Death vs. Brain Death in Judaism

For most of human history, determining death was not very complicated. As all bodily systems shut down within a relatively brief time span of one another, intricate nuance in defining death was unnecessary. However, as modern medical technology has enabled some bodily systems to function independently of others, and with the development of the ability to retrieve organs from bodies, the need for a precise definition has become crucial.

How one defines death affects decisions such as when to declare a patient dead, when to remove them from artificial respiration, and at what point a person’s organs may be retrieved.

Although the understanding of science and medicine was far less advanced when the Talmud was compiled, Rabbinic law presents general case material and principles that can be applied throughout generations. Thus, although the Talmud does not directly address contemporary definitions of death, it provides the principles that help contemporary rabbinic thinkers determine a Jewish definition of death.

The question of determining death arises in the Talmud (Yoma 85a) in the context of a discussion about what to do when a building collapses on Shabbat and it is uncertain if anyone is trapped in the rubble or whether the person is alive or dead. Because of the principle of pikuach nefesh, in which saving a life takes priority over Shabbat observance, the Talmud permits violating Shabbat in order to determine if anyone is under the rubble and then to continue rescue efforts if anyone is found to be alive. The Talmud then asks which area of the victim’s body one must examine to determine if he or she is alive or dead. One option is to uncover the rubble-buried victim until reaching the nose, seemingly indicating that the rescuer must look for signs of breathing. The second option is that one must uncover the victim until reaching the heart, seemingly indicating that one must look for signs of heartbeat. The Talmud concludes that when searching from the head down, it is sufficient to check only until the nose; when searching from the feet up, one opinion states that it is sufficient to check up until the victim’s heart, while another nevertheless requires checking up to the nose.

The traditional codifiers of Jewish law all rule that the primary test in determining whether a person is alive or dead is of the nose. The verse that the Talmud quotes to support this requirement is, “All in whose nostrils was the breath of the spirit of life” (Genesis 7:22), which implies that the “breath of the spirit of life” is what defines life.

Based on this foundation, widely divergent conclusions have been drawn about the Jewish definition of death and the correlating criteria. This topic is highly complex, with numerous opinions and many fine nuances. For the sake of clarity, we can divide Rabbinic approaches into

1. Those who believe this talmudic passage defines death as the irreversible and complete cessation of all vital bodily motion (including heartbeat), and
2. Those who conclude from this source that irreversible cessation of breathing is what determines death.

Opinion 1: Death Requires Cessation of All Bodily Motion

Rabbinic authorities in the first category, such as many Orthodox thinkers including Rabbi J.David Bleich of Yeshiva University, require complete cessation of bodily motion, including cessation of both cardiac and respiratory functions, to define death. Their argument is that although the Talmud seems to be concerned with respiration, breathing is merely the necessary test, but not the criterion for death. They read this Talmudic ruling as teaching that the criterion for death is actually the irreversible cessation of heartbeat, and that checking for breathing is not as the definition or criterion for death, but merely as one indication of death. However, they argue, a heartbeat is often imperceptible through a superficial chest exam, whereas checking for breathing in the nostrils is a more sensitive and accurate determination of continued cardiac activity.

Opinion 2: Death Requires Cessation of Breathing Only

Rabbinic authorities in the second category, such as the Israeli Chief Rabbinate, many Modern Orthodox rabbis and most non-Orthodox denominations, understand the simple reading of the Talmud to be determining death solely based upon respiratory criteria. This claim is especially supported by the conclusion of the Talmud and its proof text (mentioned above), as well as the fact that many textual variants and the version in the Jerusalem Talmud debate checking up until the nose or the abdomen, but do not mention the heart at all. (There are two versions of the Talmud: The Babylonian one, which is more widely referenced, and the Jerusalem one.) Because they interpret this text to mean that irreversible cessation of breathing is itself the proper criterion for pronouncing death, and not merely a test to determine other morbidities, some argue that brain death is death according to Jewish law, because one who is brain dead breathes only with help from a respirator.

Thus, there are very different ways of reading this seemingly simple talmudic text.

Does Brain Death = Complete Death?

Authorities who understand the Talmud passage as elucidating the proper criteria for determining death generally favor the respiratory criterion, and thus rule that brain death is death. However,those who see it merely as referring to appropriate tests would argue that brain death is not death, since brain dead patients may still have a heartbeat.

Another potentially relevant Talmudic teaching that is quoted by Rabbi Moshe Feinstein, a 20th-century American Orthodox scholar, may add a third possibility for defining death according to Jewish law. This teaching, based on a passage in the Mishnah (Mishnah Oholot 1:6), rules that the ritual impurity engendered by a corpse begins once a head is severed, even if the body is still convulsing. Based on this passage, some rabbinic authorities have argued that since the loss of neurologically controlled integrated motion in a decapitated person renders one dead, one who is brain dead is in fact dead according to Jewish law. Although the brain is still physically attached to the body, if it can be definitely demonstrated that brain functions have ceased, the patient is considered dead by Jewish law, even if one’s heart continues to beat.

Some Jewish scholars, such as Rabbi Moshe Tendler (an American Orthodox rabbi and Yeshiva University professor), have argued that both of these talmudic teachings — the one on the potential victim of a building collapse and the one on decapitation — are based on the same underlying thesis, which is that when the brain no longer integrates or controls the body’s function, a person is dead. In Talmudic times, these scholars argue, checking for respiration or cardiac criteria was simply the best way of indicating brainstem dysfunction – brain death – and therefore death.

Practical Implications

Determining death is thus predicated on how one understands the above talmudic principles.

1. Those who believe death is defined by complete cessation of all vital bodily motion, including heartbeat, will require confirmation that the heart has stopped beating and that there is no evidence of any possible signs of life remaining.
2. Those who focus on irreversible cessation of spontaneous respiration will look for proof that independent respiration will never return by showing that either the heart or the brainstem (which controls respiration) have ceased to function.
3. Those who define death as complete absence of the head will require confirmation that the head has been completely separated from the body. This would mean the death of each and every cell of the entire brain, which is much stricter than the legally (according to American and Israeli law) accepted definition of brain death (and recent research and sensitive diagnostics have shown that this state is exceedingly rare).

Since neurological criteria for determining death — the view that brain death is death —  is recognized in American and Israeli law, the withdrawal of medical support and interventions, as well as the process of organ retrieval, often ensue after this determination. This is usually acceptable to Reform, Conservative, some Modern Orthodox rabbis as well as the Israeli Chief Rabbinate.

Nevertheless, some others, including many Orthodox rabbis, do not accept brain death as death and for them and their adherents hospitals are encouraged — and in some places required — to provide reasonable accommodation for a brief period of time to families who do not accept this determination for religious reasons. If this time has passed (usually ranging between one to three days) and a family is still at odds with the medical team, hospitals in most jurisdictions may unilaterally withdraw medical interventions. The only ways to avoid this would either be to transfer the patient to another facility that is willing and able to take them, or to buy more time by petitioning the court for a temporary restraining order if one has a legitimate claim.

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Talmud

Pronounced: TALL-mud, Origin: Hebrew, the set of teachings and commentaries on the Torah that form the basis for Jewish law. Comprised of the Mishnah and the Gemara, it contains the opinions of thousands of rabbis from different periods in Jewish history.

halacha

Pronounced: hah-lah-KHAH or huh-LUKH-uh, Origin: Hebrew, Jewish law.

halachic

Pronounced: huh-LAKH-ic, Origin: Hebrew, according to Jewish law, complying with Jewish law.