Elazar Menachem
Man Shach and R. Yechiel Michel Feinstein on how to manage the passing of R. Shneur Kotler, the late
rosh yeshivah of Beth Midrash Gavoha in Lakewood, NJ. Specifically, R. Shach was of the view that R.
Shneur Kotler’s surviving son R. Aryeh Malkiel Kotler should inherit his late father’s position of rosh
yeshivah, whereas R. Yechiel Michel Feinstein was of the view that R. Aryeh Malkiel Kotler should return
home to his righteous wife Ms. Hinda Feinstein (the righteous daughter of R. Yechiel Michel Feinstein) in
the Holy Land (as Ms. Hinda Feinstein was indeed requesting, and as of the date of the publication of this
essay, continues to request). At least one hundred rabbis [and perhaps more] were asked to adjudicate this
debate, and it is logical to assume that many of them first consulted with R. Moshe Feinstein and R. Jacob
Kaminetzky for guidance. [N.B. An analysis of that debate is beyond the scope of the present essay. Suffice
it to say that (in a telephone conversation of March 3, 2015) R. Bleich informed this student that R. Aharon
Soloveitchik vindicated Ms. Hinda Feinstein, and that R. Bleich concurs. Indeed, during that same
telephone conversation, this student proposed that one possible remedy would be to honour the righteous
Ms. Hinda Feinstein with a speaking opportunity at a future Daf Yomi Siyum ha-Shas, thus
counterbalancing the honour that was accorded to her husband at the 2012 Daf Yomi Siyum ha-Shas(*). Cf.
R. Ovadiah Yosef, Teshuvot Yabi‘a Omer VII, Even ha-Ezer no. 2, who approvingly cites the Vilna Ga’on
as having authorized (at least in principle) the concept of a sanctified bigamy under special circumstances.
Yabi’a Omer preconditions the acceptability of following Vilna Ga’on’s authorization on the husband
supporting each wife in a separate home. If so, then an additional possible remedy could be proposed
whereby R. Kotler will teach at least half of each year in the Holy Land. Cf. the Emet Kneh pamphlet (Vaad
le-Emet va-Tzedek, 3rd edition, 5745) likewise devoted to finding a solution that is mutually acceptable to
all the parties, recapitulated at <http://www.scribd.com/document/385918945/Emet-Kneh>.] Accordingly,
so preoccupied were R. Moshe Feinstein and R. Jacob Kaminetzky with the challenge that “the Sages were
diligently concerned for the welfare of the daughters of Israel” (Gemara, Ketubot 2a) – as specifically

103
In the end, the sum total of the above calculation is that it is not clear to this
student whether R. Moshe Sherer’s testimony contradicts R. David Feinstein, R. Moshe
David Tendler and R. Shabtai Rappaport. Similarly, the testimonies of R. Aaron Felder
and R. Shmuel Fuerst [documented in the RCA Vaad Halacha 5770 study, pp. 61-62] –
who both understand R. Moshe Feinstein to have considered brain dead patients to be
alive – may likewise have actually been referring to so-called “brain death,” where the
patient can still autonomously breathe, as in Iggerot Mosheh, Yoreh De‘ah II, no. 146.
Of course, one might reciprocally reverse the tables and counter that it is R. David
Feinstein, R. Moshe David Tendler and R. Shabtai Rappaport who misunderstood what
they heard directly from R. Moshe Feinstein. Nevertheless, the reality is that R. Tendler
enjoyed the most practical apprenticeship with R. Moshe Feinstein in having
accompanied him to the ICU and showing him the medical treatment of comatose
patients, as indeed reflected in Iggerot Mosheh, Yoreh De‘ah III, no. 132, addressed as it
is to R. Tendler. While it is true that R. Sherer’s countervailing practical apprenticeship is
clearly reflected in the separate responsum addressed to him (Iggerot Mosheh, Yoreh
De‘ah III, no. 140), nevertheless the responsum addressed to R. Tendler more directly
focuses on the definition of death. Since the “practical apprenticeship of Torah is greater
than its study” (as per the Gemara, Berakhot 7b), it is the joint testimony of R. David
Feinstein, R. Moshe David Tendler and R. Shabtai Rappaport that appears superior to the
joint testimony of R. Moshe Sherer, R. Aaron Felder and R. Shmuel Fuerst. Ergo, this
student is inclined toward concluding that Tosafot to Yevamot 77a requires us to accept
the joint testimony of the joint testimony of R. David Feinstein, R. Moshe David Tendler
and R. Shabtai Rappaport.
Although, as reported earlier in this section, R. Bleich is opposed to this student’s
methodology on how to evaluate the oral record of R. Moshe Feinstein, it should be
remembered that R. Bleich has himself erred (be-mechilat Kevod Torato) in translating
the responsum of Chatam Sofer that is so central to R. Feinstein’s approach. Namely, R.
Bleich writes:

applied to the plight of the righteous Ms. Hinda Feinstein – answering possibly as many as one hundred
different rabbinic interlocutors [and perhaps even more] to this effect, that they may have been unable to
properly discuss the alternative topic of brain death. [And see R. Finkelman, loc. cit., p. 462, who reports
that R. Feinstein was in “poor physical state” at the time that R. Shneur Kotler ascended to the Heavenly
Academy.]

(*)=Yet, even as this represents a conclusion in favour of R. Yechiel Michel Feinstein and against R.
Shach, this student would add that it seems to this student that R. Shach was correct on an entirely separate
matter which occurred coterminously with R. Feinstein’s physical life. Namely, for the funeral of R. Moshe
Feinstein in the Land of Israel, R. Shach insisted that it must not be orchestrated at night, since there would
be a danger created by the large assembly accompanying the bier under conditions of poor visibility. See R.
Finkelman, loc. cit., pp. 493-494. R. Shach’s concerns appear to have been substantiated three decades later
at the funeral of R. Shmuel ha-Levi Wosner. Without seeking to point an accusatory finger, and
recognizing that “ve-amekh kulam tzddikim” (Isaiah 60:21), it seems clear to this student that the
experience at the funeral of R. Wosner demonstrates the halakhic imperative to avoid nighttime funerals
under contemporary conditions, exactly as R. Shach professed.

104
“Chatam Sofer, Yoreh De‘ah, no. 338, states that a patient may be
pronounced dead only if three criteria are manifest: 1) the patient lies as an
“inanimate stone”; 2) no pulse beat is discernible; and 3) respiration has
ceased. Chatam Sofer adds a forceful comment: “These are three clinical
symptoms of death which have been transmitted to us from the time that
the nation of [the Holy One, Blessed Be He] became a holy people. All the
forces in the universe will not cause us to deviate from the position of our
Holy Torah.”238a

Alas, a careful examination of the original responsum reveals that Chatam Sofer
does not write “these are three clinical symptoms of death which have been transmitted to
us” (as R. Bleich claims), but rather Chatam Sofer actually writes “this is the
measurement of death which has been transmitted to us.” Indeed, the paragraph of
Chatam Sofer in which the sentence in question appears (viz. the paragraph that begins
ve-lomar nafal mapolet shanei) refers only to respiratory arrest, standing in
contradistinction to later passages in the same responsum of Chatam Sofer that also
mention circulatory arrest.238b Thus, once we correct for R. Bleich’s mistranslation, it is
becomes reasonable to accept that R. Moshe Feinstein may have orally interpreted the
ambivalence within Chatam Sofer [of sometimes referring only to respiratory arrest and
other times to respiratory plus circulatory arrest] to assign significance to a heartbeat only
if it is fuelled by a patient’s independent breathing, as R. Shabtai Rappaport testifies.238c
Indeed, R. Bleich himself, in at least one instance, seems to have been willing to
generously tolerate the dissenting approach of this student. Namely, in Contemporary
Halakhic Problems IV, p. 344, R. Bleich addresses [in a footnote] the posthumously
published letter of R. Feinstein which seems to equate brain death with death. R. Bleich
dismisses the posthumously published letter, claiming (inter alia) that the letter is dated
Rosh Chodesh Kislev 5745, such that “physicians entirely familiar with Rabbi Feinstein’s
condition at the time have advised that in light of his illness the letter be given no
credence.”239 Nevertheless, R. Bleich proceeds further on p. 345:

238a
Tradition 16:4 (Summer 1977), p. 135, subsequently republished by R. Bleich [with bold font
presentation, but regrettably with the same mistranslation as before] in Time of Death in Jewish Law (Z.
Berman Publishing, 1991), pp. 56-57.
238b
I am grateful to R. Daniel Reifman, “Ancient Sources, Modern Problems: A Methodological Analysis
of the Hatam Sofer’s Position on Brainstem Death” (Tradition 46:3, Spring 2013), p. 48, for correctly
identifying R. Bleich’s mistranslation.
238c
This can be cited as a legitimate source of confusion in the brain death debate.
239
In the opinion of this student, R. Bleich’s initial claim [viz. to dismiss the posthumously published letter
on account R. Feinstein’s poor health] would pose an epistemological contradiction to what he writes on
the very next page of Contemporary Halakhic Problems IV (viz. p. 345), where R. Bleich posits [in the
main text of that work] that since R. Feinstein published Iggerot Mosheh, Choshen Mishpat II, no. 72
[which forbids heart transplants], during 5745, about a year before R. Feinstein ascended to the Heavenly
Academy, therefore we know for sure that R. Feinstein rejected brain death. Alas, this seems to be an
epistemological contradiction on the part of R. Bleich (be-mechilat Kevod Torato shel Mori ve-Rebbi),
because the seventh volume of Iggerot Mosheh was published (according to R. Feinstein’s introduction) on
15 Shevat, 5745, which is 2.5 months after the letter of Rosh Chodesh Kislev was written. Thus, if R.
Bleich believes that the Rosh Chodesh Kislev letter be granted no credence due to R. Feinstein’s

105
“Moreover, even were the letter to be accepted as the considered opinion
of Rabbi Feinstein, in view of the fact that respiratory death is expressly
rejected by Rashi, Me’iri, Ḥakham Ẓevi and Ḥatam Sofer, it is difficult to
envision acceptance of the contrary opinion of a contemporary scholar as
dispositive, particularly when that opinion is expressed without a rebuttal
of the position of earlier authorities.”

Thus, R. Bleich is willing to hypothetically concede for argument’s sake that R.


Feinstein may have regarded brain death as death, with the caveat that we must
nevertheless bypass R. Feinstein on this particular matter of piku’ach nefesh. So, this is
the path which this student is inclined to conclude is actually true according to the
principles of epistemology established by the Oral Torah: to acknowledge that R.
Feinstein personally ruled that a brain dead patient is dead, but to nevertheless demand
that we bypass R. Feinstein’s ruling, due to the countervailing position of R. Jacob
Kaminetzky which creates a doubt regarding piku’ach nefesh, whereupon we must err on
the side of life.240 The substantive basis for R. Kaminetzky’s challenge will be explored
in the next section.241

incapacitation on account of R. Feinstein’s final illness, a fortiori there can be no significance granted to
the subsequent publication of Iggerot Mosheh, Choshen Mishpat II, no. 72 [or indeed anything published in
the seventh volume of Iggerot Mosheh.]
Fortuitously, R. Bleich appears to have resolved this epistemological contradiction in a more
recent publication. Namely, in Contemporary Halakhic Problems VII, p. 150, R. Bleich cites a source
which calls into question the provenance of many of the responsa found in the seventh volume of Iggerot
Mosheh. [Apparently, then, this constitutes a de facto retraction of R. Bleich’s previous argument that
Iggerot Mosheh, Choshen Mishpat II, no. 72 should serve as a proof on the brain death debate.]
The truth of the matter is that in sixty-five other responsa contained within that same seventh
volume of Iggerot Mosheh, R. Feinstein found it necessary to issue emendations after the book was
originally published. This has led to two types of Iggerot Mosheh Vol. 7 circulating in study halls: the
original (released in Israel by Yeshivat Ohel Yosef Printers and in the United States by Noble Book Press
Corporation) and the emended edition (released by Moriah Offset Company of Brooklyn, NY). [For a full
catalogue of these 65 emendations, see this writer’s “A Combination of Two Halakhically Kosher
Prenuptial Agreements to Benefit the Jewish Wife,” <http://www.scribd.com/doc/176990434/Prenuptial-
Agreements>, footnote 100.] Presumably, these sixty-five emendations reflect the fact that R. Feinstein was
in poor health when he published that seventh volume of Iggerot Mosheh. [Note, however, that Choshen
Mishpat II, no. 72 is not one of the sixty-five responsa.]
Cf. R. Shabtai, Defining the Moment, p. 249, who mistakenly claims that in Iggerot Mosheh,
Choshen Mishpat II, no. 72, R. Feinstein references his previous responsum of Yoreh De‘ah II, no. 174,
which identifies cardiac activity as a sign of life. Alas, R. Shabtai (be-mechilat Kevod Torato) simply
misread R. Feinstein’s responsa. The responsum of R. Feinstein which identifies cardiac activity as a sign
of life is Yoreh De‘ah II, no. 146 [not Yoreh De‘ah II, no. 174], and indeed Yoreh De‘ah II, no. 146 is never
mentioned in Choshen Mishpat II, no. 72.
This can be cited as one of the legitimate sources of confusion in the brain death debate.
240
The Mishnah, Yoma 83a, establishes that all doubts regarding piku’ach nefesh are adjudicated to the side
of desecrating Shabbat for the sake of piku’ach nefesh intervention. [Likewise, Encyclopedia Talmudit IX,
s.v. halakhah, text accompanying footnote 352 of that entry, derives from the Gemara, Shabbat 129a (“sfek
nefashot le-hakel”) that on any legitimate dispute among the poskim regarding desecration of Shabbat for
purposes of piku’ah nefesh, we are permitted to follow the position which authorizes desecration
of Shabbat. The same methodological application of sfek nefashot le-hakel is developed by R. Moshe
Feinstein, Iggerot Mosheh, Yoreh De‘ah II, no. 146, pp. 250-251, paragraphs s.v. ve-yihiyeh nicha, ve-al

106
X. THE ORAL RECORD II: RABBI JACOB
KAMINETZKY

As explained in the previous section, although the written responsa of R. Moshe


Feinstein are open to multiple competing interpretations in terms of how he defined
death, nevertheless from an exhaustive consideration of the oral record – as analyzed
through the prism of Tosafot, Yevamot 77a – it seems to this student that R. Shabtai
Rappaport’s testimony represents the most accurate description of R. Feinstein’s position.
Namely, although it is true that Chatam Sofer maintains that pulse is a sign of life, that is
only so when the pulse occurs due to the enjoyment of the oxygen naturally inhaled by
the patient. The last manifestation of the enjoyment of the last breath a patient took is
when the heart contracts for the last time. But when oxygen is artificially pumped by a
respirator into an irrevocably non-breathing patient, the Chatam Sofer would agree that
the patient is dead, even if the patient’s circulation continues. That circulation is an
artificial circulation which is not the result of a patient’s own breathing, and which the
Chatam Sofer would not reckon as a sign of life.
At the same time, the same Tosafot to Yevamot 77a which requires us to accept
the testimony that R. Moshe Feinstein regarded a brain dead patient as dead also requires
us to accept the countervailing testimony that R. Jacob Kaminetzky242 regarded a brain
dead patient as alive. Thus, we now turn our attention to investigating whether there is
any substance to R. Kaminetzky’s position to challenge R. Feinstein. Indeed there is,
based on the Rishonim who recognize a breathless heartbeat as a sign of life [catalogued
above, Section Q] as follows:

zeh, ve-ta‘amo nir’eh, and u-le-feirush rishon.] To that effect, the verse which the Gemara, Yoma 85b,
invokes as the source for authorization to desecrate the Sabbath even for doubtful piku’ach nefesh, viz.
Leviticus 18:5, is understood by Tashbetz III, no. 37 (s.v. ve-ha-Ramban) to constitute an obligation. Thus,
whenever one is entitled to desecrate the Sabbath to doubtfully save a life, one is actually obligated to do
so.
Reaching a parallel conclusion from the opposite perspective, in an e-mail [received by this
student] on Sept. 9, 2009, R. Bleich wrote [in the context of abortion for Noahides] that the principle mai
chazit presented by the Gemara, Sanhedrin 74a (viz. why do you see that your blood is redder, perhaps the
blood of your fellow is redder) prohibits any action that may possibly take an innocent victim’s life, even if
justified by a compounded doubt to the side of leniency.
Accordingly, both from the perspective of the laws of saving life, and from the inverse
perspective of the laws of homicide, a compounded doubt to the side of leniency is inadequate.
241
R. Bleich’s aforementioned description of the basis for R. Kaminetzky’s challenge against R. Feinstein
as being “Rashi, Me’iri, Ḥakham Ẓevi and Ḥatam Sofer” is an oversimplification on R. Bleich’s part (be-
mechilat Kevod Torato), due to the following calculation. Rashi is actually a “wild card Rishon,” as
explained supra, Section E. Chakham Tzvi in its totality is a non sequitur, as demonstrated supra, Section
A. And Chatam Sofer can prima facie be hypothetically elucidated in a manner harmonious with R.
Feinstein, as we have seen here in Section W.
Rather, the actual reason(s) that R. Kaminetzky serves as a credible challenge against R. Feinstein
will be elucidated infra, Section X.
242
Cited supra, note 235 and accompanying text.

107
(1) Rambam and Shulchan Arukh: We saw in Section W that R. Feinstein
assumes that Rambam [whose formulation seems to be paraphrased by Shulchan Arukh]
only considers fluttering to be a sign of life when it is fuelled by a patient’s autonomous
respiration. However, we might hypothesize that R. Kaminetzky could have challenged
this with the following rationale:

(a) Perhaps Rambam considers fluttering to be an absolute sign of life based on


Sifrei to Numbers 19:13, even independent of respiration. Although Yoma 85a
emphasizes respiratory arrest in the context of death, perhaps (as Maharsham
arguably seems to indicate,242a contrary to R. Feinstein) Yoma 85a only
presents respiratory arrest as the most convenient form of diagnosis of death,
but not as the true cause of death. Viz., in most patients, death is most reliably
diagnosed by respiratory arrest, but respiratory arrest is not the true cause of
death. Rather, other than the case of anatomical decapitation, the true cause of
death is the cessation of all fluttering, as per Sifrei to Numbers 19:13.
(b) Alternatively, even if it is true that Rambam considers fluttering to only be a
sign of life when it is fuelled by a patient’s autonomous respiration, perhaps
this would not necessarily prove that a brain dead patient is definitely dead,
because we would have to first survery a dispute among the poskim in terms
of how far we consider temporally divorced physiological cause and effect.
[Viz. one might hypothetically claim that the oxygen autonomously inhaled
by the patient before he entered the state of brain death continues to legally
benefit his fluttering (i.e. his heartbeat) even after brain death.] Namely, in the
classically debated question of drinking milk on Pesach from a cow that has
eaten chametz on that very same Pesach, some poskim permit it because of the
fact that the cow also ate permitted food before Pesach begun, and so (they
claim) it is a situation of zeh ve-zeh gorem.243 The food that was eaten, even a

242a
See supra, note 137.
243
Zeh ve-zeh gorem, subject to a tannaitic dispute in Avodah Zarah 49a, is accepted as a normative
principle by the Rambam, Hilkhot Avodat Kokhavim 7:14 and Shulchan Arukh, Yoreh De‘ah 142:11. Rashi
to Avodah Zarah 49a (s.v. mai lav ha) explains that even if an animal has recently been fed exclusively
with idolatrous foods, zeh ve-zeh gorem dictates that the animal be permitted on account of the kosher
foods it ate many days previously.
Accordingly, the Rema to Yoreh De’ah 60:1 rules that an animal that has been nourished by
forbidden foodstuffs is itself permissible, whereas an animal that was nourished entirely (for its whole life)
by forbidden foodstuffs is prohibited. The apparent difference between the two cases is that the former is an
instance of zeh ve-zeh gorem, whereas the latter is not. Shakh (§5) understands that the Rema speaks only
of forbidden foodstuffs whose benefit is also enjoined, whereas Bi’ur ha-Gra (§1) explains that the Rema is
referring to all non-kosher foods, even ones whose benefit is permitted. Either way, we see that it is
possible for an animal to begin its life eating kosher foods, then to switch to an exclusive diet of forbidden
foods, and still retain the status of a permitted creature because of the permitted food it ingested a long time
ago. The food ingested long ago continues to impact upon the life of the creature.
Teshuvot Avnei Milu’im no. 7 (s.v. u-ve-Mordekhai) explicitly articulates this point, observing
that, according to Mordekhai (one of the key sources for the Rema’s ruling), the two factors for zeh ve-zeh
gorem need not be simultaneous. Avnei Milu’im proceeds to observe that Rambam (Hilkhot Ma’akhalot
Assurot 16:24) apparently disputes this contention with his ruling that a pot of food cooked, first by the fuel
of orlah or kil’ei ha-kerem and then by the fuel of permitted wood, is actually forbidden. Avnei Milu’im
concludes that the matter requires further analysis. [However, it may be simply noted that Rambam’s fact

