Dying: A Postmortem

Rabbi Gil Student recently hosted a symposium on his blog Hirhurim on the “Ethics of Brain Death and Organ Donation”. I am grateful for his effort because it brought renewed focus on a very sensitive area that few of us are familiar with. The intricacies of Jewish Law, which come into play, are varied and nuanced; presenting the issues are important since ultimately we are all affected. Apparently he invited eight scholars to contribute to the discourse and after reading them it became apparent that while it was interesting, unfortunately it didn’t present any earth shattering new information in the field. Most of the participants referenced the known recognized halachic stars and poskim of the 20th-21st century, i.e. Rabbis S.Z.Auerbach, E.Waldenberg, A.Soloveitchik, Y. Elyashiv, J.D.Bleich and others. Some of the contributors were more articulate than others, none of them really zeroed in deftly on the ethical questions involved. There were two however that triggered some red flags when they slid into the area of “give-get”, but that I’ll get into later. Another concern was clarifying the real purpose and intention of the symposium. After all this has been a dead issue since at least 1986 when The Chief Rabbinate Council of Israel on Transplants ruled and again in March 2008 when a law was passed in the Knesset regarding the matter. Another disappointment in these scholars was their avoidance of ethical considerations, while relying upon halacha as though it existed in a vacuum.

My assumption is that the recent deliberations and report of the RCA Vaad Halacha, (committee on Jewish Law) on whether BSD (brain stem death) is an halachically acceptable standard regarding organ donation was what preempted the symposium. Troublesome isn’t the content of the report, but the fact that there was any need to issue a report. After all, the RCA isn’t a hareidi rabbinic organization, and has usually been in tandem with the Chief Rabbinate of Israel. I would assume that if the decision of the Chief Rabbinate going back to 1986 was to accept BSD as an halachic criteria for death than the issue ought to be laid to rest for at least that community of centrist and modern Orthodox rabbis. Oddly however was the fact that some of the respondents in the symposium were of the right wing, including Agudah apparatchiks who would never agree with the Chief Rabbinate of Israel – on anything.

The other issue I have is with the few who risked wading into the area of medical ethics and the ethical decision-making process. Frankly I was shocked at the temerity and lack of sensitivity of two of the scholars who exploited the proverbial halachic loopholes in order to benefit from the transplants while at the same time ruling that BSD can be ruled on not only as murder but double murder. Rabbi Avi Shafran, Dir. Of Public Affairs for Agudath Israel of America reasoned the following: “Can a potential recipients religious beliefs…constitute valid grounds for penalizing him…? Legally speaking, denying someone a transplant simply because joining an organ donation system would force him to dishonor his religious beliefs would…amount to curtailing his constitutional rights….”

Shafran’s ethical standard on the subject leaves something to be desired. In a society where organs are in short supply and limited, and people are asked to participate on a “give-get” basis, it would stand to reason that those who do participate ought to benefit before those who refuse to participate. No one is being coerced, and no ones religious freedoms are being trampled upon. However, the decisions we make do have consequences. Choosing to live apart, for whatever the reason, whether it is personal convictions or religious belief doesn’t entitle one to reap the same benefits as those who choose to participate and contribute. If one decides not to participate in “give-get” he ought to be prepared to forego a possible transplant, isn’t that what standing on principles really mean: to talk the talk and walk the walk. The ethics of “give-get” become even more convincing when we also consider the normative halachic practice in Israel where BSD is an accepted clinical criterion of declaring someone dead. In spite of the responsible and sagacious advise of the Chief Rabbinate, if one decides to choose to listen to his local rabbi and opt for the heartbeat criteria instead of BSD, the consequence ought to be clear.

Heartening was the revelation that there were some excellent contributors to the symposium where their input helped clarify some of the issues. Disheartening was the fact that there are still those out there that can’t accept direction, leadership and cues from the established and recognized weighty rabbinical courts in Israel that reflect the consensus of the mainstream rabbinate and the backing of the Knesset and majority of Jews. The missed opportunity of fulfilling Isaiah’s words of Ki Mitzion Tezeh Torah (Isaiah 2:3); their application in real time, here and now is disappointing. Disheartening, of course are those participants who while they are seen as poskim haven’t honed and refined one of the tools that make the difference between a good posek and a great posek: the ability to arrive at halachic decisions not only by mastering text, but by integrating their cognitive / analytical halachic skills with a sensitivity to the ethical teachings unique to living and dying Jewishly.