108
long time ago, allegedly continues to halakhically maintain a natural impact
upon the life of the animal. Likewise, if a brain dead patient is being
ventilated by a respirator, his heart is presently beating – not only thanks to
the oxygen being presently pumped into him by the respirator – but also
because of the oxygen he originally breathed before he became brain dead.
Thus, we might hypothesize that those poskim who apply zeh ve-zeh gorem to
temporally divorced elements (and therefore justify the Pesach consumption
of the milk) will categorize the brain dead patient’s heart beat as being
naturally fuelled by his own respiration, whereas those poskim who refuse to
apply zeh ve-zeh gorem to temporally divorced elements (and therefore forbid
the Pesach consumption of the milk when predicated solely on zeh ve-zeh
gorem grounds) will categorize the brain dead patient’s heart beat as being
artificial.
As such, R. Moshe Feinstein, in reportedly declaring a brain dead
patient to be dead, was historically consistent with his own novel position
regarding Pesach milk enunciated in Iggerot Mosheh, Orach Chaim I, no. 147,
a position which places him at odds with Rema, Shakh and Gra.244 Ergo, we

pattern is not quite the same as Mordekhai’s. In Rambam’s situation, the food was already partially cooked
by the single-handed effects of a forbidden fuel before the permitted fuel was even introduced. That partial
cooking can never be reversed and so renders the food irrevocably contraindicated. In Mordekhai’s
situation, a living creature continues to be affected by food that was ingested long ago. Thus, Mordekhai’s
basic principle is not contradicted by Rambam. Moreover, Rambam actually holds that even an animal has
been fed its entire life with forbidden foodstuffs is kosher, as is evident from Hilkhot Issurei Mizbe’ach
3:14. Thus, Rambam must certainly distinguish between a pot of cooking food and a living creature!] In
any event, Rema rules like Mordekhai.
Of course, this alone does not demonstrate that the oxygen inhaled by a brain dead patient a long
time ago (before he became brain dead) necessarily impacts on his present heartbeat in the eyes of
Halakhah. Perhaps dead meat is a static object that is regarded as the cumulative effect of all the ingredients
of the animal when the animal used to be alive, whereas a live human heartbeat is a dynamic phenomenon
which depends only on the present ingredients the patient is receiving. However, since some poskim do
apply zeh ve-zeh gorem to the question of drinking milk from a live cow on Pesach, it becomes evident that
(in their opinion) even present physiology is halakhically regarded as the effect of past ingredients. [See
Appendix D for a survey of poskim who espouse this position.] Although one may object that, without the
artificial ventilator, the patient’s heartbeat would stop, exactly the same is true for the animal. Without
having eaten chametz in recent days, the cow would have surely stopped producing milk (and perhaps even
starved to death, depending on how many days of the Pesach festival have already elapsed), yet the cow’s
milk is still regarded as the life-product of not only the chametz it is eating on Pesach, but even of the food
it ate before Pesach commenced. Mutatis mutandis, the heartbeat of a brain dead patient could be
considered as natural.
244
R. Feinstein explains the Rema to Yoreh De’ah 60:1 in a highly novel manner, rejecting both Shakh and
Gra (referenced supra, note 243), and instead insisting that Rema was enunciating a radical minority view
that regards a creature as a direct product of what it eats (as per ha-yotzei min ha-assur assur). Since,
according to R. Feinstein’s detailed calculation, the vast majority of poskim do not regard a creature as a
direct product of what it eats (seeing as the food is digestively destroyed in the animal’s gastrointestinal
tract), the Rema’s view is ultimately to be dismissed. Accordingly, R. Feinstein permits eating the flesh or
drinking the milk of an animal which was nourished its entire life on forbidden foodstuffs. Likewise, he
permits drinking milk on Pesach from a chametz-eating cow (though he does recommend that a ba‘al
nefesh refrain from doing so if the cow was possessed by a Jew).

109
might conjecture that R. Jacob Kaminetzky disagreed with R. Feinstein in
light of the poskim who do apply zeh ve-zeh gorem in the context of chametz
eaten by the dairy cow to include temporally divorced elements. Viz. we
might speculate that R. Kaminetzky envisaged a safek whether a brain dead
patient is truly dead, or whether the brain dead patient is still legally stuck on
his last breath (analogous to an extended teki‘ah gedolah).245

(2) Me’iri: We reasoned in Section W that R. Feinstein must reject Me’iri


because of R. Feinstein’s general approach to rejecting new discovered manuscripts as a
source of halakhic information. However, R. Kaminetzky may have anticipated the
countervailing view of R. Lichtenstein and R. Ovadiah Yosef246 to accept the Me’iri as a
source of halakhic information, at least for purposes of stringency. And Me’iri to Yoma

Indeed, R. Yom Tov ha-Levi Schwarz, Ma‘aneh la-Iggerot, p. 12, right-hand column, lines 26-28,
critiques R. Feinstein for dismissing this very same Rema; and then on p. 15, right-hand column, lines 23-
25, critiques R. Feinstein for dismissing this very same Gra.
245
Thus we can understand why R. Shlomo Zalman Auerbach – while declaring that we can normally never
deactivate the ventilator from a moribund patient because we do not know in the modern medical era which
patient classifies as a gossess [to whom one might hypothetically apply the authorization of Rema to
Shulchan Arukh Yoreh De‘ah 339:1 to remove an impediment to the departure of the soul] – uniquely
allows deactivating the ventilator in the case of a brain dead patient. The reason R. Auerbach will allow
such a “passive euthanasia” exception in the case of a brain dead patient (and absolutely no other moribund
patient) is because a brain dead patient is doubtfully stuck on his last breath, doubtfully dead, and thus we
know for sure that according to the most optimistic diagnosis possible, the brain dead patient is no more
than a gossess.
The foregoing analysis in the previous paragraph of this footnote (regarding deactivating the
ventilator of a brain dead patient) is offered only for purposes of elucidating R. Auerbach’s reasoning. In
practical terms, we cannot ever – under any circumstances – actually deactivate the ventilator of a brain
dead patient, due to the following three cogent objections against R. Auerbach offered by R. Bleich,
Contemporary Halakhic Problems IV, p. 348 [-and to that effect, R. Bleich prefaces his remonstrations
with the observation that R. Auerbach himself cautions that others are welcome to disagree with him]: (a)
Perhaps a brain dead patient is not merely a gossess, but is actually a regular living patient, seeing as many
brain dead patients continue to maintain a heartbeat longer than 72 hours, in which case there is an
obligation to heroically treat the brain dead patient like any other dangerously ill patient(*); (b) Even if the
brain dead patient is a gossess, perhaps the Rema to Shulchan Arukh Yoreh De‘ah 339:1 only permits
removing metaphysical impediments to the departure of the soul, but actual medical therapy that through
scientific cause-and-effect maintains the patient must be heroically maintained even in the situation of a
gossess, no less so than any other dangerously ill patient; (c) Perhaps deactivation of a ventilator is not
merely passive euthanasia, but is rather active euthanasia, which cannot be countenanced under any
circumstances.
Quite apart from R. Bleich’s cogent objections against R. Auerbach, R. Avraham S. Avraham is
quoted by both the 5770 RCA Vaad Halacha study, p. 68, as well as by R. Shabtai, Defining the Moment, p.
330, as having ultimately withdrawn his permission to deactivate to ventilator on which a brain dead patient
is dependent. In effect, then, R. Avraham S. Avraham is testifying that R. Auerbach [to some extent]
presciently conceded to R. Bleich’s objection(s).

[(*)=See infra, note 250, where R. Joseph Shalom Eliashiv is quoted by R. Avraham Steinberg as
similarly ruling that a brain dead patient is not merely a gossess, but is actually a regular living, albeit
dangerously ill, patient. Cf. the contradictory testimony of R. Hershel Schachter in that same footnote.]
246
See supra, notes 90 and 95.

110
23a clearly states that – other than the case of anatomical decapitation – all fluttering is a
sign of life. Furthermore, we advanced a supplementary peripheral argument in Section
Q that given Rabbeinu Shimshon of Shantz’ declaration that all fluttering is a sign of
life, perhaps even those who normally reject Me’iri’s newly discovered manuscripts
might be more accommodating in this situation by reason of mi-mah nafshakh. Thus, R.
Kaminetzky – potentially concerned for the position of Me’iri or Rabbeinu Shimshon of
Shantz – may have envisaged the brain dead patient to be possibly alive.
Of course, even if we accept Me’iri or Rabbeinu Shimshon of Shantz as
establishing that fluttering is a sign of life, the same way R. Rappaport reconciles R.
Feinstein with Chatam Sofer [ultimately meaning that R. Rappaport reconciles R.
Feinstein with Rambam], R. Rappaport can reconcile R. Feinstein with Me’iri or
Rabbeinu Shimshon of Shantz.246a Thus, the real basis for R. Kaminetzky’s challenge
against R. Feinstein resides in (1a) and (1b) regarding Rambam, as described above.

Given the above bases for R. Kaminetzky to challenge R. Feinstein, it is necessary


for us to consider – in arriving at a practical halakhic conclusion – that R. Feinstein
himself develops the methodological principle of sfek nefashot le-hakel, s.v. that where
there is an unresolved debate among the poskim regarding piku’ach nefesh, we follow the
position that says to desecrate the Sabbath for the patient.247 Additionally, R. Feinstein
himself recognizes the principle that if we are not experts on how to define death, we
must be cautious to delay burial until decomposition.248 Thus, it is not only R.
Kaminetzky who requires us to be stringent to treat the brain dead patient as doubtfully
alive, but the Oral Torah methodology espoused by R. Feinstein himself which directs us
to the same conclusion [even though – according to the oral record – R. Feinstein himself
ruled that brain death is indeed death, in all the practical cases with which he was
personally confronted].249
As such, it is helpful to distinguish between the various potential points of
contention between R. Feinstein and R. Kaminetzky. According to objection (1b), viz.
that the brain dead patient is doubtfully stuck on his last breath [because there is a doubt
whether the legal effect of the last breath taken before brain death occurred continues to
manifest itself in the continuing heartbeat after brain death], the brain dead patient is a
doubtful gossess, doubtfully dead.250 On the other hand, according to objection (1a),

For this reason, the introduction to the present essay is careful to qualify that Me’iri “probably”
246a

considers a brain dead patient as alive. [See supra, note 4b.] The qualifying term recognizes the
oppositional approach that might be gleaned from R. Shabtai Rappaport’s analysis.
247
See supra, note 240.
248
See supra, note 54.
249
It is also of interest to observe that R. Feinstein himself – in his theoretically oriented Dibberot Mosheh
[as distinct from his practically oriented Iggerot Mosheh] – concludes that the subject of physiological
decapitation requires further analysis. See supra, note 170. If so, this seemingly reinforces the case to treat
the brain dead patient as a matter of doubt, hence activating the mitzvah of safek piku’ach nefesh to
medically treat the brain dead patient.
250
Indeed, this practical conclusion was ultimately reached by R. Shlomo Zalman Auerbach. See R.
Shabtai, Defining the Moment, ch. 16. [However, in the opinion of this student, R. Auerbach (be-mechilat

111
cardiac activity would doubtfully represent an intrinsic sign of life, and there would be no
reason to categorize the brain dead patient as a doubtful gossess; rather he is doubtfully a
regular living patient. In sum total then, it seems to this student that the optimally
accurate halakhic description of the brain dead patient is as follows: “doubtfully alive,
doubtfully gossess, doubtfully dead” (safek chai, safek gossess, safek met). If so, there is
a mitzvah to medically treat the brain dead patient on the Sabbath [no less so than on
weekdays] so as to “save” [or doubtfully “save”] the patient’s doubtful so-called “life”.
Likewise, it is forbidden to deactivate the ventilator or harvest organs from the brain dead
patient.

Y. THE ORAL RECORD III: RABBI OVADIAH YOSEF

In the previous section, we argued that a brain dead patient is a safek chai, safek
gossess, safek met, based on the potential bases for R. Kaminetzky to challenge R.
Feinstein. Now, in the present section, we will verify that this conclusion is indeed
halakhically correct by comparing it with the analysis of R. Ovadiah Yosef.
Because R. Ovadiah Yosef’s analysis consists almost entirely of citations of how
other scholars have understood him or related to him, R. Ovadiah Yosef’s analysis is
presently termed part of the “oral record.” Viz., there is no responsum in any of the books
published by R. Ovadiah Yosef that directly addresses the question of brain death. This is
best illustrated by two of his responsa where he seems to conspicuously [perhaps almost
deliberately] avoid addressing the topic of brain death. Namely, R. Ovadiah Yosef,
Teshuvot Yabi‘a Omer IX, Choshen Mishpat no. 12 analyzes the subject of kidney
donation from a live donor. However, the obvious corollary of kidney donation from a
dead patient [potentially including a brain dead patient] is never discussed by Yabi‘a
Omer. Likewise, Teshuvot Yabi'a Omer X, Yoreh De‘ah no. 50 addresses in detail the
subject of removing an artificially implanted pacemaker from a dead patient in order to
save the life of another patient. However, the obvious corollary to this question, viz.
removing the heart from a brain dead patient to save the life of another patient, is never
discussed by Yabi'a Omer.

Kevod Torato) erred in his methodology – in terms of how he reached that conclusion – by assuming that
he was simply following R. Feinstein. As explained supra, Section W, it seems to this student that we are
required to accept the testimony of R. Tendler that R. Feinstein personally regarded a brain dead patient as
dead. Rather, R. Auerbach’s conclusion is halakhically correct because of the credible basis for R.
Kaminetzky’s challenge to R. Feinstein, as explained in the present Section X. Thus, what R. Auerbach
should have actualy written is that he is in a state of safek because R. Feinstein’s position is
counterbalanced by R. Kaminetzky’s position.]
According to R. Hershel Schachter, lecture of Sept. 10, 2006, available at
<http://www.yutorah.org/sidebar/lecture.cfm/716089/rabbi-hershel-schachter/time-of-death-cardiac-death-
in-jewish-law/>, 25:18-27:27 into the recording, this is likewise the practical conclusion of R. Joseph
Shalom Eliashiv. Viz., R. Schachter reports that he sent a copy of his responsum on brain death via an
acquaintance to R. Eliashiv, and R. Eliashiv responded – and asked that it be publicized in his name – that
he considers a brain dead patient to be doubtfully gossess, doubtfully dead.
By contradistinction, at a Torah in Motion conference which this student was privileged to attend
in Lake Placid, New York, on July 1-4, 2010, R. Avraham Steinberg announced that R. Eliashiv reacted to
R. Auerbach’s position by countering “Who says he’s a gossess? He’s a chai le-khol devarav (alive in
every respect)!”

112
As such, the following is the chronological sequence of events in the oral record
regarding R. Ovadiah Yosef’s analysis of brain death:

(a) R. Yitzchak Yosef, Yalkut Yosef, Hilkhot Shabbat IV (Jerusalem, 5754), pp. 276-277,
presents a section entitled Zman Kvi'at ha-Mavet lefi ha-Halakhah (“time of establishing
death according to Halakhah”). There, Yalkut Yosef observes that although
the Gemara, Yoma 85a and its codification in Rambam, Hilkhot Shabbat 2:19 as well
as Shulchan Arukh Orach Chaim 329:4 only overtly speak of cessation of respiration as
the criterion of death, Teshuvot Chatam Sofer, Yoreh De‘ah no. 338 has taught us that
two other criteria are also necessary for the pronouncement of death: cessation of motion
and cessation of circulation. Yalkut Yosef adds in brackets that it has occurred more than
once that no pulse was discovered in the head, but that a pulse was discovered near the
heart, and this is sufficient to consider the patient to be alive.
Yalkut Yosef continues (inter alia) by referencing R. Eliezer Yehudah
Waldenberg, Teshuvot Tzitz Eliezer IX, no. 17, although this numerical reference (with
all due respect) is certainly a mistake on the part of Yalkut Yosef.251 The actual relevant
numerical reference is Teshuvot Tzitz Eliezer IX, no. 46. There, R. Waldenberg
approvingly cites Chakham Tzvi and Divrei Sha’ul to establish that death is defined by
irreversible cessation of cardiac and respiratory activity.
In effect, this passage in Yalkut Yosef does not explicitly address the subject of
brain death. However, there prima facie appears to be an implicit effort to address the
subject of brain death, given the title “time of establishing death according to Halakhah”
[which, at time of publication of the Yalkut Yosef volume in 5754, would presumably
have been understood as a reference to brain death252]; and given the approving citations
of four Acharonim who accord significance to a breathless heartbeat: Chakham Tzvi,
Chatam Sofer, Divrei Sha’ul and Tzitz Eliezer. On the other hand, the cited responsum of
Tzitz Eliezer – published as it was in 5727, before any heart transplant ever occurred253 –
is chiefly directed toward prohibiting delay of burial, not toward medically treating brain
dead patients as being alive. It is only five subsequent responsa of Tzitz Eliezer –
published as they were after the first heart transplant already occurred – that focus on
medically treating brain dead patients as being alive.254 Those latter responsa of Tzitz

251
While that Tzitz Eliezer responsum contains eleven different chapters devoted to medical questions –
one of which forbids harvesting organs from a treifah patient in order to save the life of a non-treifah
patient – none of the chapters [including the one forbidding organ harvesting] deal with the Chakham Tzvi
and Yad Sha’ul, which are the material [from Tzitz Eliezer] that is copied by the presently discussed
passage in Yalkut Yosef. Thus, Yalkut Yosef misreferences the pertinent responsum in question.
[Parenthetically, another misreference in that passage in Yalkut Yosef is that he misattributes Tosafot, Yoma
85a, s.v u-lefake’ach to being located in Tractate Shabbat.]
252
This was just two years after the famous sheep experiment, when the whole Yeshiva world was already
immersed in the brain death debate.
253
The first heart transplant was orchestrated the following year, in 5728.
254
The five subsequent responsa of R. Waldenberg which require treating brain dead patients as alive are
Teshuvot Tzitz Eliezer X, no. 25, chs. 4-5; XVII, no. 66; XIX, no. 53; XXI, no. 28; XXII, no. 60. [Of
course, the last two of this series were only published in 5756 and 5758, respectively, and so obviously
were unavailable to the author of Yalkut Yosef at the time Yalkut Yosef was published in 5754.

113
Eliezer are never cited by Yalkut Yosef, leaving some degree of ambiguity in Yalkut
Yosef’s intention. [Indeed, according to our evaluation of Rashi orchestrated above,
Section E, those latter responsa of Tzitz Eliezer reflect an incomplete understanding of
Rashi.255]
In any event, this volume of Yalkut Yosef contains a letter of approbation by R.
Ovadiah Yosef [father of Yalkut Yosef], who reports that the majority [emphasis in the
original] of the halakhic conclusions in the book were first verified with him prior to
publication. R. Ovadiah Yosef encourages everyone to rely on the halakhic conclusions
of the Yalkut Yosef.

(b) R. Avraham S. Avraham, Nishmat Avraham (2nd edition, 2007), Yoreh De'ah, p.
474, re-publishes a letter from R. Yehoshua Yeshayah Neuwirth testifying that R.
Ovadiah Yosef agrees with R. Shlomo Zalman Auerbach that a brain dead patient is
potentially alive, and therefore prohibits heart transplants.

(c) During Sivan 5770, the journal Assia 87-88 is published, containing a handwritten and
signed proclamation on p. 78 by R. Shlomo Moshe Amar [dated 17 Adar II, 5768] on the
subject of brain death.256 Appended to R. Amar’s handwritten proclamation are two
sentences handwritten and then signed by R. Ovadiah Yosef. On the previous page (viz.
p. 77), an article by R. Avraham Steinberg appears, explaining how he met with R. Amar

Nevertheless, the point remains that the first three of this series were available to Yalkut Yosef at the time
Yalkut Yosef was published in 5754, and yet Yalkut Yosef chose to ignore them.]
Cf. Teshuvot Tzitz Eliezer XIII, no. 89, sec. 12, who cites his own two previous responsa of IX no.
46 and X no. 25 [ch. 4], erroneously claiming that they both establish the same point. Be-mechilat Kevod
Torato, this is an oversight on R. Waldenberg’s part, for IX no. 6 and X no. 25 [ch. 4] actually articulate
two separate points. [Indeed, as a more general observation, Tzitz Eliezer XIII, no. 89 seems to be (be-
mechilat Kevod Torato) an anomalous responsum by R. Waldenberg that is at variance from other responsa
in Tzitz Eliezer. See Appendix E of the present essay for a full analysis.]
As documented by R. Shabtai, Defining the Moment, pp. 391-394, yet another responsum of R.
Waldenberg, viz. Tzitz Eliezer XVIII, no. 31, seems at first glance to contradict R. Waldenberg’s previous
responsa on brain death, ostensibly treating a brain dead patient as dead. It is precisely for this reason that
R. Waldenberg published the two later responsa of Tzitz Eliezer XXI, no. 28 and XXII, no. 60, clarifying
that even in XVIII, no. 31, he was actually communicating – contrary to first impression - that brain dead
patients are alive. In effect, this is an admission on R. Waldenberg’s part that XVIII, no. 31 was improperly
formulated. [Thus, like the tenuous responsum XIII, no. 89 refuted in the previous paragraph of this
footnote, XVIII, no. 31 was an error on R. Waldenberg’s part, be-mechilat Kevod Torato. For this reason,
the main text adorned by this footnote identifies “five subsequent responsa” by R. Waldenberg as treating
brain dead patients as alive and not “seven subsequent responsa”, because two of R. Waldenberg’s responsa
are mistaken and do not deserve to be tabulated for purposes of halakhic decision-making. This can be cited
as a legitimate source of confusion in the brain death debate.]
Cf. R. Shabtai, Defining the Moment, p. 390, who mistakenly cites Teshuvot Tzitz Eliezer VI, no.
66, as a responsum addressing brain death. In fact, no such responsum numerically exists in that volume.
255
See supra, note 82.
256
Interestingly, this volume of Assa was published during the exact same month (Sivan 5770) as the 5770
RCA Va’ad Halacha study on brain death.

114
and R. Ovadiah Yosef that same day [17 Adar II, 5768], which is what prompted the joint
handwritten proclamations on the subject of brain death.257
R. Amar’s handwritten proclamation reports that both R. Ovadiah Yosef and he
received a detailed presentation from R. Steinberg and R. Yigal Shafran on brain death.
R. Amar further reports that R. Ovadiah Yosef expressed his view – Da‘at Torah – that
according to the letter of the law, death is established by the entire death of the brain,
including the brain stem, including irreversible cessation of respiration. R. Amar
continues that the diagnosis of brain death is only acceptable if it is orchestrated by a
trustworthy committee which includes talmidei chakhamim who are proficient in the
subject, to ensure that no misdiagnosis should ever occur. R. Amar then adds that R.
Ovadiah Yosef demands that explicit privilege must be granted to any person or his
family to not be removed from medical instruments, and not have organs harvested, and
to not have any similar action performed, until after cardiac arrest; R. Amar requests that
R. Ovadiah Yosef’s demand be respected. After R. Amar’s conclusion and signature, R.
Ovadiah Yosef appends the following two sentences plus his signature:

“The above matters were done with my full approval, based on Da‘at
Torah. And everything is clear and upstanding and correct and enduring.”

R. Steinberg’s article recapitulates his conversation with R. Ovadiah Yosef, which


occurred in the presence of R. Amar on the same day that the Knesset would be voting on
a brain death bill.258 R. Steinberg first reports that R. Ovadiah Yosef requested R. Shlomo
Zalman Auerbach’s ruling on brain death. R. Steinberg explained it, to which R. Ovadiah
Yosef retorted: “why is it necessary to have proof that all the brain cells died? It is
sufficient that he cannot breathe and that his brain is dead.” R. Steinberg then showed R.
Ovadiah Yosed a handwritten letter of R. David Feinstein testifying to R. Moshe
Feinstein’s position on brain death. R. Steinberg then told R. Ovadiah Yosef about his
conversation with R. Joseph Shalom Eliashiv in the presence of R. Moshe Gafni [the
latter being a member of the UTJ party in Knesset.259] R. Ovadiah Yosef expressed
dismay why R. Eliashiv refuses to acknowledge brain death; behold the Gemara in Yoma
determines death upon respiration to the exclusion of cardiac activity [sic].260
Nevertheless, R. Ovadiah Yosef – as an accommodation to R. Eliashiv – then agreed that

257
A facsimile of pp. 77-78 from that volume of Assia, accompanied by an English elucidation prepared by
the Halachic Organ Donor Society, is available at
<http://www.hods.org/pdf/Rav%20Ovadia%20Ruling%20English%20and%20Hebrew1.pdf>.
258
In the Israeli parliamentary system, Knesset members belonging to the Shas party have traditionally
followed the guidance of R. Ovadiah Yosef as a matter of personal conscience.
259
In the Israeli parliamentary system, Knesset members belonging to the UTJ party have traditionally
followed the guidance of R. Joseph Shalom Eliashiv as a matter of personal conscience.
260
The term [sic] is appended here, since the claim of R. Ovadiah Yosef [herein reported] that the Gemara
in Yoma negates cardiac activity as a sign of life seems to contradict Yalkut Yosef, Hilkhot Shabbat IV, to
which R. Ovadiah Yosef himself already wrote a letter of approbation. [See supra, notes 251-255, with
accompanying text.] Rather, what R. Ovadiah Yosef presumably meant to say is that he understands the
Gemara in Yoma in accordance with the way R. Shabtai Rappaport elucidates the position of R. Moshe
Feinstein, as elaborated supra, Section W.

115
the Knesset law should contain a provision to allow families who reject brain death to
allow medical treatment to continue. Still, R. Ovadiah Yosef expressed dismay at the
political directive that R. Gafni was given to vote against the bill yet paradoxically allow
the bill to pass,261 because it is necessary to determine the status of brain death one way
or another. Accordingly, R. Ovadiah Yosef proceeded to rule decisively that brain death
is death; he further directed that all members of the Shas party should vote for the
Knesset bill recognizing brain death. Finally, R. Steinberg reports that two days later (19
Adar II, 5768), R. Ovadiah Yosef was asked about a practical case of a brain dead
patient, and he authorized removing organs to save the lives of other patients.

(d) In 2012, R. David Shabtai publishes Defining the Moment: Understanding Brain
Death in Halakhah (Shoresh Press). In ch. 15 of his book, R. Shabtai challenges R.
Steinberg’s aforementioned 5770 report of his 5768 meeting with R. Ovadiah Yosef.
Namely, on p. 294, R. Shabtai claims that:

“According to R. Yosef’s grandson, R. Yaakov Sasson, with whom R.


Yosef has held extensive discussions on the topic, both the particular
language and the overall context of [R.] Dr. Steinberg’s article are rather
confusing and do not provide a coherent understanding of R. Yosef’s
approach.”

Rather, R. Shabtai himself testifies that at a lecture at Yeshivat Chazon Ovadiah


which occurred following the aforementioned meeting,262 R. Amar publicly stated that
neither he nor R. Yosef ever intended to address the topic of organ harvesting, only of
discontinuing medical treatment. On p. 296, R. Shabtai further insists that besides his
hearing this caveat at R. Amar’s public lecture, “this was attested to numerous times by
R. Yosef’s grandson, R. Yaakov Sasson (in several private communications), who has

261
As explained in the English elucidation of the article prepared by the Halachic Organ Donor Society
(referenced supra, note 257), because UTJ was a member of the coalition government, R. Gafni could have
effectively stopped the passage of this legislation by withdrawing from the coalition government, which
would automatically result [according to the Israeli parliamentary protocol] in the dissolution of Knesset
and the orchestration of elections for a new Knesset. Thus, R. Eliashiv was specifically advising R. Gafni
that UTJ should not to withdraw from the coalition government. Rather, the UTJ members should simply
vote against the particular bill, but – as it was already forseen from the outset that the UTJ members of
Knesset would be outnumbered by members of other parties, and those other parties do not heed the
guidance of R. Eliashiv – R. Eliashiv could already anticipate in advance of the vote that the bill would
pass. The one step that R. Eliashiv could have taken to neutralize the bill recognizing breath death, viz. to
tell R. Gafni to dissolve the entire Knesset, was the one step that R. Eliashiv refused to take.
262
R. Shabtai does not document the date of this lecture in this chapter of his book. Earlier, however, on
p.121, R. Shabtai records a lecture by R. Amar at Yeshivat Chazon Ovadiah as having occurred during
March 2008. Presumably, then, this is the same lecture. Indeed, since the aforementioned meeting between
R. Steinberg and R. Yosef itself occurred during March 2008, this must have occurred within days of that
meeting. [This is confirmed by the e-mail of R. Asher Bush recapitulated further in the main text of the
present essay, an e-mail which speaks of R. Amar’s caveat following “quickly” in the aftermath of R.
Ovadiah Yosef’s signed proclamation.]

116
made it quite clear that R. Yosef absolutely forbids organ transplants and has instructed
families to not allow organ harvesting from their relatives.”
Admittedly, there is a subtle but significant difference between the caveat that R.
Shabtai attributes to R. Amar’s public lecture and the caveat that R. Shabtai attributes to
his conversations with R. Sasson. Whereas R. Amar merely reportedly states that R.
Ovadiah Yosef refuses to take a position on organ donation from brain dead patients, R.
Sasson reportedly states that R. Ovadiah Yosef actually forbids organ donation from
brain dead patients. R. Shabtai does not attempt to account for this difference. [In any
event, R. Shabtai’s report of R. Ovadiah Yosef’s position on organ donation is clearly at
odds with R. Steinberg’s report that R. Ovadiah Yosef authorized organ donation from a
brain dead patient two days after the original meeting in 5768.]
Be that as it may, R. Shabtai introduces another element of challenge against R.
Steinberg. Namely, R. Shabtai reports that in R. Amar`s public lecture, he said that the
scientific information with which R. Ovadiah Yosef and himself were provided is that
when a patient has been diagnosed as brain dead, this means that the brain is liquefied,
viz. all brain cells have died. R. Shabtai remonstrates that this does not reflect the true
medical reality of typical brain dead patients maintained in hospital.263 [R. Shabtai’s
report is clearly at odds with R. Steinberg’s account of the same meeting, since R.
Steinberg testifies that R. Ovadiah Yosef explicitly rejected the contention of R. Shlomo
Zalman Auerbach that brain death is only a valid proof of death when all the brain cells
have died. This means that R. Steinberg is testifying that R. Ovadiah Yosef was fully
aware that brain cells are still alive in many brain dead patients, and yet a brain dead
patient is dead (according to R. Ovadiah Yosef), because the only two brain functions
that matter for R. Ovadiah Yosef are consciousness and respiration.]

(e) On Oct. 8, 2013, the day after R. Ovadiah Yosef ascended to the Heavenly Academy,
this student inquired of R. Asher Bush (chairman of the RCA Vaad Halacha) regarding
his understanding of the proclamation signed by R. Ovadiah Yosef in 5768, and merited
to receive the following e-mail response by R. Bush the same day:

“At the time the short item signed by R. Ovadiah Yosef came out, quickly
followed by a clarification from R. Amar that it was not intended to be
used to allow taking organs for transplant, a few of us attempted to reach
out to Rav Ovadiah [Yosef].
The person whom we asked and made attempts to reach out to R. Ovadiah
Yosef was [R.] Dr. Avraham S. Avraham, who was most surprised that he
had not been spoken to before this paper came out, as R. Ovadiah Yosef
“always” consulted him on medical matters, which he himself (unlike R.
Shlomo Zalman Auerbach) was generally not up on [sic].264 Dr. Avraham

263
Many brain dead patients have active pituitary-hypothalamic function. Whether or not this should be
halakhically significant, see supra, Section E.
264
The term [sic] is appended here, since the preposition stranding appears in R. Bush’ original e-mail.
[N.B. I am grateful to my mentor R. David Schnall, Inaugural Dean of Azrieli School of Jewish Education
at Yeshiva University, for illuminating me with the insight that some English scholars actually do authorize
preposition stranding.]

117
was simply shut out and denied any sort of access to R. Ovadiah Yosef at
the time both before and after...
It was clear that R. Ovadiah Yosef had never really been involved in this
matter – not in his writing nor in daily pesakim... Do I know what he
meant or intended or did not intend, no, but personally I need to read a full
analysis to evaluate what was said and written and that was never provided
by R. Ovadiah Yosef... ”

Analysis of the above five steps: There is evidently a contest here between R.
Steinberg and R. Shabtai as to what R. Ovadiah Yosef actually said. Also at the heart of
this conflict is R. Avraham, whose Nishmat Avraham records R. Ovadiah Yosef as
regarding the brain dead patient as potentially alive [step (b)], yet who [according to step
(e)] was ultimately denied access to R. Ovadiah Yosef when the latter instructed his
representatives in the Knesset to equate brain death with death.
In the opinion of this student, the principle enunciated by Tosafot to Yevamot 77a
[discussed above, Section V] means that R. Steinberg enjoys an advantage that he spoke
directly with R. Ovadiah Yosef, whereas R. Shabtai did not. To that effect, the anomaly
that R. Avraham was ultimately denied access to R. Ovadiah Yosef does not negate the
reliability of R. Steinberg’s testimony. On the contrary, this itself can be a form of
halakhic ruling, as we see from the Gemara, Nazir 49b and Kiddushin 52b, that – after the
ascent of Rabbi Meir to the Heavenly Academy – Rabbi Yehudah ruled that the disciples
of Rabbi Meir should be denied access to him, since he felt they would interfere with
[rather than enhance] his own halakhic decision-making process.
Rather, the key issue we must address are the substantive arguments raised by R.
Ovadiah Yosef in his final ruling as reported by R. Avraham Steinberg, which are three
in number, as follows: (i) Yoma 85a teaches that death is defined based on respiratory
arrest, to the exclusion of cardiac arrest;265 (ii) There is no relevance to brain activity
other than control of consciousness and respiration, such that it is not necessary for all
brain cells to die before pronouncing a brain dead patient as dead; (iii) the logical
fallacy/inconsistency of R. Joseph Shalom Eliashiv in directing the UTJ party members
to vote against the brain death bill, yet to paradoxically allow the bill the pass, seems to
indicate that we can bypass the ruling of R. Eliashiv.
In response to those three arguments of R. Ovadiah Yosef [as reported by R.
Steinberg], it seems to this student that we can offer the following point-by-point
rejoinder:

(i) As we saw in Section X, R. Jacob Kaminetzky is able to effectively


challenge R. Moshe Feinstein by pointing to Rambam and Me’iri-or-Rabbeinu
Shimshon of Shantz, who regard a breathless heartbeat as a sign of life,
[potentially] independent of brain function. Quite significantly, regarding Me’iri,
R. Ovadiah Yosef himself has elsewhere publicized to be considered a source of

265
Actually, this argument is imprecisely formulated. [See supra, note 260.] Rather, what R. Ovadiah
Yosef presumably means to say is that he understands the Gemara in Yoma in accordance with the way R.
Shabtai Rappaport elucidates the position of R. Moshe Feinstein, as elaborated supra, Section W.

118
information for practical halakhic information even for purposes of leniency266
[and presumably how much more so for purposes of stringency, particularly if it
concerns a matter of piku’ach nefesh.] Likewise significant is Sifrei to Numbers
19:13, which identifies fluttering as a sign of life.
(ii) Having established in the previous rejoinder that a breathless heartbeat
is potentially a sign of life, independent of brain function, it is not necessary to
address R. Ovadiah Yosef’s reported claim that only consciousness and
respiration are relevant brain functions.
(iii) The political directive that the UTJ party was given does not
necessarily reflect a logical fallacy/inconsistency of halakhic determination, but
may rather follow a triage determination to try to save as many lives as
possible.267 Viz., had no Knesset bill been passed, all brain dead patients in the
State of Israel would be bereft of any legal protection according to secular Israeli
law, and so all brain dead patients would have been fair game for medical
abandonment and/or organ harvesting. Now that the Knesset bill would pass, at
least some brain dead patients would be granted legal protection (viz. those brain
dead patients whose families follow R. Eliashiv and would accordingly request
continued medical treatment for the brain dead patient under their care, a concept
which the Knesset bill would now formally authorize).
Furthermore, since the Gemara, Eruvin 45a, establishes that protecting the
borders of a Jewish state is considered a matter of piku’ach nefesh which
overrides the Sabbath, it is possible that R. Eliashiv understood that the Israeli
government of that day enjoyed the advantage of being best equipped to defend
the borders of the Jewish state, something which R. Eliashiv was not sure that a
different government would be able to accomplish. Hence, with millions of lives
of Israeli citizens on the line, R. Eliashiv felt that the most lives would be saved
by maintaining the current government, even with [what he considered to be] the
inadequate Knesset legislation regarding brain death. In other words, ceteris
paribus, in order to be considered adequate by R. Eliashiv, the Knesset legislation
should have granted legal protection to all brain dead patients, but since it was
impossible for R. Eliashiv to actually persuade the Knesset to draft such
legislation [as the majority of Knesset members were not members of the UTJ
party (neither at that time, nor at any previous time)], the best R. Eliashiv could
do – for purposes of saving the most lives – was to advise UTJ party members to
passively refrain from dissolving the government, so that the millions of Israeli
citizens whose lives were on the line would continue to be rescued.

266
See supra, note 95.
267
See Shalom C. Spira and Mark A. Wainberg, “HIV Vaccine Triage: Halakhic Considerations,” Jewish
Law Annual, Vol. XX (2013), p. 245ff for sources establishing the principle that we are obligated to save
the lives of the many before we save the lives of the few. [N.B. As carefully emphasized in that same
article, under no circumstances does this triage algorithm actually authorize sacrificing the lives of the few
to save the lives of the many. Rather, this triage algorithm simply means that first we endeavour to rescue
the lives of the many, and then we turn our attention to rescuing the lives of the few.]

119
At the same time, given that R. Eliashiv sincerely espoused the halakhic
opinion that brain dead patients are potentially268 alive, he directed UTJ members
to vote against the Knesset bill [without going so far as to dissolve the
government], so that there would be no confusion as to R. Eliashiv’s personal
opinion on brain death. Thus, the political directive R. Eliashiv delivered to R.
Gafni is entirely consistent with recognizing the sincere nature of R. Eliashiv’s
opinion that a brain dead patient is potentially alive.

In conclusion, after surveying the oral record regarding R. Ovadiah Yosef [in this
Section Y], we seem to remain with the understanding [enunciated above, Section X] that
the status of a brain dead patient is safek chai, safek gossess, safek met.

Z. THE ORAL RECORD IV: THE NAKAR CASE

In the above three sections (W-Y), we surveyed the oral record of R. Moshe
Feinstein, R. Jacob Kamenetzky and R. Ovadiah Yosef. From the oral acceptance of
brain death by R. Moshe Feinstein and R. Ovadiah Yosef contrasted with the oral
rejection of brain death by R. Jacob Kamenetzky, all considered through the prism of the
Rishonim underlying those positions, we concluded that the status of a brain dead patient
is safek chai, safek gossess, safek met. Nevertheless, given the gravity of the life-and-
death question at hand – exacerbated by the conundrum of managing the oral records
involving three scholars none of whom this student was ever privileged to personally
meet – it would certainly be preferred for this student not to rely on his own judgement
alone, but rather to first receive the approbation of an outside scholar.
Remarkably, such approbation appears to have recently arrived with the public
reaction of R. David Feinstein (son of R. Moshe Feinstein) to the Nakar case. In order to
appreciate the relevant context of R. David Feinstein’s reaction, an outline of the basic
facts of the Nakar case is in order, as follows.
Mr. Yechezkel Nakar was diagnosed as brain dead by expert physicians at a
Columbia University-affiliated hospital [located in New York] on May 31, 2017. A death
certificate was duly signed at that time. However, Mr. Nakar’s widow [or purported
“widow,” depending on how one views the status of brain death] Mrs. Sarah Nakar
objected that she concurs with the opinion of R. J. David Bleich that brain death does not
constitute halakhic death, and that for this reason she never granted permission to conduct
a brain death test on her husband ab initio. Accordingly, the hospital generously agreed to
ignore its own death certificate and instead maintain medical care of the brain dead
patient. The hospital ultimately transferred the brain dead patient by ambulance with a
portable ventilator [so as to maintain medical treatment of the patient] to Palm Gardens
nursing home. From there, the brain dead patient was transferred to Maimonides Medical
Center, where he continued to receive medical treatment until he suffered irreversible
cardiac arrest on June 22, 2017.268a During this same time period [-on June 7, 2017, to be

268
See supra, note 250, for conflicting reports as to whether R. Eliashiv considers the brain dead patient to
be doubtfully live or definitely alive. In order to accommodate both sides of that conflict, the present main
text [adorned by this footnote] is ambiguous to state “potentially.”

120
specific], Mrs. Nakar petitioned the Supreme Court of the State of New York [County of
Kings] to vacate her husband’s death certificate. On Jan. 15, 2019, the secular court ruled
in favour of Mrs. Nakar, issuing a new death certificate that Mr. Nakar died when he
experienced irreversible cardiac arrest at Maimonides Medical Center.268b
Two months after the Nakar case verdict, on March 27, 2019, Hamodia: The
Daily Newspaper of Torah Jewry published the following reaction signed by R. David
Feinstein and several other scholars [herein translated into English], on p. 35 of the same
newspaper:

“Since, of late, we have been confronted with several cases of treatment of


Jewish patients, may the Merciful One save us, wherein there is a lack of
awareness regarding fundamental halakhot that interface with literally
cases, and [some] stumbled unwittingly in severe matters, therefore we are
hereby coming to awaken the heart of the community to be aware to be
vigilant:

At a time when the status of a patient is declining and the physicians


recommend discontinuity of treatment, it is obligatory to ask a sage as
early as possible and to receive Torah guidance on every step. And since
the reality and the questions of every patient are different one from
another, therefore one should not extrapolate from a ruling given to patient
A to that of patient B. The best is to speak face-to-face with the rabbi who
answers the question, and not to rely upon an intermediary.

One should prevent and hinder physicians from performing any test whose
goal is to clarify whether there is any life in the brain stem, including what
is called the apnea test, nuclear test, and test done with the eyes, etc.

And with praise to [the Holy One, Blessed Be He], recently the
community activists succeeded in receiving a verdict from the secular
court which established firmly that every patient and his family has the
right to prevent the aforementioned tests. And if there is any difficulty
with this from the physician or hospital who wish to force to perform the

268a
Interestingly, just three weeks later, on July 12, 2017, Hamodia: The Daily Newspaper of Torah Jewry
published a full-page letter (on p. 37 of the newspaper) from Aaron Twerski, chairman of the religious
affairs committee for Maimonides Medical Center, announcing that the hospital will refrain from
performing a brain death diagnostic exam on any comatose patient suspected of brain death, when so
requested by the patient’s family [de facto meaning that the hospital will provide continued medical care
for brain dead patients]. However, the full-page letter does not explicitly refer to the Nakar case as the
precipitating cause for this announcement.
268b
The text of the secular court verdict is available at
<https://files.constantcontact.com/4194289d301/6f0c8afa-6a9e-4d60-be27-05114199d6ba.pdf>. Agudath
Israel of America’s “Chayim Aruchim” organization [devoted, inter alia, to medically treating brain dead
patients] called this secular court verdict a “landmark legal victory for religious accommodation in
hospitals.” See <http://www.chayimaruchim.com/News/Chayim-Aruchim-Celebrates-Landmark-Legal-
Victory-for-Religious-Accommodation-in-Hospitals/p-123-143/>.

121
aforementioned, then they [the family of the patient] should contact the
community activists and organizations who are occupied in this field.

May [the Holy One, Blessed Be He] help that all Jewish patients be healed
and live blissful lives.

R. Shmuel Kamenetzky, Philadelphia Yeshiva


R. Yechezkel Roth, Av Beit Din of Karlsburg
R. David Feinstein, Metivta Tifereth Jerusalem
Zvi Ausch, Av Beit Din of Valkin
Binyamin Zev Landau, Dayan u-Moreh Tzedek of Tosh, Boro Bark”

In this proclamation, R. David Feinstein [in his capacity as a co-signor] forbids


performing a brain death evaluation, and expresses delight at the outcome of the Nakar
case that established the legal precedent that families of patients can insist that the brain
death evaluation not be performed. By signing this proclamation, R. David Feinstein is
effectively acknowledging that there is a mitzvah to medically treat brain dead patients,
contra the oral position that R. David Feinstein previously attributed to his own father R.
Moshe Feinstein. Why is R. David Feinstein suddenly abandoning his own father’s
halakhic verdict? One answer might be that R. David Feinstein now realizes that – with
all due respect to his father’s verdict – it is counterbalanced by R. Jacob Kamenetzky
well-supported contrary verdict, and therefore the obligation of safek piku’ach nefesh
requires us to medically treat the brain dead patient, precisely as elucidated above, in
Sections W-Y of this essay.
There is also a second possibility of how to explain R. David Feinstein’s reaction
to the Nakar case. Namely, R. David Shabtai, Defining the Moment pp. 221 and 291,
raises a completely novel safek to consider the brain dead patient as potentially alive. R.
Shabtai’s novel safek is that since the thickness of an endotracheal tube narrows the
effective diameter of the patient’s trachea, therefore perhaps the apnea test is not a
reliable indicator of true brain death, and thus perhaps patients are actually misdiagnosed
as brain dead. [Of course, confirmatory tests would obviate this novel safek, but R.
Shabtai’s claim is that such confirmatory tests are not commonly performed in hospital
settings.] Accordingly, what R. David Feinstein might mean in his reaction to the Nakar
case is that since R. Shabtai raises a novel safek that brain death testing may be inherently
unreliable then even according to R. Moshe Feinstein’s own position on brain death,
brain death as commonly diagnosed is not an acceptable definition.
In conclusion, the reaction of R. David Feinstein to the Nakar case establishes that
– whether it is because brain death is inherently a halakhic safek, or whether it is because
the reliability of how brain death is diagnosed in inherently doubtful due to the thickness
of the endotracheal tube – there is a mitzvah to medically treat brain dead patients. Ergo,
the conclusion of Sections W-Y above is vindicated.269

269
Actually, perhaps our verdict should now be changed to considering a brain dead patient as “vadai chai”
(definitely alive), since there is now a sfek sfeka (compound doubt) to consider the patient alive: (a) perhaps
brain death is not halakhic death [as explained supra, Sections W-Y]; and (b) perhaps – as argued by R.

122
AA. CUMULATIVE SUMMARY OF THE ORAL
RECORD SURVEY AND TRANSITION FOR NEXT
PORTION OF PAPER

In the above four sections (W-Z), we surveyed the oral record of R. Moshe
Feinstein, R. Jacob Kamenetzky and R. Ovadiah Yosef, from which we concluded that
the status of a brain dead patient is safek chai, safek gossess, safek met. This conclusion
was then confirmed by R. David Feinstein’s reaction to the Nakar case. If so, there is a
mitzvah to medically treat the brain dead patient on the Sabbath [no less so than on
weekdays] so as to “save” [or doubtfully “save”] the patient’s doubtful so-called “life”.
Likewise, it is forbidden to deactivate the ventilator or harvest organs from the brain dead
patient.
Accordingly, it behooves us to alternately define what precisely would indeed
constitute an adequate bioethical definition of death [besides the case of anatomical
decapitation, an anomalous case270]. While the logical answer might be cessation of all
motion (including cessation of cardiac activity) – and indeed this is what Sifrei to
Numbers 19:13 as well as Me’iri to Yoma 23a appear to declare – nevertheless Dr. Noam
Stadlan cogently remonstrates that the possibility of cardiopulmonary resuscitation
requires us to reconsider this definition.271 To that effect, the possibility of implanting an

Shabtai – the thickness of the endotracheal tube wreaks havoc with the reliability of the brain death
diagnosis [as explained in the present Section Z].
In the final analysis, given the nebulous uncertainty surrounding the novel safek raised by R.
Shabtai, this student prefers to leave the matter as an open question. In truth, it is not urgent to adjudicate
this novel safek – which will, in effect, determine whether the status of a brain dead patient is safek chai or
vadai chai – since even the rejection of the putative safek and instead considering the brain dead patient to
be safek chai [as presented in the main text of the essay] is sufficient to require us to desecrate the Sabbath
in order to medically treat the brain dead patient. This is why the question of the putative safek can be
relegated to a footnote in the present essay,
[Although, as we will see infra, Section EE, R. Shlomo Zalman Auerbach argues that – because
(as he understands brain death) brain death is a safek – therefore Noahides are authorized to treat the brain
dead patient as dead even as Jews must treat the brain dead patient as potentially alive, and this would bear
a major practical ramification for Noahide physicians to be permitted to orchestrate heart transplants, we
will refute R. Auerbach’s claim (be-mechilat Kevod Torato) in that same Section EE, and thus it remains
the case that there is no significant practical difference whether a brain dead patient is safek chai or vadai
chai. The other practical ramifications that do arise from the question of whether a brain dead patient is
vadai chai or safek chai (e.g. chalitzah for a brain dead patient’s mother, requirement for a get by the wife
of a brain dead patient who receives kiddushin from an alien gentleman, etc.) are less commonplace and
hence can be left for another time (and/or for other students of Halakhah to adjudicate).]
270
In a situation of anatomical decapitation, the human body has been physically destroyed, at least because
the minimum measurement of rosho ve-rubbo no longer exists. [See supra, note 113.] This is not a
practical bioethical definition of death for the typical healthcare facility, where the patients remain
anatomically in tact.

Dr. Noam Stadlan, “Is the Concept of Vital Motion a Halakhic Definition of Death?”. Ḥakirah Vol. 18
271

(Winter 2014).

123
artificial heart or ECMO machine – essentially a more robust form of cardiopulmonary
resuscitation (since circulation can be maintained even after the patient’s own cardiac
muscle has irrevocably failed) – serves to reinforce Dr. Stadlan’s epistemological
question [and is indeed raised by R. Stadlan himself].272 Ergo, in the next portion of this
paper, we will evaluate the impact of resuscitation upon the definition of death, beginning
with the analysis of Teshuvot Chatam Sofer, Even ha-Ezer 92.

BB. RESUSCITATION I: CHATAM SOFER

As explained in a footnote earlier in this paper,273 R. Moshe Sofer, Teshuvot


Chatam Sofer, Yoreh De‘ah 338 establishes two types of declaration of death: (i) standard
death, where the patient becomes progressively weaker and ultimately stops breathing.
Here, the Mishnah, Shabbat 151b applies to forbid burying immediately, lest the patient
have experienced fainting; (ii) death by avalanche, where the Gemara, Yoma 85a directs
us to declare him dead immediately upon detection of breathlessness. In neither case is
Chatam Sofer prepared to envisage a possibility of resuscitation [beyond a limited
number of minutes necessary to rule out fainting in case (i)] as a realistic medical
scenario. Chatam Sofer insists that the two cases of misdiagnosis of death described by
[Minor Tractate] Semachot 8:1 can be dismissed as being of any halakhic concern in
terms of safek piku’ach nefesh, due to the rarity with which they occur.274

272
Dr. Robert Truog, in his lecture recorded at <http://www.hods.org>, reports that “ECMO is a form of
heart-lung bypass… You basically cannot die in an intensive care unit without permission if the clinicians
are willing to use ECMO, because with ECMO we can keep anybody alive.”
R. David Shabtai, “Donation After Cardiac Death: Halakhic Perspectives” (Verapo Yerape, Vol. 4,
p. 274) claims that there is no halakhic significance to the artificial circulation induced by an ECMO
machine in a patient who has otherwise experienced both brain death and cardiac death, for the ECMO
machine is tantamount to an outside person clapping the hands of a corpse. However, it seems to this
student that one might suggest a rejoinder based on Chiddushei R. Chaim ha-Levi (Soloveitchik) on
Rambam, Hilkhot Yesodei ha-Torah ch. 5. R. Soloveitchik writes that if a Jew is thrown against his will on
a baby, the Jew did not commit homicide, since the Jew is completely passive. On the other hand, R.
Soloveitchik writes that if a Jewess is assaulted against her will, even if she is completely inert, she did
commit gilui arayot. Although she was completely passive, the nature of gilui arayot is such that it does
not depend on an active vs. passive dichotomy. And so, by counter-analogy: Even if a spectator claps a
corpse's hands against the corpse's will, the corpse indeed remains dead. But if a machine can move a
patient's blood (in a manner that parallels a natural physiological heartbeat), then circulation is indeed
occurring, and one might possibly argue that this represents a life process. The matter requires further
analysis.
273
Supra, note 131.
274
As Chatam Sofer writes in that responsm, such events are like the case of Choni the Circle Drawer
described by the Gemara, Ta‘anit 23a – events that only occur once in a thousand years and hence do not
even rise to the threshold of safek piku’ach nefesh.
Presumably, Chatam Sofer’s reference to Choni the Circle Drawer is intended to incorporate the
commentary of Maharsha on that episode. Maharsha reports that Josephus erronouesly claimed that Choni
the Circle Drawer was murdered during the conflict between Hyrkanus and Aristoblus (the two competing
heirs to Queen Shlomzion described by the Gemara, Sotah 49b). Maharsha exposes Josephus’ account as a
pure fabrication, since Choni the Circle Drawer was never present during the conflict between Hyrkanus
and Aristoblus, nor was he ever harmed. Rather, Choni was miraculously shielded by a rocky formation
which allowed him to safely sleep for seventy years, so that could see the fruits of the carob tree whose

124
However, in a completely separate responsum, viz. Teshuvot Chatam Sofer, Even
ha-Ezer 92, s.v. omnam kol zeh, R. Sofer does take cognizance of a medically realistic
possibility of resuscitation extending up to three hours beyond the patient’s failure to
breathe. R. Sofer acknowledges this to be uniquely true in the case of drowning victims,
based on the Mishnah, Yevamot 121a as elucidated by Teshuvot ha-Rivash 380 [as well as
Teshuvot ha-Rivash 377 and 416]. Namely, the Mishnah establishes that a missing
husband who was last seen to have drowned in finite waters (mayim she-yesh lahem sof)
can only be pronounced dead [so as to allow his widow to remarry] if eyewitness
testimony confirms that the husband was submerged long enough for his soul to depart.
Rivash calculates this duration as being three hours in length.275 Although Rivash does
not explain how he arrives at this calculation, R. Aharon Sasson, Teshuvot Torat Emet no.
1 [cited approvingly by Chatam Sofer] explains that Rivash derives it from the drowning
episode of Nechuniah the Cistern Digger recorded by the Gemara, Yevamot 121b. In that
episode, Rabbi Chanina ben Dosa was confident that Nechuniah’s child [who had
drowned] could naturally survive under water without a miracle for the first couple of
hours. It was only once the three-hour point was reached that a miracle was required to
save the child. To that effect, Chatam Sofer explains that medically recognized
resuscitation will work up to three hours to restore a patient’s life in a drowning victim.
Of course, given Chatam Sofer’s other responsum [viz. Yoreh De‘ah 338] which
denies the possibility of resuscitation in determination of death, it is clear that Chatam
Sofer limits the possibility of resuscitation to drowning victims only; indeed, such was
the medical reality in Chatam Sofer’s era.276
Subsequently, thirty-four years after Chatam Sofer’s ascent to the Heavenly
Academy, the halakhic concept of medical resuscitation would be re-evaluated by R.
Shmuel Chaim Eistein. Namely, in 5634, R. Eistein posthumously published R. Aryeh
Leib Ginzberg’s Teshuvot Sha’agat Aryeh ha-Chadashot.277 There, in responsum no. 6 of
the posthumous volume, R. Ginzberg discusses the prohibition against delaying the burial

planting he had previously witnessed. Josephus, obviously being unaware of this miracle, substituted an
erroneous rumour regarding Choni’s disappearance, thereby misdiagnosing Choni as dead.
Interestingly, since Chatam Sofer’s responsum was written approximately 3000 years after the
Giving of the Torah, and Chatam Sofer tabulates three mistaken cases of misdiagnosis of death in total [viz.
the two recorded in Semachot 8:1, and the one recorded in Ta‘anit 23a], it emerges that his expression of
“once in a thousand years” is mathematically precise.
275
There is significant debate among the poskim whether Rivash means two complete hours plus the first
minute of the third hour, or whether Rivash means three complete hours. See Otzar ha-Poskim on Shulchan
Arukh Even ha-Ezer, Vol. 7 (second, revised edition, Jerusalem 5731), pp. 169-182.
276
It is remarkable to note that the Zohar on Genesis 7:11 – as elaborated by R. J. David Bleich, Bioethical
Dilemmas II, pp. 1-2, 99-100 – announces that in the year 5600, the fountains of scientific knowledge will
open. Fascinatingly, 5600 corresponds with the very same year that Chatam Sofer – whose responsa on the
definition of death [viz. Yoreh De‘ah 338 and Even ha-Ezer 92] are so central to the topic – himself
ascended to the Heavenly Academy. Thus, Chatam Sofer did not know of a scientifically realistic concept
of resuscitation other than in the limited situation of drowning, but – almost simultaneous with his ascent to
the Heavenly Academy – the fountains of scientific knowledge opened, eventually leading to the
resuscitation that is recognized today, and which would be so addressed by subsequent poskim.
277
R. Ginzberg himself had already ascended to the Heavenly Academy in 5545.

125
of a corpse. Burial must proceed with swiftness in order to comply with Deuteronomy
21:23, explains R. Ginzberg. However, in his editorial gloss (at the end of sec. 1 of this
responsum), R. Eistein submits:

“But such is not what people do, for the new science of medicine has
demonstrated that there are people who appear to be dead after enduring
gessissah, whereas in truth they are actually alive and upstanding and can
be restored to their original health, and anyone who prematurely buries
them is shedding blood”.

Whether or not R. Eistein’s assertion was factually applicable to non-drowning


questions when R. Eistein wrote these words in 5634 is open to serious question. After
all, writing at virtually the same time, R. Shalom Mordechai Schwadron, Teshuvot
Maharsham I, no. 12 mentions medical resuscitation in the context of drowning victims
only [apparently following Chatam Sofer’s lead].278
Subsequently, some twenty-three years later, in 5657, R. Yechiel Michal ha-Levi
Epstein would publish his Arukh ha-Shulchan on Yoreh De‘ah. There, in Yoreh De‘ah
357, we find what seem to be contradictory rulings on this matter. In §2, Arukh ha-
Shulchan affirms that the halakhah follows Chatam Sofer, Yoreh De‘ah 338 to forbid
delay of burial due to fear of misdiagnosis of death.278a Yet, in §3, Arukh ha-Shulchan
writes [apparently following the approach of R. Eistein] that “if one has died a sudden
death, others may not hasten to bury him, until it is clarified that he is [actually] dead, for
perhaps he merely feel into weakness.” And further adding to the mystery is the
following later comment of Arukh ha-Shulchan, Yoreh De‘ah 394, §4: “we do not bury
anyone without definite death.”
As a matter of practical reality [as it can be gleaned from the history of medicine],
this student is not aware that resuscitation in non-drowning victims was known even as
late as Arukh ha-Shulchan’s era. However, the theoretical principle enunciated by Arukh
ha-Shulchan, like that previously enunciated by R. Eistein, seemingly remains true: If
resuscitation is medically possible, then the patient is not dead. And if we are not experts
on whether resuscitation is possible, then out of doubt we must wait until the body
putrefies, pursuant to the Gemara, Niddah 69b.279

CC. RESUSCITATION II: IGGEROT MOSHEH

278
Further to the observation rendered supra, note 276, one might claim that following the opening of the
fountains of scientific knowledge in 5600, the concept of resuscitation [even for non-drowning cases] was
“on the manufacturing line” by the time R. Eistein published his gloss in 5634. Even so, the medical
historical reality remains that resuscitation for non-drowning cases [as understood through scientific cause-
and-effect] was unknown to the medical profession in 5634.
278a
Actually, Arukh ha-Shulchan only refers to “no. 338,” without mentioning the book in which that
chapter appears. [This appears to have been a typographical oversight on the part of Arukh ha-Shulchan.]
However, it is contextually obvious that Arukh ha-Shulchan must actually be referring to Teshuvot Chatam
Sofer, Yoreh De‘ah 338.
279
See supra, note 54.

126
In the previous section, we saw how Chatam Sofer and Maharsham limited the
possibility of resuscitation to drowning victims. R. Eistein and Arukh ha-Shulchan
indicated otherwise, but their claims do not seem to have been reflected in the medical
reality of their era.
Subsequently, however, during the era of R. Moshe Feinstein, resuscitation for all
victims of cardiopulmonary arrest, even in non-drowning cases, became a medically
recognized possibility. To that effect, R. Moshe Feinstein first addresses the concept of
cardiopulmonary resuscitation in his 5730 responsum on the definition of death.280 R.
Feinstein cites [the aforementioned] Teshuvot Chatam Sofer, Yoreh De‘ah 338, where
Chatam Sofer professes that the two cases of misdiagnosis of death described by
Semachot 8:1 can be dismissed as being of any halakhic concern in terms of safek
piku’ach nefesh, due to the rarity with which they occur. R. Feinstein infers that
nowadays, when medical science has indeed identified commonly reversible cases of
cardiopulonary arrest, the possibility of resuscitation does rise to the threshold of safek
piku’ach nefesh, and we cannot treat the patient as yet dead.
Toward the end of the same responsum,281 R. Feinstein marshals another proof for
the concept of resuscitation, this time from the Mishnah, Yevamot 121a which cites Rabbi
Meir as holding that a husband who disappears by falling into finite waters (mayim she-
yesh lahem sof) cannot be presumed to be dead even after rescuers fruitlessly seach for an
extended period of time. This is because, continues Rabbi Meir, it once occurred that a
gentleman fell into a cistern and emerged alive three days later. R. Feinstein expresses
astonishment that a drowning victim could survive underwater so long, but nevertheless
deduces from Rabbi Meir’s position the point that when medical science has indeed
identified commonly reversible cases of cardiopulonary arrest, the possibility of
resuscitation does rise to the threshold of safek piku’ach nefesh, and we cannot treat the
patient as yet dead.
Alas, it is clear from the Gemara, Yevamot 121b – as correctly elucidated
by Arukh la-Ner, and indeed no alternative elucidation is possible – that R. Feinstein (be-
mechilat Kevod Torato) misunderstood the position of Rabbi Meir in the Mishnah. Rabbi
Meir is not discussing a gentleman who is completely submerged and hence stops
breathing (as R. Feinstein claims), but rather Rabbi Meir is discussing a gentlemen who
keeps breathing the entire time because he is swimming either just beneath the surface
[undetected to rescuers] or just next to an airpocket [undetected to rescuers] contained in
a tunnel. And the reason the other Sages disagree with Rabbi Meir – as explained by the
Gemara – is because it is impossible for a person to remain awake for three full days
[such that the gentleman must ultimately fall asleep against his will, and – once asleep –
the gentleman will no longer be keep himself juxtaposed to the surface/airpocket from
which he was breathing until now.] Thus, Rabbi Meir’s position is unrelated to
resuscitation, but rather addresses a swimmer’s endurance to be able to keep himself
afloat without sleeping. Ergo, R. Feinstein’s proof from Rabbi Meir represents a non
sequitur.

280
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 248, s.v. u-mah she-Kvod Torato ha-Rav dan le-hakel.
281
Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 251, s.v. u-le-fi mah she-katavti me-ha de-ha-Chatam
Sofer.

127
Indeed, further compounding R. Feinstein’s error (be-mechilat Kevod Torato) is
his failure to mention that the very next passage in the Gemara, Yevamot 121b, viz. the
episode of Nechuniah the Cistern Digger, does serve as a halakhic precedent for
resuscitation. Namely, as we saw in Section AA above, Chatam Sofer derives from the
episode of Nechuniah the Cistern Digger that a drowning victim can be resuscitated until
three hours of submergence. Accordingly, it is this later passage in Yevamot 121b
regarding Nechuniah the Cistern Digger, and not the aforementioned earlier passage in
Yevamot 121b regarding Rabbi Meir, which R. Feinstein should have cited as a precedent
for resuscitation.282
In any event, the concept of resuscitation is raised again in R. Feinstein’s 5736
responsum on the definition of death,283 though this time specifically with respect to
respiratory activity vs. arrest [as there is no explicit discussion of cardiac activity vs.
cardiac arrest in that responsum284]. R. Feinstein writes that where respiratory arrest is
reversible, for instance where the patient overdosed on sleeping pills, the patient cannot
be declared dead.

DD. RESUSCITATION III:


PRACTICAL APPLICATION TODAY

In the previous section, we saw how R. Feinstein recognized that the possibility of
resuscitation in any patient – including a non-drowning case – negates the declaration of
death, although R. Feinstein erred in the particular proof that he marshalled from
Yevamot 121b. Indeed, following the lead of R. Feinstein, subsequent poskim have
acknowledged that a patient who can still be resuscitated is not dead,285 including R.
Shlomo Zalman Auerbach,286 R. J. David Bleich,287 R. Efraim Greenblatt,288 R. Moshe

282
This can be cited as one of the legitimate sources of confusion in the brain death debate.
283
Iggerot Mosheh, Yoreh De‘ah III, no. 132, final two paragraphs.
284
See supra, Section V.
285
Of course, there is diversity among these poskim as to what “resuscitation” actually means in a
bioethical sense. For those who equate brain death with death, resuscitation only means restoration of
physiological function to sufficient adequate an extent so as to prevent the patient from entering a state of
brain death. For those who do not equate brain death [at least as brain death is currently diagnosed] with
death, resuscitation means even so much as restoring cardiac activity, notwithstanding concurrent brain
death. [As explained supra, Sections X-Y, we are obligated to follow the latter camp out of doubt.]
However, the common denominator among all these poskim is that they concur that whatever is considered
a halakhic sign of death, it must be irreversible to be so recognized.
286
Cited and analyzed supra, note 195.
287
Be-Netivot ha-Halakhah III, pp. 161-162. R. Bleich capitalizes on the Gemara, Ta ‘anit 2a, which
teaches that the key of resurrection of the dead has not been delivered to human beings. Ergo, infers R.
Bleich, in any situation where a medical intervention of resuscitation can prospectively be applied, the
patient is not dead yet.
While not mentioned by R. Bleich, and while in fact superfluous in rendering the case (given the
satisfactory proof from Ta‘anit 2a), we can also draw the same inference from Rashi to Eruvin 54a, s.v. ve-
ein la-mavet hitmahmeha, who comments that there is no way to delay human death. [Obviously, then, in
any situation where the medical intervention of resuscitation can prospectively be applied, thereby

128
Sternbuch,289 R. Moshe David Tendler,290 R. Eliezer Yehudah Waldenberg,291 R.
Ovadiah Yosef,292 and R. Yitzchak Yosef.293
So the question now arises how to practically apply the halakhic definition of
death today. Clinical death through cardiopulmonary arrest is obviously insufficient,
since the patient might still be resuscitated. Less obviously, but pursuant to the
conclusion discovered above, Sections X-Y, brain death following cardiopulmonary
arrest would not be sufficient [due to considerations of safek piku’ach nefesh], either.
Rather, the only certain definition of death [besides for anatomical decapitation, an
anomalous case] is cardiopulmonary arrest to so great an extent as to make resuscitation
absolutely impossible, beyond all doubt. But at what point in time can we say for certain
that resuscitation is impossible? After all, absence of proof is not necessarily proof of
absence, as per the Mishnah, Zevachim 103b (“ein lo ra’inu re’ayah”), also bespoken by
the Gemara in Pesachim 19a, Ketuvot 23a and Niddah 7b. This epistemological principle
is also the motivating consideration behind the ruling of the Rema on Shulchan Arukh
Yoreh De’ah 82:3 that we do not eat birds for which we lack a tradition that they are free
from being a doress.
One might respond that physicians have expertise is making the assessment that
resuscitation is impossible. Once a physician signs a death certificate on the basis of his
expert judgment, it carries full halakhic weight. However, Teshuvot Chatam Sofer, Yoreh
De‘ah nos. 158, 173 and 175 specifically rules that the assessment of a physician is
halakhically treated as a safek, based on the Gemara, Niddah 22b. Chatam Sofer’s
decision is accepted by R. Moshe Shik, Teshuvot Maharam Shik no. 155; R. Abraham
Isaac Kook, Teshuvot Da‘at Kohen no. 140, and R. Ovadiah Yosef, Teshuvot Yabi‘a
Omer VII, Orach Chaim no. 53 (subsection no. 6). Thus, the reason we listen to a
physician when he says (for instance) to violate the Yom Kippur or the Sabbath for the

appearing to “delay” human death, the patient is not actually dead.] And similarly, we can draw the same
inference from Rashi to Yoma 13a, s.v. zariz hu, who comments that “death is not controlled in our hands.”
[Obviously, then, in a situation where a human bystander can prospectively control whether or not to
resuscitate, the patient in question is not actually dead.]
288
Teshuvot Rivevot Efrayim VIII, no. 319.
289
“Kvi‘at Zman ha-Mavet,” (cited supra, note 72), p. 687.
290
“Halakhic Death Means Brain Death,” Jewish Review (Jan.-Feb. 1990), p. 6ff.
291
Teshuvot Tzitz Eliezer XVIII, no. 19. This responsum addresses the case of a gentleman who has been in
a persistent vegetative state for ten years, leaving his wife as an agunah during that time. Finally, he enters
cardiac arrest. The halakhic question posed is whether it would be permissible to passively refrain from
cardiopulmonary resuscitation, so that the agunah wife could be freed by her husband’s death. Tzitz Eliezer
responds that one is obligated to resuscitate by virtue of piku’ach nefesh, and as for the agunah wife, “it is
upon her to accept the Judgement of Heaven with love.”
See also R. Waldenberg’s earlier responsum of Teshuvot Tzitz Eliezer XVI, no. 24, where R.
Waldenberg acknowledges that a patient whose heart has failed but who has been placed on a heart-lung
bypass machine is still alive. [The heart-lung bypass machine is, in effect, a more robust form of
resuscitation.]
292
Liv’yat Chen no. 93 (at the end).
293
Yalkut Yosef, Orach Chaim 329, sec. 10

129
sake of a patient is not because we are certain that the physician is correct, but rather
because we are concerned maybe the physician is correct, and therefore safek piku’ach
nefesh considerations allow us to desecrate Yom Kippur or the Sabbath. For this reason,
R. Ovadiah Yosef requires that metzitzah be performed following a circumcision.
Although modern medical science does not recognize any danger in failure to perform
metzitzah, the assessments of modern medical science are treated as a safek, and because
of safek piku’ach nefesh considerations we perform metzitzah. Likewise, R. Ovadiah
Yosef demands that a lady who gave birth desecrate Yom Kippur and the Sabbath in the
seventy two hour period following parturition, despite the fact that physicians claim that
the lady’s life is not in danger after more than two days. We are concerned that the
assessment of physicians is in error. Mutatis mutandis, one might argue that although a
physician may believe that resuscitation is impossible in a patient who has entered a state
of cardiopulmonary arrest, the assessment of that physician should only be treated as a
safek, and cannot be used as a justification to remove his kidneys or cornea.
Methodologically, this questioning of the correctness of the assessment of a
physician is similar to the words of R. Moshe Feinstein, Iggerot Mosheh, Orach Chaim I,
no. 8 who asserts that even when physicians think a patient’s arm is irrevocably
paralyzed, perhaps before Heaven a future cure to the paralysis is known. Although a
physician may say that never again will this arm be useful, his assessment is halakhically
doubtful. Likewise, although a physician may say that never again will a heartbeat be
possible, his assessment might be regarded as halakhically doubtful.294
Moreover, it must be appreciated that, in a psychological sense, the physician may
feel internal pressure to pronounce a patient in cardiac arrest as being dead, particularly
where the anticipated chance of resuscitation is small (albeit not non-existent) and where,
even if successful, the resuscitation is anticipated to leave the patient in a state of brain
death. After all, there is a tremendous burden and cost involved in maintaining a patient
in cardiac arrest, more so than any other kind of patient. When facing the prospect of a
resuscitated patient who will be brain dead, the physician will have to battle an entire
professional medical culture (as well an entire professional legal culture) that believes
that brain death is death, even if this is not the halakhah. Under some circumstances, the
physician may even be sued for battery (!) by the emotionally anguished relatives for
resuscitating the patient. It is much easier and far simpler to simply let the patient be
pronounced dead, especially when a busy physician is overburdened with many patients
and competing obligations.

294
One might counter: if so, how may one ever undergo a medical procedure? Isn’t the physician’s
assessment treated as a safek, and therefore isn’t every patient unreasonably endangering himself by
undergoing the procedure (except where the patient will die anyway, in which case he may risk his chayei
sha’ah for the sake of chayei olam, as per the Gemara, Avodah Zarah 27b)? The answer is that R. Jacoc
Etlinger, Teshuvot Binyan Tzion I, no. 137 allows one to embark upon potentially dangerous activities
(such as boating or traversing the desert) in reliance upon Shomer peta’im Ha-Shem, because the danger
has not yet arrived. But when a building has collapsed on a person, and the danger has arrived, we invoke
the rule “we do not follow the majority in a matter of piku’ach nefesh” (Gemara, Yoma 84b). Likewise, one
may certainly rely on a physician’s expert assessment before any danger has arrived because, generally
speaking, the physician’s assessment is accurate and Shomer peta’im Ha-Shem. But once a patient has
entered cardiac arrest and the danger has arrived, one must invoke the rule “we do not follow the majority
in a matter of piku’ach nefesh.”

130
This pressure is reflected in Tractate Kiddushin of both the Shas Bavli and the
Shas Yerushalmi. In the Bavli (31b), R. Yochanan – an orphan from birth – commends
anyone who has never seen his parents. As Rashi there explains, it is impossible for a
person to properly honor his parents, and so it is better to be spared the trial. In the
Yerushalmi (1:7), R. Ze’ira – also an orphan from birth – similarly exclaims “Blessed Be
the Merciful One, King of the Universe, that I have no father and no mother! Neither like
R. Tarfon could I have done [in honoring my parents], nor like R. Yishma’el could I have
endured”. Surely, the frightful trials of honouring a parent that are being discussed in
these two sources most prominently include the task of caring for mortally ailing parents.
In contemporary society, the members of the healthcare profession have been appointed
as agents to bear the brunt of these frightful trials. Possibly, then, the judgment of a
physician regarding resuscitation can become clouded.
Noteworthy in this context are the comments of Tosafot to Pesachim 4b (s.v.
heimnuhu Rabbanan be-de-Rabbanan) that if bedikat chametz were of biblical origin,
ladies could not be trusted in the orchestration thereof because it requires “extraordinary
bother and colossal investigation.” Perhaps the same words can be used to describe the
task of determining the impossibility of resuscitation in a cardiac arrest patient, with the
added caveat that gentlemen are no better suited for the task.
None of this is designed to cast aspersions upon the righteousness of our
physicians, chas ve-shalom. Quite the contrary, they are true heroes in every sense. To
paraphrase the morning prayer liturgy:295 Kulam ahuvim, kulam berurim, kulam giborim,
ve-khulam osim be-eimah u-ve-yir’ah Retzon Konam. The only issue here is the
epistemological limits upon the judgments of a physician, based on the empirical realities
of the healthcare profession.
Accordingly, in light of the findings that (a) absence of proof is not proof of
absence, (b) the assessment of a physician is halakhically regarded as a safek, and (c) the
contemporary pressures placed on the shoulders of physicians are awesome, one could
perhaps argue that we are no longer experts in determining impossibility of resuscitation.
A patient who enters a state of prolonged cardiac arrest would then be defined as a safek
gossess, safek met, according to this novel line of reasoning.
One might counter that the Beit Yosef at the beginning of Yoreh De’ah no. 336
approvingly cites Ramban’s Torat ha-Adam to the effect that a physician has the halakhic
status of a judge, concerning whom we apply the principle that “a judge has only that
which his eyes see.” Therefore, when a physician, in his expert medical opinion,
adjudicates the status of a patient in cardiac arrest as being beyond resuscitation and
therefore pronounces him dead, that adjudication would have the full weight of a binding
psak halakhah. However, for all judgments regarding dinei nefashot, a Dayan must wait a
full night in between the decision and the implementation, as per the Mishnah, Sanhedrin
35a. A full night necessarily implies the interval between the moment prior to sunset on

295
Cf. the virtually identical paraphrase employed by R. Rephael Aharon Ben-Simeon, Teshuvot u-Mitzur
Devash, Yoreh De‘ah no. 18, describing the various Torah scholars who dispute one another regarding
metzitzah. [I am grateful to Reb David Tebesh for bringing this source to my attention.]

131
one day and the moment following daybreak on the next day. If so, the significant delay
that this requires would render cadaveric kidney donation impossible.296
As mentioned above in Section D of this essay, R. Feinstein writes that in the
absence of expertise on how to diagnose death, we cannot bury a patient presumed dead
until the patient’s flesh decomposes.297 Ergo, given the uncertainty regarding the impact
of resuscitation today that we have discovered in the present section of the essay, it is
entirely reasonable to demand an extended delay before pronouncement of death. Indeed,
the same point appears to be rendered by R. Shmuel David Munk, Teshuvot Pe’at
Sadekha I, no.139, p. 289, as follows:

“And that which [Chatam Sofer] wrote that the members of the Chevra
Kadisha who are experts [in the determination death] are authorized to
rely on their evaluation to say that [the patient presumed dead] is
definitely dead, for sure the same would be true in our case if we had a
human who was trustworthy according to the law and he is proficient in
evaluation. However, go in the opposite direction [in extrapolationg a
practical halakhic conclusion], for [Chatam Sofer] writes that typical
human beings are not experts, where it is common to find a situation that
[the patient] appears to be dead but is not [actually] dead.”

Therefore, halakhah le-ma‘aseh, it seems to this student that the three-hour


measure of Rivash must be applied to every patient pronounced dead, and not just to
drowning victims. I.e., whenever a patient is pronounced dead by a physician on the basis
of [what represents in the physician’s best judgement] irreversible cardiopulmonary
arrest, the patient cannot actually be treated as dead until at least three full hours of such
cardiopulmonary arrest have elapsed. [While Rivash only demands a three-hour delay in
the context of drowning victims, the changed nature of our medical reality today requires
applying this stringency to all patients newly pronounced dead.] And furthermore, there
is a case to be advanced that – even after those three full hours are carefully monitored –
burial should be additionally delayed by at least one intervening night [unless it is a
situation where the patient’s body is already visibly decomposing]. After all, the verdict
of the physician that the cardiopulmonary arrest was irreversible – which trigerred the
initial three-hour waiting period – was itself a judgement call on dinei nefashot. The
matter requires further investigation.

EE. APPLICATION TO THE NOAHIDE CODE

296
Arguably, on the website of the Halachic Organ Donor Society, one can find an allusion to this problem.
Namely, that website showcases organ donor cards with two distinct options: to donate after brain death, or
to donate after circulatory death. However, in the Australian edition of the circulatory death option, the
following warning appears: “in Australia there are unique medical protocols for this type of donation that
include significant halachic challenges.” Arguably (though not necessarily), the meaning of this caveat is
that there is a significant degree of ambiguity as to when irreversible circulatory arrest has actually
occurred, significant enough to preclude the possibility of kidney donation altogether.
297
See text accompanying supra, note 54.

132
In the foregoing sections of this essay [culminating with Section CC above], we
have established that a brain dead patient must be treated as safek chai, safek gossess,
safek met, insofar as the halakhic obligations of Jews are concerned. Now, in this section
of the essay, we will investigate whether the same is true insofar as the halakhic
obligations of Noahides are concerned.
At a 5770 Torah in Motion conference,298 R. Avraham Steinberg explained in a
public lecture that R. Shlomo Zalman Auerbach regarded the Noahide Code as being
granted greater flexibility regarding the definition of death. Namely, after the pregnant
sheep experiment, R. Auerbach was in a state of safek whether a brain dead patient [as
brain death is currently defined] is a gossess or whether the patient is dead.299 Because of
the doubt, R. Auerbach ruled that Jewish healthcare workers must be stringent to avoid
harvesting organs from the patient. At the same time, R. Auerbach held that Noahides
have the right (under the rubric of the Noahide Code commandment of maintaining a
system of law and order, bespoken by the Gemara, Sanhedrin 56b) to define the
parameters of homicide, so long as they do not explicitly contradict what the Talmud says
about the definition of death. Thus, for instance, the Third Reich was in obvious violation
of the Noahide Code when it decided that non-Aryans are legally considered dead, but
the American legal system was in acceptable compliance with the Noahide Code when it
decided that brain dead patients (as defined by irreversible coma and irreversible apnea)
are considered dead.300 A Jew cannot follow American law on this matter [since brain
death is actually a safek], whereas a Noahide can.
Accordingly, R. Auerbach allowed mortally ill patients in the Disapora (where
the hospitals and healthcare workers are Noahides) to register for organ transplants from
brain dead patients (e.g. heart transplants). Since the Noahides are not committing any
transgression, the patient registering for the organ (whether the patient is Jewish or
Noahide) is not considered to be causing an act of murder.
[However, in the Land of Israel, where the society is predominantly Jewish and
the healthcare system is run by Jews, R. Auerbach ruled that hospitals must obviously
follow Jewish law and cannot take advantage of the flexibility offered by the Noahide
Code. As such, R. Auerbach forbade any Jew301 from registering for organs from brain

298
July 1-4, 2010 in Lake Placid, New York. This student is grateful to Mrs. Joanne Friedman, R. Jay
Kelman and Dr. Elliot Malamet for organizing the conference and for graciously inviting me to attend.
Additionally, this student is appreciative to R. Steinberg for providing additional clarification when
personally approached after the lecture.
299
Before the pregnant sheep experiment, R. Auerbach believed that the Gemara, Arakhin 7a indicated that
brain dead patients are definitely alive. After the pregnant sheep experiment, R. Auerbach was in a state of
doubt, presumably analogous to the doubt(s) attributed to R. Jacob Kaminetzky supra, Section X.
[Technically, however, R. Auerbach (be-mechilat Kevod Torato) erred in equally attributing this position to
R. Feinstein. See supra, note 250.]
300
It might be academically interesting to investigate, according to this position of R. Auerbach, at what
precise moment in time the American legal system can be considered to have reached this conclusion. As
referenced supra, notes 230 and 238, the President’s Commission cites many legal contests that occurred in
individual US courts over the status of brain death. Would each jurisdiction follow its own court, or was it
necessary to wait until the official publication of that report, in order to apply R. Auerbach’s leniency?
301
While he did not explicit articulate the matter, presumably R. Auerbach would have allowed a Noahide
in the Land of Israel to register for an organ from a brain dead patient, since – from the perspective of the

133
dead patients. For a Jew to register for such an organ would represent potential gram
retzichah (causation of murder), itself forbidden even for purposes of piku’ach nefesh.302]
Indeed, a forerunner to this approach of R. Auerbach is the elucidation of R.
Moshe Feinstein to the episode of Rabbi Chanina ben Teradyon described by the Gemara,
Avodah Zarah 18a. In three Iggerot Mosheh responsa (viz. Yoreh De‘ah II, no. 174, sec.
3; Choshen Mishpat II, no. 73, sec. 3; and Choshen Mishpat II, no. 74, sec. 2) – the first
of which is the original responsum R. Feinstein authored regarded heart transplantation –
R. Feinstein suggests that the perhaps the Noahide Code grants Noahides greater
flexibility regarding the laws of homicide. Arguably, then, R. Auerbach inferred from this
analysis that since brain death is a safek, therefore Noahides are granted flexibility to
treat is as death, even though Jews are not.
However, R. J. David Bleich observes that in R. Feinstein’s aforementioned
responsa on this question, R. Feinstein expresses uncertainty regarding the suggestion
that the Noahide Code is granted greater flexibility regarding the laws of homicide.303

Noahide recipient – it is not an act of murder. [Intriguingly, this would represent the flip-side to the Ko’ach
Shor responsum analyzed infra, note 303.] However, the novel claim of R. Auerbach – viz. that the
Noahide Code is granted greater flexibility regarding the laws of homicide – will be refuted further in the
main text, such that no one [neither Noahide nor Jew] can register for an organ from a brain dead patient
[neither in the Land of Israel nor in the Diaspora].
302
Ritva to Pesachim 25b and Darkhei Teshuvah, Yoreh De‘ah 157, §48 forbid gram retzichah even for
piku’ach nefesh. Those sources are cited approvingly by R. Auerbach in forbidding a Jew from registering
for an organ from a brain dead patient in the Land of Israel. See R. Simchah Bunim Lazerson, Shulchan
Shelomoh, Erkei Refu’ah I (Jerusalem, 5766), p. 277. Additionally, while not explicitly cited by R.
Auerbach, the identical concept emerges from the Gemara, Kiddushin 43a, which teaches that a person who
dispatches an agent to commit murder is [in addition to the actual murderer] himself morally culpable for
the murder. See the interview on the Halachic Organ Donor Society website <http://www.hods.org> with
R. Moshe David Tendler, who insightfully references the latter source.
303
R. Bleich, Contemporary Halakhic Problems VII, pp. 411-424.
R. Bleich himself suggests as an alternate possibility (itself mentioned – though by no means
endorsed – by R. Feinstein) that the episode of Rabbi Chanina ben Teradyon can be explained based on
Rema to Shulchan Arukh Yoreh De‘ah 157:1 who allows a Jew to violate lifnei iver lo titen mikhshol
(Leviticus 19:14) regarding the three cardinal transgressions [including homicide] in order to save his/her
own life. Alas, this is a misapplication of that Rema by R. Bleich (be-mechilat Kevod Torato). As would
apparently emerge from the analysis of R. Isaac Schorr, Teshuvot Ko’ach Shor no. 20, Rema refers to a
situation where – from the perspective of the Jew – there is no prohibition against homicide altogether, and
it is only to the Noahide (before whom the Jew is placing a “stumbling block”) that the prohibition applies.
Namely, if a pregnant Jewish lady’s life is endangered by her fetus, she can ask a Noahide obstetrician to
perform a therapeutic abortion to save her life, even though this is placing a “stumbling block” before the
Noahide. [According to Torah law, Jews are permitted – and indeed obligated – to perform therapeutic
abortions, whereas there is a safek whether the same is true for Noahides, such that Noahides must be
passive as a matter of doubt. See R. Bleich, Contemporary Halakhic Problems IV, pp. 192-197. (*)] By
contradistinction, in a situation where the Jew himself is forbidden to commit an act of homicide (such as
vis-à-vis a brain dead patient), it is not merely a violation of lifnei iver, but – far more seriously – a
prohibition of gram retzichah for him to direct a Noahide to commit homicide. See supra, note 302.
[Indeed, R. Bleich himself, writing in a separate chapter in Contemporary Halakhic Problems IV, p. 223.
recognizes that gram retzichah is forbidden under all circumstances. (I am grateful to Reb Joseph Kaplan
for bringing the latter insight to my attention.)] This can be cited as one of the legitimate sources of
confusion in the brain death debate.

134
This uncertainty is particularly pronounced in the second responsum, where R. Feinstein
suggests an alternative solution: that Avodah Zarah 18a was a case of hora’at sha‘ah,
from which no normative behavior whatsoever can be gleaned.304
This uncertainty is significant, because – in a separate communication, and one
personally addressed to this student – R. Bleich wrote that all prospective doubts for
Noahides regarding potentially causing an act of homicide must be adjudicated to the side
of stringency.305 Ergo, it seems to this student that we are forbidden to rely on R.
Auerbach’s leniency to grant greater flexibility to the Noahide Code in terms of the
definition of death, and so it emerges that a Noahide cannot actually treat a brain dead
patient as dead in practice. If so, then no patient anywhere in world – be it in the Diaspora
or the Land of Israel – would be allowed to register for an organ from a brain dead donor.

(*) = Actually, as observed by R. Bleich elsewhere, viz. Be-Netivot ha-Halakhah III, pp. 159-160, there
seems to be a tension between R. Schorr’s elucidation of Rema to Shulchan Arukh Yoreh De‘ah 157:1 and
the obligation for Jews to truthfully guide Noahides in the details of the Noahide Code when so consulted
by Noahides. Additionally, R. Bleich, Be-Netivot ha-Halakhah I (KTAV Publishing, 1996), pp. 57-61
demonstrates that it is forbidden to falsify a halakhic teaching [including toward Noahides] even for
purposes of piku’ach nefesh. How, then, can a pregnant Jewish lady ever place a stumbling block before a
Noahide obstetrician, even for so noble a purpose as saving her life?
Accordingly, this student would propose that we can avoid the tension/contradiction by
formulating a more convoluted fact pattern to explain what Rema in Shulchan Arukh Yoreh De‘ah 157:1
actually means [when Rema allows lifnei iver of homicide for purposes of piku’ach nefesh]. Viz. Rema is
referring to a hypothetical case where an armed Noahide aggressor requires access to an item necessary to
perform a thereapeutic abortion (e.g. a potent drug) locked in a room for which only the Jew has possession
of the key. The armed Noahide aggressor then threatens the Jewish key-owner that if the Jew will not
surrender the key, then the Jew will be killed. Here, exceptionally, the Jew can surrender the key [thereby
violating lifnei iver on homicide] since – from the perspective of the Jew – a thereapeutic abortion is not
considered murder. And the Jew is not guilty of falsifying the Halakhah, since it is self-evident that the Jew
is not delivering halakhic guidance in surrendering the key, but is rather avoiding violent aggression with
which he has been threatened, as per Tosafot to Sotah 41b, s.v. kol ha-machanif le-chaveiro. [While this
student’s approach to the Rema would represent a more complicated approach than that which appears in
the literal words of Ko’ach Shor, a careful examination of the Ko’ach Shor responsum in question reveals
that the proposed placing of a stumbling block before the Noahide obstetrician is only mentioned as a
hypothetical obiter dictum and is ultimately irrelevant to the manner in which Ko’ach Shor successfully
resolves the case at hand. In other words, even Ko’ach Shor himself never actually directs any pregnant
lady to place a stumbling block before a Noahide obstetrician.]
304
Hora’at sha ‘ah essentially means that Rabbi Chanina ben Teradyon’s action was a momentary
prophecy, analogous to how the Gemara, Eruvin 64a, describes Rabban Gamliel as once having been
enveloped with a prophetic spirit.
More generally, since the Gemara, Berakhot 5a, reports that the entirety of the Tanakh and Talmud
was revealed to Mosheh Rabbeinu at Mount Sinai, it emerges that all events described by the Tanakh and
Talmud – including the episode of Rabbi Chanina ben Teradyon – were pre-programmed from Heaven, and
thus can be explained as a hora’at sha‘ah. And see the Gemara, Avodah Zarah 4b, which explicitly
identifies two biblical episodes as being pre-programmed from Heaven. Somewhat similarly, see R. Moshe
Sofer, Torat Mosheh (third edition) to Deut. 34:5, who explains that all events recorded in the Sefer Torah
were pre-programmed from Heaven even prior to Creation. [For further discussion, see Appendix C of the
present essay.] Mutatis mutandis, the same philosophy could be applied to all episodes recorded in the
Talmud.
305
See supra, note 240.

135
In order to certify the correctness of our verdict to forbid any patient anywhere in
the world from ever registering for an organ from a brain dead patient, let us investigate
the parallel responsum of (R. Auerbach’s mechutan) R. Joseph Shalom Eliashiv, Kovetz
Teshuvot I (Jerusalem, 5760), no. 218.306
In his responsum, R. Eliashiv advances the claim [somewhat analogous to that of
R. Auerbach] that it is permitted for a patient to register for an organ from a brain dead
patient donor [despite the fact that R. Eliashiv regards the brain dead patient as
potentially alive], yet – unlike R. Auerbach – R. Eliashiv does not distinguish between
the Land of Israel and the Diaspora. There are two separate problems which R. Eliashiv
addresses:
(1) The patient who registers for the organ is violating “you shall not stand idly by
your neighbour’s blood” (Leviticus 19:16) vis-a-vis the brain dead donor, by telling the
hospital to murder the brain dead donor.
(2) The Jew who registers for the organ is actively causing a homicide (gram
retzichah) by asking the hospital to murder the brain dead donor.

In response to the first problem, R. Eliashiv observes that a brain dead patient can
only live what he terms chayei sha’ah (temporary life). Although the Gemara, Yoma 85a
establishes that we must desecrate the Sabbath even to rescue chayei sha‘ah (meaning
that Leviticus 19:16 will apply even for chayei sha‘ah), R. Eliashiv infers a chiddush
from the language of the Gemara in Yoma 85a that this is only true when the patient with
chayei sha‘ah is known to us. But when the patient with chayei sha‘ah is unknown to us
(and due to considerations of medical confidentiality the hospital will not disclose to us
his identity), then there is no obligation that devolves upon us of Leviticus 19:16 for
chayei sha‘ah of the unknown patient. Thus, asserts R. Eliashiv, a Jew who needs an
organ may register for an organ, without risking a violation of Leviticus 19:16, because
he will never know who the donor is
The more serious problem R. Eliashiv must address is the second, viz. gram
retzichah. Here, ignorance of the identity of the donor will not help; gram retzichah is
absolutely forbidden whether one is aware who is being murdered or whether one is not.
However, R. Eliashiv advances two reasons to bypass the charge of gram retzichah: (a)
He convincingly proves that it is a mitzvah to desecrate the Sabbath to save even the life
of a treifah (patient suffering from an anatomical deficiency that will kill him within a
year) or a gossess bi-yedei adam (patient who is moribund at the hands of human
violence), where there is no death penalty for murdering the patient. From this irrefutable
point, R. Eliashiv extrapolates the highly novel suggestion that there is no prohibition for
gram retzichah on a patient categorized as a treifah or gossess bi-yedei adam. Assuming
that a brain dead patient is a treifah or a gossess bi-yedei adam, it would then be
permitted to engage in gram retzichah vis-a-vis such a patient. (b) If the Jew would not
register for the organ, others would register anyway, since there is such intense demand

306
This responsum – addressed to R. Feivel Cohen on 2 Shevat, 5752 – is referenced by the 5770 RCA
Vaad Halacha study, p. 74. The 5770 RCA Vaad Halacha study adds “in that letter specific conditions are
spelled out clarifying when he permits this.” However, as we will now see in the main text, R. Eliashiv’s
conclusion (be-mechilat Kevod Torato) is mistaken.

136
for organs in hospitals everywhere. Thus, surprising as it may seem, the Jew actually
performed a lifesaving “favour” for the donor by registering for the organ [thus blocking
others from registering for the same organ.] Once the Jew has already registered, he need
not retract his registration, and is not considered a causation of murder.
Alas, it is clear that R. Eliashiv’s reasoning does not permit patients to actually
register for organs, due to the following rejoinder.
Regarding (1), it is indeed admittedly the case that R. Eliashiv’s conclusion is
eminently correct. Leaving aside whether or not his chiddush regarding the application of
Leviticus 19:16 to the chayei sha‘ah of an unknown patient is normative, it is obvious
that Leviticus 19:16 is not a problem in the context of registering for an organ because
the Gemara, Bava Metzi‘a 62a establishes the triage algorithm “your life takes
precedence over your fellow’s life.”307
However, regarding (2), there appears to be a substantive reason to challenge the
two arguments that R. Eliashiv advances. (a) R. Auerbach clearly does not see it this
way, as R. Auerbach rules that gram retzichah applies even to brain dead patients, which
is why he forbids receiving a heart transplant in the Land of Israel. [It is only in the
Diaspora where R. Auerbach allows registering for an organ because R. Auerbach
surmises that the Noahide Code authorizes the Noahide legislature to modify the laws of
homicide.] Indeed, R. Auerbach’s more stringent position appears plausible, in light of
the fact that the prohibition against suicide and gram retzichah are derived from the same
verse, as explained by Maharatz Chiyut in his novellae to the Gemara, Bava Kamma 56a,
and as reflected in Rambam, Hilkhot Rotze’ach u-Shemirat Nefesh 2:3. Suicide is
indisputably prohibited even for a treifah or a gossess bi-yedei adam. If so, gram
retzichah should be prohibited in the same context. (b) Although it is true that the
putative recipient performed a “favour” for the brain dead patient by registering for the
organ and blocking others from registering for the same organ, it is obvious that – once
the putative recipient is telephoned by the hospital with the “good news” that he has been
selected as the match – it is forbidden for the putative recipient to actually enter the
physical premises of the hospital in order to be surgically prepared to receive the organ.
This is because the longer the putative recipient stalls from entering the hospital, the
longer he can delay the [doubtful] murder of the brain dead patient. Ergo, the Jew must
stall as long as he can –which ultimately means to stall indefinitely308 – before entering
the hospital. If the Jew fails to stall and instead proceeds to the hospital, the Jew is guilty
of [doubtful] gram retzichah for however many minutes earlier this causes the brain dead
patient to be [doubtfully] murdered.309 Thus, the fact that others are willing to receive the

307
See Shalom C. Spira and Mark A. Wainberg, “HIV Vaccine Triage: Halakhic Considerations,” Jewish
Law Annual, Vol. XX (2013). [N.B. As carefully emphasized in that same article, under no circumstances
does this triage algorithm actually authorize sacrificing the lives of innocent others in order to save one’s
own life. Rather, this triage algorithm simply means that a rescuer must first save his own life before
rescuing others.]
308
This point is logically obvious, and is likewise formulated (le-havdil) in the secular study of
mathematics by Zeno. See R. J. David Bleich, Contemporary Halakhic Problems V (Targum Press, 2005),
pp. 101-102.
309
This reality emerges from the analysis provided by R. Howard Apfel in his lecture of Jan. 31, 2011,
available at <http://www.yutorah.org/sidebar/lecture.cfm/755965/rabbi-howard-apfel/the-moment-of-death-

137
organ in no way mitigates the culpability of the putative recipient who registers for the

part-3/>, 42:00-49:15 into the recording. Admittedly, R. Apfel recuses himself from offering a definitive
conclusion, pleading “you have to really know [Mesekhet] Sanhedrin really well to answer the she’elah.”
However, with all due appreciation for R. Apfel’s humility, it seems evident to this student that no scholar
anywhere in the world – no matter how encyclopedically versed in Mesekhet Sanhedrin – has been able to
offer a cogent explanation why there should be no prohibition of gram retzichah in failing to stall before
entering the hospital.
Nevertheless, taking his cue from R. Apfel’s humility, and not wanting to shoulder personal
responsibility for so awesome a determination, this student presented the above analysis before R. J. David
Bleich, who responded by e-mail on March 4, 2013 as follows:

“Your description of the heart transplant scenario is not quite accurate. I am told they set
a time for removal of the heart in order to assemble a team and then begin notifying
potential recipients.”

However, this student then remonstrated that, even so, the surgical team will not actually remove
the heart until the putative recipient is surgically prepared [or at least gives the signal that he is on his way
to be surgically prepared]. Ergo, the longer the putative recipient stalls from entering the hospital, the
longer the [potential] gram retzichah is delayed, and so the putative recipient must stall indefinitely.
Indeed, this would seem to be the inescapable lesson from the story [related by R. Zelig Pliskin, Love Your
Neighbor (Aish HaTorah Publications, 1977), pp. 162-163] of how R. Velvel Soloveitchik refused to visit
an innocent prisoner on death row on Rosh ha-Shanah, because R. Soloveitchik realized that the longer R.
Soloveitchik would stall, the longer he could delay the execution, and this despite the fact that all the
townspeople of R. Soloveitchik [including R. Soloveitchek himself] were threatened with the death penalty
if R. Soloveitchik would not visit the prisoner.
R. Bleich subsequently responded by e-mail on March 18, 2013, as follows (employing Yiddish
transliteration):

“I cannot believe that the story as I understood it from you is true. 1) By promising to
come later in the day he would have been prolonging life. 2) He was engaged in
a ma’aseh hatzoloh, not mesirah. See my chapter in Be-Nesivos ha-Halakhah re the
difference between Vilna and Kovna.”

However, this student then remonstrated that – while promising to come later in the day would
indeed have been acceptable – nevertheless R. Velvel Soloveitchik would not have been allowed to actually
fulfill his promise by proceeding to the prison, and it is the latter which is analogous to the putative heart
recipient entering the hospital. Furthermore, regarding the distinction between hatzalah vs. mesirah, indeed
R. Bleich addresses this concept in Be-Netivot ha-Halakhah I, pp. 118-126 [-and see also the subsequently
published “HIV Vaccine Triage” (referenced supra, note 307) for a response, which would effectively
vindicate R. Pliskin contra R. Bleich (be-mechilat Kevod Torato)], but in any event that distinction is not
relevant to receiving an organ, because the reason a patient registers for an organ is to avoid illness, not to
avoid force majeure. In the context of avoiding illness, all gram retzichah (as well as doubtful gram
retzichah) is strictly forbidden as yehareg ve-al ya‘avor without possibility of appealing to any hatzalah vs.
mesirah dichotomy, as explained by R. Shlomo Zalman Auerbach, cited by Shulchan Shelomoh, Erkei
Refu’ah II, pp. 43-44.
After the above remonstration was left by this student as a telephone message, R. Bleich offered
no further comment on the subject, reflecting (in the opinion of this student) that we have exhausted R.
Apfel’s commendable humility, and so the halakhah remains that it is forbidden for any patient to go to a
hospital to receive an organ transplant from a brain dead patient.
[N.B. Regarding the episode of R. Velvel Soloveichik, be-chasdei Ha-Kadosh Barukh Hu,
Yishtabach Shemo, a happy conclusion was miraculously reached. Namely, the soldiers eventually returned
to R. Soloveitchik announcing that the defendant’s family had appealed the conviction, and so there would
be no execution of either the defendant or of the townspeople.]

138
organ. [Indeed, this is clearly implicit in R. Auerbach’s position which forbids receiving a
heart transplant in the Land of Israel.]
In summary, after carefully reviewing the responsa of R. Auerbach and R.
Eliashiv, we can stand with confidence behind the halakhic conclusion that it is forbidden
for any patient (Noahide or Jewish) anywhere in the world (Diaspora or the Land of
Israel) to register for an organ from a brain dead patient. And it is obviously forbidden for
any family to agree to such a donation or for any healthcare worker to actually execute
such a donation.

CONCLUSION

We have systematically classified the Rishonim regarding the definition of death


(Sections A-V), and have further applied those Rishonim to the contemporary diagnosis
of brain death by exploring the oral record regarding three Acharonim on the matter
(Sections W-AA), arriving at an equation which defines the brain dead patient as a safek
chai, safek gossess, safek met. We have then argued that the possibility of
cardiopulmonary resuscitation itself extends the window of doubt during which the
patient is potentially alive310 (Sections BB-DD), and have ultimately contended that this
halakhic conclusion is binding upon all humanity – Noahide as well as Jewish (Section
EE). In the process, we have merited to dispel many sources of confusion in the brain
death debate.311
R. Moshe David Tendler, in his 5728 response to the original heart transplants
that were conducted based on an inadequate definition of death [where the patients were
only comatose and not brain dead], establishes that:

“No man can claim right of independent action based on his own
conscience if this act involves boring a hole under his own seat.
Not unless he is alone in the boat. But we are all in the same
boat.”312

Indeed, ve-divrei fi chakham chen, u-sfatayim yishak (the words of the sage are
graceful and deserve applause).313 And so, we are authorized by the Oral Torah to apply
the same methodology of R. Tendler to the [markedly different] case of a brain dead
patient. Namely, although – as R. Tendler correctly demonstrates in subsequent
publications – R. Moshe Feinstein equated brain death with death, we have discovered
evidence to substantiate R. Jacob Kaminetzky’s countervailing position, and so “no man

310
This window of doubt would presumably render so-called “cadaveric” kidney donations impossible,
even after cardiac arrest. See supra, note 296.
311
See supra, notes 7, 11, 23, 32, 41, 82, 114, 129, 131, 134, 140, 184c, 185, 187, 195, 225, 238c, 239, 254,
282, 303.
312
Tradition 9:4 (Spring 1968), “Medical Ethics and Torah Morality,” p. 12.

R. Tendler’s methodology would subsequently be endorsed by R. Feinstein in the 5730 responsum


313

published as Iggerot Mosheh, Yoreh De‘ah II, no. 146. See supra, note 240.

139
can claim right of independent action based on his own conscience” to medically
abandon the brain dead patient.314 Rather, we are privileged to be endowed with a
mitzvah to continue providing medical care to the brain dead patient, as a matter of safek
piku’ach nefesh. This is conclusion is especially cogent given the recent public admission
of R. David Feinstein (son of R. Moshe Feinstein) – as outlined in Section AA above –
that we are obligated to medically treat brain dead patients.315

314
Somewhat similarly, R. Baruch Simon has remarked in a lecture of June 21, 2011 (available at
<https://www.yutorah.org/lectures/lecture.cfm/762038/rabbi-baruch-simon/aveilus-21-time-of-death/>,
2:51-2:56 into the recording): “I think a lot of people are not willing to say that there could be two opinions
on this matter.”
315
As documented supra, note 268a, Maimonides Medical Center announced on July 12, 2017 that it will
refrain from performing a brain death diagnostic exam on any comatose patient suspected of brain death,
when so requested by the patient’s family [de facto meaning that the hospital will provide continued
medical care for brain dead patients]. In light of the conclusion of this essay, that letter is worthy of
applause and should be adopted as the policy of all hospitals throughout the world. The one change that this
student would advocate is that [with the publication of the present essay] medical care must actually be
provided to all brain dead patients, regardless of the family’s request, since the halakhic requirement to
rescue a patient is not contingent on the patient’s [or the patient’s family’s] personal preference.

140
APPENDIX A:

A suggested hypothesis why R. Moshe Feinstein imagines that an


asystolic patient can continue breathing

As observed in notes 32, 36 and 74 of this essay, R. Moshe Feinstein, Iggerot


Mosheh, Yoreh De‘ah II, no. 146, s.v. aval barur u-fashut, expresses the medically
contrafactual belief that a patient can continue breathing even after cardiac arrest. The
following appendix will suggest a hypothesis how R. Feinstein may have arrived at such
a surprising notion.
Genesis 45:26 records – as translated by Ramban in his commentary to
Pentateuch – that Jacob`s heart arrested after he heard that Joseph was alive. Ramban
adds that Jacob stopped breathing, as well. Ramban further claims that Jacob remained in
this condition for “a significant time fraction of the day” (zman gadol min ha-yom) and
that during this time, his sons were yelling in his ears and showing him Joseph`s wagons.
Ultimately, this audio-visual stimulation enabled Joseph to recover.
R. Isaac Arama’ah, Akeidat Yitzchak, critiques Ramban, asking that if Jacob was
in cardiac arrest, how could he hear anything his sons said?316
Nevertheless, Ramban is cited approvingly by R. Moshe Sofer, Teshuvot Chatam
Sofer, Yoreh De’ah 338, s.v.ve-hineh ha-Rivash. Without mentioning Akeidat Yitchak, R.
Sofer appears deflects the critique by explaining that Jacob suffered cardiac arrest, but he
was still breathing in a shallow manner, so he remained receptive to his sons’ words,
albeit barely.
Accordingly, we may hypothesize that R. Moshe Feinstein took Chatam Sofer’s
words literally and understood him to be explaining that Jacob continued breathing even
after cardiac arrest. Indeed, since Chatam Sofer continues in the immediately following
paragraph (s.v. aval kol she-achar) that “in any situation where [the patient] lies
inanimate as a stone and has no pulse, if afterwards his breathing ceases, then we have
only the words of our holy Torah that [the patient] is dead,” R. Feinstein may have (once
again) inferred the physiological possibility of breathing after heartbeat.
Of course, it is medically impossible to breathe after heartbeat (-contrary to R.
Feinstein’s assertion, with all due respect manifest before R. Feinstein).317 How, then, can
we explain Ramban? There are several possibilities:
(a) Perhaps nature has changed since the biblical era, as per the principle of
nishtanu ha-teva’im reflected in Tosafot to Mo’ed Katan 11a and other
sources. Thus, although nowadays a person in cardiac arrest can no longer
breathe, in the biblical era it was still possible.

316
Although not mentioned by Akeidat Yitzchak, there would also be a question how Jacob could survive “a
significant time fraction of the day” (presumably meaning many hours) in a state of cardiac arrest. [N.B.
Regarding the practical question of how to manage the same clinical problem when transposed to cardiac
arrest patients of our contemporary era, see supra, Section CC.]

As R. Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 88 explains, the greatest honour we can confer
317

upon Chazon Ish is to posthumously correct those (exceedingly seldom) errors he committed. Mutatis
mutandis, the same applies to posthumously correcting R. Feinstein.

141
(b) Perhaps what Chatam Sofer really means (in elucidating Ramban) is that
Jacob’s heartbeat became imperceptible, but nevertheless remained
undetectable to outside observers. As such, Chatam Sofer would essentially be
embracing the words of Chakham Tzvi [discussed in Section B of the main
text of this essay] that the reason Yoma 85a directs us to examine the nose of
an avalanche victim is because sometimes the pulse is imperceptible. [The
difficulty with this approach to Chatam Sofer, however, is that he never cites
Chakham Tzvi, as one would expect him to do so if he intended to embrace
Chakham Tzvi’s words.318] Such an explanation is entirely congruent with
medical reality today.
(c) R. Abraham Lieblein, Kessef Mezukak supercommentary to Ramban, offers a
completely different explanation of Ramban than Chatam Sofer. Kessef
Mezukak takes cognizance of Akeidat Yitzchak’s attack on Ramban and
answers (in defense of Ramban) that Jacob momentarily experienced cardiac
arrest but was then immediately resuscitated, so that he could subsequently
hear his sons’ good news. Such an explanation is entirely congruent with
medical reality today. [Not realizing that Kessef Mezukak offered this superior
explanation to Ramban, R. Feinstein was misled by the literal formulation of
Chatam Sofer’s words.]

318
As explained supra, note 129, although Chatam Sofer cites a passage of Moreh Nevukhim, it is a
completely separate and unrelated passage in Moreh Nevukhim to that cited by Chakham Tzvi. Thus, there
is no overt overlap between Chatam Sofer and Chakham Tzvi (other than the fact that they both analyze the
Gemara, Yoma 85a). Ergo, there is some measure of difficulty in assuming that Chatam Sofer – in
elucidating Ramban to Genesis 45:26 – intends to embrace the words of Chakham Tzvi, when he never
overtly mentions Chakham Tzvi. This remonstration is correctly articulated by R. Daniel Reifman, “Ancient
Sources, Modern Problems: A Methodological Analysis of Rashi’s Position on Brain Death” (referenced
supra, note 7).

142
APPENDIX B:

Several hypothesized approaches why R. Moshe Feinstein identifies the


brain and the heart as the two sources of life

As described in the text accompanying note 36 of this essay, R. Moshe Feinstein,


Iggerot Mosheh, Yoreh De‘ah II, no. 146, s.v. aval barur u-fashut, identifies the brain
and the heart as the two sources of life. Although R. Feinstein never explains how he
came into possession of this information, it seems to this student that there are several
hypothetical ways (possibly independent of one another but not necessarily mutually
exclusive to one another) to explain why R. Feinstein identifies the brain and heart as the
sources of life, as follows:

1) In this responsum, R. Feinstein acknowledges that Rashi to Yoma 85a identifies


cardiac activity as a sign of life. Yet, in his resposum written two years earlier
(published as Iggerot Mosheh, Yoreh De‘ah II, no. 174), R. Feinstein recognizes
the concept of physiological decapitation that emerges from the Gemara, Chullin
21a [as elaborated in Section Q of the present essay], and in fact this, too, is the
position of Rashi [as elaborated in Sections O-P of the present essay]. Arguably,
then, synthesizing the two comments of Rashi together [and assuming that the
Halakhah follows Rashi], R. Feinstein postulated that the brain and the heart are
the two sources of life.

2) Shulchan Arukh Orach Chaim 25:5 rules [based on Rabbeinu Yonah]:

“[The Jew] should intend when donning [tefillin] that the Holy One,
blessed be He, has commanded us to place these four paragraphs which
contain the Unity of His Name, and the Exodus from Egypt, upon the arm
opposite the heart, and on the head opposite the brain, so that we will
remember the miracles and wonders that He performed for us – which
demonstrate His Unity and that He has the power as well as the
sovereignty in the upper and lower worlds to do with them as He wills.
And [the Jew donning the tefillin] should subjugate to the Holy One,
blessed be He, the soul which is in the brain, and also the heart which is
the headquarters of desires and thoughts, and in this he will remember the
Creator, and [the Jew] will diminish [pursuit of] his [personal] pleasures.”

Arguably, these comments of Shulchan Arukh [based on Rabbeinu Yonah] identify the
brain and heart as the two sources of life.

3) It is now physiologically known that the heart and brain represent the two [and
only two] electrical batteries within the human being. Since R. Isaac Schmelkes,
Teshuvot Beit Yitzchak, Yoreh De‘ah, Hashmatot, no. 31, and R. Chaim Ozer
Grodzinski, Ha-Darom, no. 32 (Tishrei 5731), rule that generating a flow of
electrical current is rabbinically forbidden on the Sabbath as an act of “causing to
be born” (molid), one might arguably infer that whatever electric batteries

143
naturally exist in the human being must be the sources of life. And similarly, since
Chazon Ish, Orach Chaim 50:9, writes that the completion of an electrical circuit
is biblically forbidden on the Sabbath as an act of “building” (boneh), one might
arguably infer that whatever electric batteries naturally exist in the human being
“build up” (i.e. are the sources of life) for the human being.

4) The brain and heart are evarim she-ha-neshamah teluyah vahem (viz. organs on
which life depends, highlighted by the Gemara in a variety of legal contexts). This
hypothesized interpretation of why R. Feinstein identifies the brain and heart as
the sources of life is R. Hershel Schachter’s implicit claim in Be-Ikvei ha-Tzon no.
36, which R. Schachter renders more explicit in a subsequent oral lecture on Apr.
20, 2010.319 In that subsequent lecture, R. Schachter argues that since R. Feinstein
states twice (in Iggerot Mosheh, Yoreh De‘ah II, no. 146, p. 249,
third paragraph) that the nose is not an ever she-ha-neshamah teluyah vo, this
means that R. Feinstein intends to incorporate the entire idea of evarim she-ha-
neshamah teluyah vahem into his responsum. R. Schachter continues that since
the three evarim she-ha-neshamah teluyah vahem identified by Rambam, Hilkhot
Arakhin ve-Charamin 2:4 are the head, liver and heart, R. Feinstein summarizes
these as the brain and heart.
R. Schachter assumes that “brain” is synonymous with “head” In fact,
while never cited by R. Schachter, his assumption appears to be correct, based on
a parallel Rambam, Hilkhot Geirushin 13:18, which – pursuant to the Gemara,
Yevamot 120b – identifies the three anatomical places “from which the soul
departs” [which presumably are synonymous with evarim she-ha-neshamah
teluyah vahem320] as “the heart, the brain and the intestines.”321 Quite
significantly, the latter Rambam is codified as halakhah by Shulchan Arukh Even
ha-Ezer 17:31.
Of course, according to this logic, we must inquire why R. Feinstein omits
any reference to the liver, when the liver is also one of the three evarim she-ha-
neshamah teluyah vahem. A possible conjecture might be that what the scientists
of the Talmudic era understood as a hepatic function was subsequently discovered

319
Recorded at <https://www.yutorah.org/lectures/lecture.cfm/744486/rabbi-hershel-schachter/sotah-shiur-
28/>. The pertinent discussion begins at 83:20 into the lecture.
320
And see Chazon Ish, Even ha-Ezer 28:1, who clearly writes that the concept of anatomical places “from
which the soul departs” bespoken by Yevamot 120b is synonymous with the concept of evarim she-ha-
neshamah teluyah vahem. [Rather confusingly, however, Chazon Ish also expresses some doubt whether
the brain is considered an ever she-ha-neshamah teluyah vo. Chazon Ish’ remarks appear unfathomable at
first blush, when Shulchan Arukh Even ha-Ezer 17:31 rules that the brain is included among anatomical
places “from which the soul departs. For further discussion, see supra, note 184c.]
321
Presumably, “intestines” is a figurative expression intended to include the liver. Although, scientifically
speaking, the intestines and the liver are completely distinct organs, nevertheless for purposes of the
halakhic discussion at hand, Rambam [followed by Shulchan Arukh Even ha-Ezer 17:31] may have
employed the term “intestines” in a general sense of “the organs that reside within the abdominal cavity,”
which would then include the liver. [Were it not so, one would have to reject the contention of Chazon Ish
(cited supra, note 320) that Yevamot 120b is discussing evarim she-ha-neshamah teluyah vahem.]

144
by William Harvey to be a cardiac function. [If this understanding of medical
history is correct, then R. Feinstein adjusted for Harvey’s discovery by identifying
the evarim she-ha-neshamah teluyah vahem as the brain and heart alone,
discarding the anachronistic misunderstanding regarding the liver.]
Specifically, Dr. Meyer Friedman and Dr. Gerald Friedland, Medicine’s
10 Greatest Discoveries (Yale University Press, 1998), p. 18ff, explain Harvey’s
discovery as follows:

“Thousands of years before the Englishman William Harvey was


born, Egyptians, Greeks, and Romans not only were aware of their
beating heart but attributed it to the dominant role in their spiritual
and emotional activities. They believed that if humans possessed a
soul, it resided in the reddish mass that pounded perpetually in
one’s chest. But they never troubled to find out what the beating
was all about, even though they recognized that once the beating
stopped, life would stop – and the soul residing in that beating
heart would vanish.
“Further, no Egyptian, Greek or Roman understood what relation if
any a person’s blood had to this pulsating organ the size of a hand.
Their essential ignorance of the functions of both the heart and the
blood sprang from their failure to dissect a still-living animal [sic –
and with good reason, to avoid tza‘ar ba‘alei chaim (SCS’s
editorial comment)]. They had never directly observed the
contractile and sequential movements of a living heart and the
course of the blood in both veins and arteries. Their only
knowledge of the heart and blood vessels derived from inspection
of the dissected organs and tissues of human corpses.
Unfortunately, the arteries of a corpse never contain blood,
because when the heart ceases to beat and eject blood into the
arteries, the latter contract and push all their blood into the veins.
“Thus, the Egyptian, Greek and Roman ancients, seeing no blood
in the arteries of their dissected corpses, assumed that such vessels
during life contained only air. Since the veins of these corpses
always bulged with blood, particularly the veins entering and
leaving the liver, early physicians concluded that all blood was
made by this organ, which then furnished its blood, via the veins,
to the other organs of the body. Recognizing that the heart must
play some role in the body’s economy, they postulated that it
imparted a “vital spirit” to the blood entering and leaving the two
chambers, or ventricles. They did not know exactly how blood
entered the heart, how it traveled from the right to the left
ventricle, or where it went after leaving the heart.
In the middle of the second century of [the secular common era
(SCS’s editorial halakhic paraphrase)], the Greek physician Galen
made a revolutionary discovery. He observed that the right side (or

145
right auricle) of the heart received blood from the large veins
emptying into it, and that this blood was then ejected by the right
ventricle into the lungs via the pulmonary artery. He further
observed that the lungs drained this blood into the left side of the
heart, which in turn pumped it into the aorta, the major blood
vessel leaving the left ventricle.
“Galen made two other cardiovascular discoveries of transcendent
importance. He recognized that the heart was essentially a mass of
muscles whose contraction pumped blood to and through the lungs
to the left side of the heart, which in turn pumped into the aorta. In
short, he recognized what the heart was: a pump.
“His second great discovery was that, contrary to the belief of his
ancient Greek and Roman forebears, arteries did not carry air; they
carried blood…
…Physicians for more than a thousand years [after Galen] believed
that his descriptions depicted the cardiovascular functions of an
animal, not of a person. As a consequence, these most important
observations of all the hundreds of medical phenomena described
by Galen in his voluminous writings were not accepted as
applicable to the human heart or its blood vessels. Galen erred,
moreover, in continuing to believe, as had his Greek predecessors,
that the liver not only formed the body’s blood, it also pumped it to
the rest of the body.
So, for fourteen centuries after his death, although Eurpoean
physicians scrupulously accepted every one of Galen’s other
observations and concepts, the structure and functions of the heart,
arteries, and veins continued to be matters of fantasy – precisely as
they had been prior to Galen’s discoveries. His observations were
not lost; they remained securely, if obscurely, entrenched in his
surviving writings.
They were rediscovered in the middle of the sixteenth century by
the Michael Servetus, a Spanish physician... [whose information
was later elaborated upon by William Harvey.]”

According to the above medical history text, in the time of Talmud, scientists
realized that – in a general sense – blood moves in the human body, but there were two
specific disputes between Galen and all other scientists: (a) Galen professed that the
arteries circulate blood, whereas the other scientists professed that only the veins
circulate blood while the arteries circulate air; (b) Galen professed that the heart is the

146
muscle that propels circulation of blood, whereas the other scientists professed that the
liver is the “muscle” that propels circulation of blood blood.322
With Harvey’s discovery, humanity realized that Galen had been correct all along
regarding the above two disputes. As such, one might argue that R. Feinstein adjusted for
Harvey’s discovery by identifying the evarim she-ha-neshamah teluyah vahem as the
brain and heart alone, omitting the liver.

322
Actually, we now realize that the liver is a gland – not a muscle, and so we now realize that the
contention [of the scientists who disputed Galen] was an absurd contention.

147
APPENDIX C:

A suggested hypothesis how R. Moshe Feinstein reconciles Ibn Ezra’s


commentary to Deut. 34:1 with Rambam’s eighth principle of faith

As described in the main text accompanying notes 151-156 of this essay, R.


Moshe Feinstein, Iggerot Mosheh, Yoreh De‘ah III, no. 114 insists that Ibn Ezra accepted
Rambam’s eighth principle of faith, yet R. Feinstein never explains how to reconcile Ibn
Ezra’s commentary to Deut. 34:1 with Rambam’s eighth principle of faith. The following
is a suggested hypothesis to fill the lacunae in R. Feinstein’s responsum.
The Gemara, Bava Batra 15a, quotes a Sifrei which grapples with the paradox of
how Mosheh Rabbeinu could have transcribed the final eight verses of the Torah scroll,
which describe Mosheh Rabbeinu’s own passing. Rabbi Yehudah/Nechemiah insists that
the final eight verses were actually transcribed by Joshua. Rabbi Shimon counters by
invoking Deut. 31:26, which proves that the scroll must have been already been
complete. After all, a Torah scroll missing even one word would not be kosher. Rather,
continues Rabbi Shimon, even the last verses were written by Mosheh Rabbeinu, albeit
be-dema (literally "with tears," but alternatively "in a jumbled form").
R. Moshe Sofer, Torat Mosheh (third edition) to Deut. 34:5, elucidates be-dema
based on an oral tradition from the Vilna Ga'on. Ramban, introduction to Pentateuch,
comments that the Torah scroll existed before Creation as black fire written on white
fire.323 Vilna Ga'on explains that whereas the Torah is eternal, it catalogues events that
unfolded within our space-time continuum. As each event materialized, the portion of the
scroll describing that event became legible to human observers. Those portions
describing future events remained "jumbled," viz. unintelligible to any human observer
other than a prophet. R. Sofer concludes that both opinions are true: Mosheh Rabbeinu
wrote the ultimate verses in a jumbled form, and then Joshua re-wrote them legibly.
In order to better appreciate R. Sofer’s elucidation, we may elaborate as follows.
Since the writing of a Sefer Torah constitutes a mitzvah de-Oraita (as per the Gemara,
Sanhedrin 21b), and since no prophet after Mosheh Rabbeinu possesses the authority to
change the parameters of any mitzvah de-Oraita (as per the Gemara, Megillah 2b),
therefore even according to Rabbi Yehudah/Nechemiah, we must still assume that
Mosheh Rabbeinu was orally told in advance (as a Halakhah le-Mosheh mi-Sinai) that
these eight verses will be transcribed by his disciple Joshua. After all, shi‘urim
(mathematical measurements pertaining to mitzvot) are themselves all the product of
Halakhah le-Mosheh mi-Sinai, as per the Gemara, Eruvin 4a, and a Sefer Torah possesses
a mathematical measurement of how many verses (and words) it must possess in order to
be kosher.324

323
Ramban reports that this is known to us by tradition. R. Chaim Dov Chavel, Mossad Harav Kook
elucidation of Ramban’s commentary, identifies Midrash Rabbah to Song of Songs 5:11 as the source of
this tradition, also quoted by Rashi in his respective commentaries to Pesachim 54a, s.v. resheet darko;
Deut. 33:2; and Song of Songs 5:11. Cf. Talmud Yerushalmi, Shekalim 6:1.
324
Indeed, Chazon Ish, Orach Chaim 125:2 comments “behold it is clarified in the words of our Sages,
their memory is a blessing, that all 613 mitzvot were spoken to Moses during those 40 days,” and this
remark of Chazon Ish would obviously include the very 613th mitzvah, viz. writing a Sefer Torah.

148
Philosophically speaking, the need for a revelation of the final eight verses on two
distinct occasions arises from the paradox created by the dialectical facts that: (1) Mosheh
Rabbeinu must be the official secretary of the Sefer Torah, as it is the Will of the Holy
One, blessed be He, that all mitzvot be revealed through Mosheh Rabbeinu, pursuant to
the Gemara in Megillah 2b; yet (2) the contents of the Sefer Torah must be absolutely
true when they are first written, since “the seal of the Holy One, blessed be He, is truth,”
as per the Gemara, Shabbat 55a. As such, it is impossible for the official secretary of the
Sefer Torah to write about his own passing, since that would represent a situation
(Heaven forbid) of mit’chazei ke-shikra (viz. the appearance of falsehood) as per the
Gemara in Ketubot 21b, unless the material is revealed a second time to Joshua once
Mosheh Rabbeinu’s passing is already a fait accompli.325
Now, according to a textual variant of the Sifrei, immediately after the debate
regarding the transcription of the final eight verses, Sifrei continues “Rabbi Eliezer says,
twelve…” As such, in order to defend R. Feinstein’s reconciliation of Ibn Ezra with
Rambam’s eighth principle of faith, perhaps we may hypothesize that Ibn Ezra
(mis)understood this textual version of Sifrei as offering a third opinion regarding the
transcription process of the final chapter of the Pentateuch, asserting that according to
Rabbi Eliezer, it is the final twelve (not just eight) verses that were transcribed by Joshua.
Ergo, Ibn Ezra found this [viz. what he (mis)understood as Rabbi Eliezer’s position] to be
logically compelling, and so he adopted it in his commentary to Deut. 34:1.
However, this hypothesized solution to defend R. Feinstein is conjectural, since
what the Sifrei actually means [even according to the textual variant in question] is that
Rabbi Eliezer is reporting that a Heavenly voice could be heard over an area of twelve by
twelve mil [corresponding to the area occupied by the Israelite encampment] announcing
that Mosheh Rabbeinu had ascended to the Heavenly Academy. Thus, contrary to the

Cf. the closely following passage in Chazon Ish, Orach Chaim 125:4, where Chazon Ish inquires
why Mosheh Rabbeinu had to ask the Holy One, blessed be He, for halakhic guidance on various occasions
during the wilderness (e.g. regarding the inheritance of Tzelofchad’s estate), when Mosheh Rabbeinu had
already received the complete revelation at Mt. Sinai. Chazon Ish answers with two possible approaches:
(a) the occasions on which Mosheh Rabbeinu has to ask represent represent mere details of laws, with the
main laws already having been all revealed to Mosheh Rabbeinu at Mt. Sinai; and (b) it could be that
Mosheh Rabbeinu was even told these details at Mt. Sinai, and that he was specifically told at Mt. Sinai that
he is not authorized to announce the answer (to Tzelofchad’s family, etc.) until he asks again. Accordingly,
the approach of R. Sofer would dovetail best with Chazon Ish’ second approach. Namely, Mosheh
Rabbeinu was taught the entire contents of the Sefer Torah (written as black fire on white fire) in advance
even before those events unfolded in our space-time continuum, but Mosheh Rabbeinu was not authorized
to reveal to anybody in advance what would occur. [And, as the script of the Sefer Torah demands that
Mosheh Rabbeinu would ask what is the halakhah regarding Tzelofchad’s estate, etc., Mosheh Rabbeinu
did so even though Mosheh Rabbeinu already knew the answer from the revelation at Mt. Sinai.]
325
Interestingly, the Gemara, Kiddushin 29b, records a dispute between Rabbi Yehudah and the Sages
whether a Torah scroll has the status of a commercial IOU document (shtar). Rabbi Yehudah holds to the
affirmative. Elsewhere, the Gemara, Ketubot 21b, posits that when a court supervises the preparation of a
shtar, the court must avoid mit'chazei ke-shikra, viz. the "appearance of falsehood" by prematurely signing
on future events. It is thus appropriate why specifically Rabbi Yehudah would express dismay about the
final verses, and why the solution resides in their being jumbled, thereby negating the “appearance”
(literally) of falsehood. [For an elucidation of the parameters of mit’chazei ke-shikra, see R. J. David
Bleich, Contemporary Halakhic Problems V (Targum Press, 2005), pp. 277-284.]

149
attempted defense of R. Feinstein, Rabbi Eliezer is not commenting on the dispute
regarding the transcription process of the final verses of the Pentateuch. To that effect,
Shulchan Arukh Orach Chaim 428:7 rules against Ibn Ezra, stating that only the final
eight verses – not the final twelve verses – have a special status during the public reading
of the Torah. Arguably, then, the methodological problem with invoking Ibn Ezra as a
posek [as identified in the main text accompanying note 156] potentially remains.326

326
It must be emphasized that the problem is only with Ibn Ezra; the problem is not with Rambam’s eighth
principle of faith. The halakhah indeed follows Rambam’s eighth principle of faith, as per the Gemara,
Megillah 2b and Sanhedrin 99a. [Actually, the halakhah follows all of Rambam’s thirteen principles of
faith. See, for example, this student’s column in the Canadian Jewish News of Oct. 2, 2014, p. 28, for a
reconciliation of the Selichot liturgy with Rambam’s fifth principle of faith. At the same time, this redounds
to the credit of R. Shapiro’s work on the topic (referenced supra, note 155), as R. Shapiro offers many
valuable insights that enrich our understanding of the halakhah, and that have indeed facilitated the present
Appendix C of this essay.]
It is thus imperative to correct the regrettable error (and by these presents this writer hereby
corrects the regrettable error) of R. Shlomo Zalman Neter, in his supercommentary on Ibn Ezra, Deut. 34:6,
who claims that one may (chas ve-chalilah) attribute transcription of certain Pentateuch verses to Joshua,
since according to one opinion in the Gemara, Makkot 11a, Joshua transcribed the passage about the Cities
of Refuge. Actually, it is perfectly clear from Makkot 11a that the Gemara is referring to the passage of the
Cities of Refuge in the Book of Joshua; the Gemara is not referring to the passage of the Cities of Refuge
in the Pentateuch. Rather, the entire Pentateuch – including the passage of the Cities of Refuge found in
Pentateuch – was dictated directly from the Holy One, blessed be He, to Mosheh Rabbeinu.
That having been established, it is interesting to observe how R. Neter’s introduction to his
supercommentary cites a letter from Rambam to Rambam’s son effusively recommending Ibn Ezra’s
commentary on Pentateuch as the one and only commentary worthy of study.

150
APPENDIX D:

Survey of poskim who debate whether to apply zeh ve-zeh gorem to


include food eaten by a cow before Pesach as impacting upon the
cow’s physiology during Pesach

As described in note 243 of this essay, poskim debate whether to apply zeh ve-zeh
gorem to include food eaten by a cow before Pesach as impacting upon the cow’s
physiology on Pesach.
The following poskim do believe that food eaten by a cow before Pesach
continues to halakhically impact upon the cow’s physiology during the holiday of Pesach:
R. Shneur Zalman of Lublin, Teshuvot Torat Chessed no. 21; R. Aryeh Leib ben Moshe
of Plotzk, Magen ha-Elef to Orach Chaim 448 (§10), R. Abraham Danzig, Nishmat Adam
(no. 9); R. Yehudah Assad, Teshuvot Yehudah Ya’aleh, Orach Chaim 127; R. Yehudah
Leibish Landau, Yad Yehudah al Shulchan Arukh Yoreh De’ah (hashmatot ve-chiddushim
le-hilkhot ta‘aruvot, no. 103, secs. 2-3), and R. Aharon David Deutsch, Teshuvot Goren
David no. 35.
In this student’s opinion, it is also the conclusive view of R. Joab Joshua
Weingarten, Teshuvot Chelkat Yo’av (mahadura tinyana, no. 20). R. Weingarten’s
approach is somewhat complex in this regard. Discussing the problem of milking a
chametz-eating cow on Pesach, he commences the paragraph ve-af de-likh’orah yesh
lomar by suggesting that zeh ve-zeh gorem should, at first glance, not combine the food
an animal ate a long time ago with the food it recently ate. This is certainly true for the
Rambam who rules that slaughtering a mesukenet (animal in danger of imminent death)
with an idolatrous knife renders the animal prohibited. The lifeforce of the animal before
it became a mesukenet does not combine with the knife to trigger zeh ve-zeh gorem.
Rather, we say that – had the animal not been slaughtered – it surely would have
imminently died (like any mesukenet) and so the single cause for the existence of the
consumable meat is the idolatrous knife (thus rendering the meat forbidden). However, R.
Weingarten then reverses himself because, in point of fact, the halakhah follows the
Rashba that a mesukenet animal slaughtered by an idolatrous knife is mainly permitted
(with the exception that one should throw money into the Dead Sea that is worth the
value of renting a knife – see Shakh to Yoreh De‘ah no. 10, §5, and Taz, ibid., §3). Thus,
R. Weingarten concludes that zeh ve-zeh gorem does apply to input factors into an
animal’s life that are temporally removed from one another, and he is willing to use this
as a justification to permit the cow’s milk on Pesach. Accordingly, R. Weingarten should
be counted among the poskim who hold that food an animal ate before Pesach continues
to physiologically impact upon the animal during Pesach.
According to this school of thought, we may hypothesize that the oxygen inhaled
by a patient before he became brain dead could possibly be regarded as continuing to
impact upon his heartbeat even after he becomes dependent upon the ventilator, such that
the heartbeat of a brain dead patient could be regarded as a “natural” heartbeat.
Admittedly, there are a number of Acharonim who dispute the foregoing and who
insist that the food an animal ate before Pesach does not combine with the food an animal
ate on Pesach in impacting upon the physiology of the animal. Pri Megadim, Eshel
Avraham, end of Orach Chaim 448, is only willing to invoke zeh ve-zeh gorem if the cow

151
ate chametz and non-chametz during Pesach itself. The implication of Pri Megadim is
that he would not be willing to rely on the food that was eaten before Pesach. Indeed,
such an inference is explicitly enunciated by R. Chaim Sofer, Teshuvot Machaneh
Chayim III, no. 20 (s.v. u-mah yakru be-einai). R. Sofer cites R. Shlomo Ganzfried as
having espoused this view, and proceeds to embrace it himself.
Similarly, R. Jacob Meshulam Orenstein, Yeshu’ot Yaakov to Orach Chaim 448
(§9) only allows relying upon zeh ve-zeh gorem when an animal eats chametz as well as
non-chametz on Pesach itself. Likewise rule R. Mordechai Benet, Teshuvot Parashat
Mordekhai, Orach Chaim no. 22 (s.v. ve-akatei) and R. Eliezer Fleckles, Teshuvah me-
Ahavah III, no. 325.
According to the latter school of thought, it should follow that the oxygen inhaled
by a patient before he became brain dead does not physiologically contribute to his
heartbeat while he on the ventilator, and so the heartbeat of a brain dead patient is not a
“natural” heartbeat, apropos R. Rappaport’s chiddush. Indeed, R. Moshe Feinstein,
Iggerot Mosheh, Orach Chaim I, no. 147, does not apply zeh ve-zeh gorem to food eaten
before Pesach [because he instead offers his own novel approach to the entire problem]
and this would be consistent with what R. Rappaport is reporting in his name.
However, it is interesting to note that a certain degree of equivocation seems to
exist in the latter school of thought. Yeshu’ot Yaakov to Yoreh De’ah 60 cites those who
do apply zeh ve-zeh gorem even if the cow ate exclusively chametz on Pesach, and
comments yesh be-zeh makom iyun (“there is in this a place to investigate,” which is not
quite the same as a rejection). Likewise, Parashat Mordekhai (in the aforementioned
responsum) proceeds to suggest that perhaps the foodeaten before Pesach could combine
with the chametz eaten on Pesach if one takes into account the fact that the cow itself is a
cause to the milk, and so there are two permitted causes (the pre-Pesach food and the
cow) versus one prohibited cause (the chametz on Pesach). [Parashat Mordekhai (s.v. ve-
atei shapir) nevertheless declines to rely on this leniency – as potentially legitimate as he
regards it - and decides, as a matter of caution, to be stringent. Arguably, then, Parashat
Mordekhai would not necessarily be as willing to transpose the same conclusion to the
context of brain death, since it results in a leniency of declaring the patient dead.] And as
for Teshuvah Me’ahavah, a careful reading of the aforementioned Goren David (who
reacts to Teshuvah me-Ahavah) reveals that Teshuvah me-Ahavah may actually have held
that the pre-Pesach food does bear a physiological impact on the cow during Pesach. The
only problem, according to Teshuvah me-Ahavah (as understood by the Goren David), is
that chametz eaten, even before Pesach, is regarded as a prohibited foodstuff (-a claim
which the Goren David proceeds to counter).
In any event, even if one ignores these signs of equivocation and counts Pri
Megadim, Machaneh Chayim, R. Shlomo Ganzfried, Yeshu’ot Yaakov, Parashat
Mordekhai and Teshuvah Me’ahavah as all having definitely ruled that the food eaten by
a cow before Pesach cannot be regarded as physiologically impacting upon an animal on
Pesach, their view is still counterbalanced by Torat Chessed, Magen ha-Elef, Nishmat
Adam, Yehudah Ya’aleh, Yad Yehudah, Goren David and Chelkat Yo’av.

152
APPENDIX E:

How to approach the anomalous Teshuvot Tzitz Eliezer XIII, no. 89

As explained in note 254 of this essay, R. Eliezer Yehudah Waldenberg, Teshuvot


Tzitz Eliezer XIII, no. 89, sec. 12 mistakenly equates two of his previous responsa on the
definition of death, when those two previous responsa actually establish separate points.
And as further remonstrated – as a more general observation – in that same note 254,
Teshuvot Tzitz Eliezer XIII, no. 89 is an anomalous responsum which is at variance from
other medical responsa of R. Waldenberg. The following appendix will now demonstrate
why the responsum in question is indeed anomalous as a more general observation, based
on the writings of R. J. David Bleich and R. Aryeh Klapper.
As we will see, while both R. Bleich and R. Klapper identify the general anomaly,
R. Bleich does so based on previous responsa of R. Waldenberg whereas R. Klapper does
so based on future responsa of R. Waldenberg. In and of itself, this temporal dichotomy is
not significant, since the future responsa of R. Waldenberg reference the previous
responsa, and so obviously R. Bleich and R. Waldenberg concur with one another’s
complementary sources. At the same time, R. Bleich and R. Klapper dramatically differ
on how to incorporate the anomalous responsum of Teshuvot Tzitz Eliezer XIII, no. 89,
into a practical halakhic conclusion. Viz., R. Bleich professes that we should reject the
anomalous responsum, whereas R. Klapper proposes that we should follow the
anomalous responsum. We will now summarize R. Bleich and R. Klapper’s respective
approaches.
R. Bleich327 calls attention to the fact that Teshuvot Tzitz Eliezer XIII, no. 89
is anomalous because the responsum allows passive euthanasia for an imminently dying
patient – ostensibly based on Rema to Shulchan Arukh Yoreh De‘ah 339:1 – in
contradistinction to three previous responsa of R. Waldenberg328 which require medically
rescuing (even) an imminently dying patient – based on several poskim, including R.
Moshe Sofer, Teshuvot Chatam Sofer, Yoreh De‘ah 338329 and Mishnah Berurah, Bi’ur
Halakhah, Orach Chaim 329:4. In the anomalous responsum, R. Waldenberg tries to
justify his about-face by asserting that Chatam Sofer and Mishnah Berurah [and others]
refer to a regular gossess (moribund patient), whereas Rema refers to the very end of the
gossess stage, i.e. the actual moment of departure of the soul from the body. R. Bleich
rejects R. Waldenberg’s purported distinction as tenuous, and indeed R. Bleich is able to
alternatively explain that Rema refers to either experimental therapies or to a gossess
with unmanageable pain. Since neither of the latter two cases are typically relevant to the
contemporary healthcare facility, R. Bleich requires medical intervention to rescue a

327
Bioethical Dilemmas I, p. 107; Be-Netivot ha-Halakhah III, p. 169.
328
Ramat Rachel, no. 25; Teshuvot Tzitz Eliezer II, no. 15, ch. 3, sec. 16; Teshuvot Tzitz Eliezer IX, no. 47.
329
Paragraph that begins mi-kol makom pashut yoter mi-bei’ah be-khut’cha. [Remarkably, this passage is
found in the very same responsum of Chatam Sofer that R. Moshe Feinstein repeatedly declared is
normative regarding the definition of death. See Iggerot Mosheh, Yoreh De‘ah II, nos. 146 and 174; and
Yoreh De‘ah III, no. 132.]

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gossess at no matter what gossess stage the patient finds him/herself, consistent with
Chatam Sofer and Mishnah Berurah [and others].
R. Klapper330 calls attention to the fact that Teshuvot Tzitz Eliezer XIII, no. 89 is
anomalous because the responsum allows passive euthanasia for an imminently dying
patient in contradistinction to two future responsa of R. Waldenberg331 which require
medically rescuing (even) an imminently dying patient. In the future two responsa, R.
Waldenberg tries to marginalize the previous Tzitz Eliezer XIII, no. 89 by explaining it
refers only to a patient in total cerebral and cardiac failure. R. Klapper remonstrates that
“he cannot construct a coherent reading” of this latest marginalization by R. Waldenberg,
and therefore R. Klapper proposes the following three-step argument:

1) Since the two future responsa of R. Waldenberg are incoherent, this suggests
that the two future responsa must be rejected, and instead the halakhah must actually be
that passive euthanasia must always be permitted in every gossess, based on Tzitz Eliezer
XIII, no. 89. R. Klapper finds his intuition strengthened by the fact that R. Chaim David
ha-Levi, writing in Techumin Vol. 2 (5741), indeed allows deactivating the ventilator of a
gossess on the claim that this is authorized by Rema to Shulchan Arukh Yoreh De‘ah
339:1.
2) R. Klapper’s conviction to permit passive euthanasia in every gossess is further
cemented as “compelling” because [in R. Klapper’s estimation] it is supported by
She’iltot de-Rav Achai Ga’on no. 103 who states that a patient whose neckbone and the
majority of the accompanying musculature have been broken is in a situation of “even
though his soul has not yet departed, he is dead and his soul is merely imprisoned within
him.” In the case of a gossess, the goal is to liberate the imprisoned soul by passive
euthanasia, thus fulfilling the mandate of She’iltot de-Rav Achai Ga’on.
3) Since Tzitz Eliezer XIII, no. 89, writes “it is permitted to even actively remove
the ventilator” (be-kum va-aseh), R. Klapper understands that we may actively do
anything to swiftly end the life of the gossess so long as we don’t cause pain, and this
would include extraction of organs.

Alas, R. Klapper (be-mechilat Kevod Torato) is subject to challenge at each step


of his above argument, as follows:

1’) If – as R. Klapper cogently protests – the two future responsa of R.


Waldenberg are incoherent, then we could just as well resolve that is the authorization to
perform passive euthanasia on a gossess [professed by Tzitz Eliezer XIII, no. 89, which is
what precipitated the subsequent marginalization] which should be rejected, so as to
follow the straightforward ruling of Chatam Sofer and Mishnah Berurah [and others] to
rescue a gossess. [After all, Mishnah Berurah and Chatam Sofer are supported by the
Gemara, Yoma 85a, that we desecrate the Sabbath even to rescue an avalanche victim for
“the life of an hour.”] Indeed, as we have seen, R. Bleich is capable of elucidating Rema

“An Alternative Construction of the Debate” (published in Halakhic Realities: Collected Essays on
330

Organ Donation, R. Zev Farber, ed., Maggid Books, 2017).


331
Tzitz Eliezer XIV, nos. 80-81.

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to Shulchan Arukh Yoreh De‘ah 339:1 in a satisfactory manner that is harmonious with
Chatam Sofer and Mishnah Berurah [and others], so why create a needless dispute
between Chatam Sofer and Mishnah Berurah [and others] vs. Rema? [The same article
by R. Bleich likewise identifies and counters R. Halevi’s Techumin article. 332]
2’) She’iltot de-Rav Achai Ga’on refers specifically to a decapitated [and hence
deceased] patient, quite different than a gossess who is still alive. As we have seen above
[section O of this essay], R. Naftali Zvi Yehudah Berlin’s commentary on that same
She’iltot explains that the situation of a broken neckbone and the majority of
accompanying musculature is a unique case of anatomical decapitation, which constitutes
death [such that further motion is irrelevant], unlike an anatomically in tact patient
[where motion itself is a proof of life]. Now, why anatomical decapitation should be
unique can be understood on the basis of the fact that a human requires a minimal
mathematical measure of rosho ve-rubbo to continue to exist, based on the Gemara,
Sukkah 3a. Admittedly, in fairness to R. Klapper, some Acharonim [likewise documented
above, Sections O and R] do recognize physiological decapitation as death even in an
anatomically in tact patient, but that is a controversial opinion opposed [or at least
doubtfully opposed] by R. Berlin and others, such that we have a mitzvah to medically
treat the brain dead patient, pursuant to the Gemara, Shabbat 129a that sfek nefashot le-
hakel.333
3’) At no time does Tzitz Eliezer XIII, no. 89 ever propose mercifully killing the
gossess patient by lethal injection, even though such a euthanising technique might
conceivably be even more humane than deactivating the ventilator. Apparently, then,
Tzitz Eliezer’s reference to kum va-aseh [insofar as that anomalous responsum is
concerned, the anomaly itself being sufficient to reject the entire responsum as per
counterpoint (1’) above], means only to actively terminate the ventilator, not to actively
terminate the patient. Accordingly, organ extraction would be categorically forbidden.
Likewise, at no time does R. Chaim David Halevi ever allow [lethal injection of or] organ
extraction from a gossess; it is precisely for this reason that R. Shaul Yisraeli finds it
necessary to engage R. Halevy in milchamtah shel Torah, as we saw above [Section S].

Ergo, it seems rather clear that the halakhah follows R. Bleich in how to approach
the anomalous responsum of Tzitz Eliezer XIII, no. 89. To his credit, R. Klapper prefaces
his own article by calling it “a very tentative suggestion,” hopefully meaning that we will
soon see a diamond-polished edition more in tune with R. Bleich.334

332
Bioethical Dilemmas I, loc. cit.: “Cf. R. Chaim David Halevy, Techumin II (5741), 303-305, who
recognizes that Rema’s examples are in the nature of segulot but fails to take cognizance of that aspect of
Rema’s comments as a possible limiting factor in applying Rema’s ruling.”
333
See supra, notes 240 and 245.
334
The paramount issue, of course, as R. Klapper emphasizes throughout his article, is that he cannot
accept R. Shlomo Zalman Auerbach’s position to allow Noahides a more flexible standard of definition of
death. As demonstrated in Section DD of the main text of the present essay, R. Klapper is most eminently
correct regarding this paramount issue, such that no human being anywhere – neither Noahide nor Jew – is
ever allowed to register for organs from a brain dead patient.
I thank R. Moshe Ashen, R. J. David Bleich, R. Yisrael Zvi Harari, Ms. Hannah R. Kramer, Reb
Etzion Neuer, R. Yuval Noff, R. Avi Shafran, R. David Shatz, Ms. Sarede Switzer, Reb Joseph Telio, R.
Jeremiah Unterman, R. Mordechai Willig and R. Mordechai Zeitz – in addition to scholars writing on the

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Torah Musings medium (hosted by R. Gil Student, including Reb IH and Reb Nachum [Lamm]) – for
discussing with me the halakhic issues, thereby illuminating my eyes. I am appreciative to the secular
science teachers at Dawson College (DEC, 5758) and McGill University department of physiology (BSc,
5761) for educating me in the relevant discipline. The assistance at Lady Davis Institute for Medical
Research of Matthew McCallum and Deshanthe Joseph Pillai is gratefully acknowledged. This essay
benefited from the guidance of my mentors R. Efraim Greenblatt, R. Joshua H. Shmidman and Dr. Mark A.
Wainberg, each of whom subsequently ascended to the Heavenly Academy. Any errors are solely the
responsibility of this student.
While composing this essay, this student sustained a major spinal cord trauma, which [while
happily not comparable to brain death] almost precluded the completion of this project. Thanks to the Holy
One, blessed be He, a miraculous medical recovery has been achieved by this servant. Appreciation is
expressed to Dr. Evan Brahm, Roslyn & Reb David Gutman, Helen & Reb Harry Lieberman, Dr. Joseph
Portnoy, Sarah & Reb Yossi Remer, Dr. Hyman Schipper, Dr. Ronald Schondorf, Dr. Irvin Spira and
Bluma & Reb Eliezer Turgel who assisted this student in the rehabilitation process.

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